Three San Francisco Giants pitchers are facing backlash after writing a Bible passage on their Pride Night caps during a team-sponsored LGBTQ+ celebration. The players cited Genesis 9:12-16, the biblical passage describing the rainbow as God's covenant with humanity. Critics viewed the gesture as a deliberate rebuke of Pride Month and the LGBTQ+ community. The Giants apologized for the pain caused. Major League Baseball warned the players for violating uniform rules.

Predictably, the story has become another front in America's never-ending culture war.

But strip away the politics and outrage for a moment, and what's left is a workplace issue every employer should understand.

While the setting is a Major League Baseball clubhouse, the legal and practical issues are no different from those employers confront every day.

The Giants wanted to send a message of inclusion. The players wanted to express their religious beliefs. Those objectives collided in public.

Welcome to the modern workplace.

Many commentators are treating this controversy as a simple morality play. It isn't.

For employers, this is a textbook example of what happens when two different Title VII protections collide.

On one side sits religious accommodation. Employees generally have the right to express sincerely held religious beliefs, and employers must accommodate those beliefs unless doing so creates an undue hardship.

On the other side sits protection against harassment and discrimination based on sexual orientation. Employers have a legal obligation to provide a workplace free from unlawful harassment and to ensure LGBTQ+ employees are treated with dignity and respect.

What happens when one employee's expression of faith is perceived by another employee as hostility toward their identity?

That's where the easy answers disappear.

Too often, employers approach these conflicts as though one protected class should automatically prevail over another. The law doesn't work that way. Title VII protects both religious employees and LGBTQ+ employees. An employer that reflexively sides with one group without considering the rights of the other creates legal risk and workplace discord.

That does not mean employers should sit on the sidelines. They shouldn't. But neither should they become arbiters of competing belief systems. An employer's role is not to decide whether a religious viewpoint or a social viewpoint is more worthy of protection. Its role is to regulate workplace conduct. The focus should be on behavior and workplace impact, not ideology. In other words, employers should protect beliefs and referee conduct.

The better approach is to focus less on the viewpoint being expressed and more on its workplace impact.

Is the conduct directed at a particular employee? Is it creating a hostile work environment? Is it interfering with someone's ability to do their job? Is it merely an expression of personal belief, or has it crossed the line into harassment or discrimination?

Those questions matter because Title VII does not require employers to eliminate disagreement. It requires employers to prevent unlawful harassment.

That's an important distinction.

Employees are entitled to hold different religious, political, and social beliefs. They are not entitled to harass one another because of those beliefs. Likewise, employees are entitled to be free from discrimination because of their sexual orientation, but that protection does not automatically prohibit coworkers from expressing religious viewpoints with which they disagree.

The challenge for employers is finding the line between protected expression and unlawful conduct. That line is rarely bright, often controversial, and increasingly common in today's workplace.

The Giants attempted to navigate that tension in their response. The organization reaffirmed its support for Pride Night while also acknowledging that individual players may make personal choices regarding participation in team-sponsored events.

That approach will satisfy almost no one.

Some LGBTQ+ advocates argue the players should have faced discipline because their conduct undermined the purpose of the event. Others argue the players should have been free to express their faith without criticism.

Both sides miss an important point.

Inclusion isn't tested when everyone agrees. It's tested when people don't.

Any employer can create a workplace that welcomes people who share the same values. The real challenge is creating a workplace where employees with fundamentally different beliefs can coexist professionally and respectfully.

That doesn't mean every form of expression must be permitted. Employers can and should enforce neutral workplace rules. MLB's warning reportedly stemmed from a uniform-policy violation, not the content of the message itself. That's an important distinction. Content-neutral rules are often far easier to enforce than rules that appear to target a particular viewpoint.

The Giants controversy isn't really about baseball. It's about a challenge employers face every day. When religious expression and LGBTQ+ protections appear to collide, the answer isn't to choose a side. The answer is to apply the same standard to everyone, focus on conduct rather than ideology, and remember that Title VII protects both groups. The hardest workplace issues arise when two protected rights point in different directions. That's exactly when employers need to be most careful.

My life's biggest regret is that I never studied abroad.

Imagine you walk into court with what appears to be a strong case. The law is on your side. The facts are on your side. Even the judge seems troubled by what the government is doing. And then you lose anyway. Not because you're wrong. Because the court says it lacks the power to decide whether you're right.

That's essentially what happened last week in FreeState Justice v. EEOC.

The case arose from the EEOC's response to President Trump's January 2025 executive order recognizing only two sexes, male and female. Following that order, then Acting EEOC Chair Andrea Lucas announced that the agency was rolling back what it characterized as the prior administration's "gender identity agenda."

Words turned into actions.

According to the lawsuit, the EEOC stopped processing certain categories of gender-identity discrimination charges. The agency resumed investigating some claims involving hiring, firing, and promotion decisions. But it allegedly continued refusing to process claims alleging harassment based on gender identity and retaliation against employees who complained about such discrimination.

In practical terms, transgender employees could still file certain discrimination charges with the EEOC. But if a transgender employee alleged workplace harassment or retaliation, the agency allegedly would not investigate those claims.

The lawsuit also alleged that the EEOC directed state fair-employment agencies that it would no longer reimburse them for investigating gender-identity charges on the agency's behalf.

The plaintiff, an LGBTQ+ legal-services organization called FreeState Justice, argued that these policy changes effectively denied transgender workers access to protections that Title VII guarantees.

They have a point. 

The Department of Justice just issued a legal opinion claiming that disparate impact liability is unconstitutional because it supposedly "incent[s] — and even coerce[s] — employers to make race-based decisions to avoid liability."

That's a remarkable claim.

It's also a fundamental misunderstanding of how disparate impact law actually works.

Disparate impact claims exist precisely because they target facially neutral policies. No one is alleging intentional discrimination. No one is claiming that an employer adopted a policy because of race, sex, or some other protected characteristic.

The entire point of disparate impact is that a neutral rule can nonetheless operate as an unnecessary barrier to employment opportunities.

In fact, that's exactly why the Supreme Court recognized disparate impact liability in Griggs v. Duke Power Co. in 1971. The employer in Griggs required a high school diploma and certain aptitude test scores for transfers and promotions. The policies were facially neutral. They said nothing about race. Yet they disproportionately excluded Black employees and bore little relationship to successful job performance. The Supreme Court held that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." The Court's point was simple: employment criteria should measure a person's ability to perform a job, not create arbitrary barriers that disproportionately exclude protected groups.

Think aptitude tests. Physical fitness standards. Educational requirements. Criminal background checks. Credit checks. Hiring algorithms. AI screening tools.

None of these practices are discriminatory on their face. Yet all have the potential to disproportionately exclude certain protected groups.

Title VII's disparate impact framework asks a simple question: Does the employer have a legitimate business reason for using the practice?

If the answer is yes, the employer wins.

That's the part DOJ's opinion conveniently ignores.

Disparate impact liability does not require employers to adopt quotas. It does not require race-based hiring. It does not require preferential treatment.

It requires employers to justify employment practices that disproportionately exclude protected groups.

That's it.

An employer that uses a criminal background check because it is job-related and consistent with business necessity has a defense. An employer that uses a validated aptitude test tied to actual job performance has a defense. An employer that can demonstrate a legitimate need for a particular hiring criterion has a defense.

The law does not say, "You must hire more people from Group X."

The law says, "If your policy disproportionately screens out Group X, explain why the policy is necessary."

Those are very different things.

What's especially strange about DOJ's position is that it essentially assumes employers will engage in intentional discrimination to avoid being accused of unintentional discrimination.

That logic makes no sense.

If an employer responds to disparate impact concerns by making race-based employment decisions, that employer has created an entirely different legal problem. Title VII already prohibits intentional discrimination.

The cure for a potentially problematic employment practice is not race-conscious decision-making. The cure is validating the practice, modifying it, or eliminating it if it lacks a sufficient business justification.

The practical implications of this position could be enormous.

Consider criminal background checks.

For years, employers have been advised to carefully tailor criminal history screens to the requirements of specific jobs because broad exclusions can disproportionately affect certain racial groups. Employers have been encouraged to consider the nature of the offense, the time elapsed since conviction, and the relationship between the offense and the job.

Under DOJ's new theory, those concerns could largely disappear.

The same would be true for educational requirements that aren't actually necessary for job performance. Aptitude tests that have never been validated. Physical requirements that exceed what the job actually demands. AI hiring tools that systematically exclude qualified candidates.

Ironically, many of these are the very types of employment criteria that gave rise to disparate impact liability in Griggs more than five decades ago.

The question would no longer be whether these practices create unnecessary barriers to employment.

The question would be whether someone can prove intentional discrimination.

That's a much higher hurdle.

And that's exactly why disparate impact has been a cornerstone of civil rights enforcement for more than half a century.

Discrimination doesn't always announce itself with a racist memo or a smoking-gun email. Sometimes it appears through systems, policies, and practices that produce exclusionary outcomes despite facial neutrality.

That's why Congress codified Griggs' disparate-impact framework in the Civil Rights Act of 1991. That's why the Supreme Court has repeatedly recognized it. And that's why the EEOC has spent decades enforcing it.

The DOJ's opinion may signal the administration's enforcement priorities. It may embolden employers to challenge disparate impact claims. It may even preview future litigation aimed at persuading courts to revisit longstanding precedent.

But that would require overturning more than fifty years of settled law dating back to Griggs v. Duke Power.

Let's not pretend that disparate impact liability somehow forces employers to engage in intentional discrimination. The doctrine exists because facially neutral employment practices can sometimes function as unnecessary barriers to equal employment opportunity. That's not a bug in Title VII. It's one of the statute's core features.

Eliminating disparate impact liability would not create a more merit-based workplace.

It would simply make it harder to challenge employment barriers that disproportionately exclude protected groups while serving little or no legitimate business purpose.

If your ADA accommodation policy starts with "take unpaid leave," you're doing it wrong.

Just ask the 15 Dunkin' Donuts franchisees that recently agreed to pay $250,000 to settle an EEOC disability discrimination lawsuit.

According to the EEOC, these franchisees maintained a policy that refused to provide reasonable accommodations to employees with medical restrictions. Instead, workers were placed on unpaid, indefinite leave until they could return to work with no restrictions whatsoever. In other words, if an employee wasn't "100% healed," they weren't working.

The EEOC calls this a "100%-healed" policy. The ADA calls it unlawful.

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