Is a second Hobby Lobby case in the works? Meggan Sommerville is a sixteen-year Hobby Lobby employee in Aurora, Illinois who has been denied access to the store’s restroom because she is transgendered. Sommerville underwent legal gender transition in 2010 but has not yet had gender-reassignment surgery.
According to her complaint, Sommerville, whom state-issued identification as well as employer health benefit insurance recognize as female, must use the restroom at neighboring businesses or public facilities but the management will not allow her to use the women’s restroom until she has the surgery. Employer-provided insurance also paid for the transitional hormones and therapy.
So far Hobby Lobby has not made a public statement about the complaint which alleges that Sommerville has “experienced over-anxiousness, embarrassment, shame, depression, anxiety, emotional distress, feelings of helplessness and has trouble sleeping.”
Getting past the issue of the type of accommodation being sought, what should be of interest is that Sommerville’s attorneys have stated that Hobby Lobby’s refusal to accommodate her stems from the religious ideology of the corporate leadership which refuses to budge on the issue.
Hobby Lobby is likely going to make an argument that its discriminatory practice is protected because it is part of Hobby Lobby’s corporate religious beliefs to deny transgender employees access to company restrooms. But this argument is even more of a stretch than it was when it came to the contraception mandate – after all, Sommerville has been employed by Hobby Lobby for sixteen years and the company has no problem with her being the face of the company to customers every day and profiting from her work – the only line they have drawn is at the restroom door.
If Sommerville wins the case, and wins on appeal, this case could end up limiting the application of the Religious Freedom Restoration Act (RFRA) to corporations, but if the courts do not distinguish between individual and corporate rights, then it could cause major damage to protections that individuals were designed to receive under RFRA.
On another related issue, we have been expressing concerns about the effect of the first Hobby Lobby case on piercing the corporate veil, which shields corporate owners personally from lawsuits brought against their corporations. In Hobby Lobby v. Burwell, the U.S. Supreme Court found that corporations can reflect the religious views of corporate owners when it came to contraceptives.
Now the courts might decide whether liability for a discrimination claim brought against Hobby Lobby can pass through to the corporate owners and allow them to be personally responsible for what happens. After all – corporate veils have to be actively protected by company owners, and showing that the corporation is nothing but the alter ego of the owner is enough to cut through the veil.
We will be watching this case closely.