Josh Fershee argues:
[An incorporated entity] should be able to take on the race, gender, or religion of its primary shareholders (or members) in proper circumstances to protect against discrimination. The Fourth Circuit opinion states: “We hold that a corporation can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI.” Seven other circuit courts “have concluded that corporations have standing to assert race discrimination claims.” This seems proper, because a minority-owned company might be denied a contract or be treated differently in the execution of a contract because of the race of the primary shareholders. It would be improper to deny protections for the shareholders/members just because they chose to avail themselves of entity protections to conduct their business.
The same should be true in cases of religion and gender. Suppose, for example, an all-female construction company were denied a bid because the city seeking the project thinks construction is “man’s work to be done by men.” Similarly, protections should be available if a Catholic-owned company were to lose a bid because the county seeking the bid was run by people who didn’t “trust Catholics to finish anything on time.” (Disclosure: I was raised Catholic, and while I most certainly don’t speak for any other Catholics, my comfort level leads me to use Catholics in such examples.)
Thus, an entity should be able to take on the race, gender, or religion of the shareholders/members to fight cases where the same discrimination against an individual would stand. Obviously, then, having a member of a certain race, gender, or religion as a shareholder, member, director, or employee would not be sufficient to make the claim. The entity would also have to demonstrate: (1) that the alleged discrimination was predicated on race, gender, or religion, and (2) the entity (and not just certain individuals) was identified with the group against whom the discrimination was targeted.
The implications for Hobby Lobby and Conestoga Wood are obvious. Fershee argues that they are not entitled to a religious identity because they have not been discriminated against on the basis of religion.
But why limit the identity of a closely held corporation with that of its shareholders to discrimination cases?