The Braidwood Exploit: On the RFRA Declaratory Judgment Class Action and Title VII Employer Liability

This Article identifies a distinctive legal strategy for using the Religious Freedom Restoration Act (“RFRA”) to obtain an exemption for for-profit businesses to Title VII liability for their religiously motivated discrimination against gay and transgender employees and job applicants. The litigation strategy involves a declaratory judgment class action against the Equal Employment Opportunity Commission under RFRA. We primarily show how this strategy tries to exploit a key ambiguity in the compelling interest inquiry in RFRA and pre-1990 Free Exercise Clause doctrine, i.e., how to specify the size of the set of persons other than the RFRA claimant who would likely qualify for the exemption that the RFRA claimant wants if the RFRA claimant prevails—what we call the “putative RFRA exempted set.” We also show how well this litigation strategy may extend to exempt religiously motivated employers from liability under state employment discrimination law. In so doing, this Article contributes to the ongoing debate about the scope of exemptions for religiously motivated businesses.