United States: Holier Than Thou: Do Religious Employers Have the Right To Discriminate Against Employees?

Last Updated: December 9 2015
Article by Gabriel McGaha

Consider this parable: Mary, a paid Sunday school teacher desperately wants to have a child. Her physician advises her to begin undergoing IVF treatment to give her and her husband the best chance of conceiving. After meeting with the head parishioner to request time off for the procedure, the teacher is summarily terminated. The reason: the church believes that using IVF violates its tenets. Does the teacher have a viable claim against the church for employment discrimination?

She hast not a prayer for relief.

Although the Pregnancy Discrimination Act (which is part of Title VII) prohibits employers from discriminating against women “on the basis of pregnancy, childbirth, or related medical conditions,” a church is generally free to discriminate against a "ministerial" employee, even if the discrimination would be otherwise prohibited. The U.S. Supreme Court unanimously recognized this "ministerial exception" in Hosana-Tabor Evangelical Lutheran v. EEOC, 132 S. Ct. 694 (2012), finding that, based on the Free Exercise Clause of the First Amendment, a religious organization has an absolute freedom to decide who may carry out its mission. While the Hosana-Tabor Court did not lay out a precise definition for who may qualify as a "ministerial employee" for purposes of the exception, factors that it considered were: (1) the employee's title; (2) whether the employee was required to undergo significant religious training to qualify for the position; (3) whether the employee held herself out as accepting a call to religious service; and (4) the religious functions performed by the employee. The Court determined that as long as the employee qualifies as a "ministerial employee," a religious organization has a right to discriminate for employment purposes.

Now consider a different parable: Ruth visits a Baptist church seeking employment as a custodian. After conducting a pleasant interview with her, the pastor of the church decides that Ruth is just right for the job. At the end of the interview, the pastor asks Ruth to sign an acknowledgment stating that she will uphold the tenets of the Baptist Church. Ruth refuses to sign the acknowledgment and proceeds to inform the pastor that she is a practicing member of the Methodist denomination of the Christian Church. Does the church have the right to refuse to hire Ruth because she is not Baptist?

It dost.

Most prudent employers are keenly aware that Title VII of the Federal Civil Rights Act prohibits employers having at least 15 employees from refusing to hire or fire someone on the basis of race, color, national origin, gender, or religion. The federal statute, however, contains a specific exception (42 U.S.C. § 2000e-1(a)) that exempts religious organizations from the prohibition against discriminating on the basis of religion. In other words, religious organizations can discriminate against employees on the basis of religion.

This freedom to discriminate goes beyond the ministerial exception recognized in Hosana-Tabor because it applies to all employees, not just clergy or those serving in religious positions. Thus, a church can require its janitors, cooks, receptionists, and any other staff to be not only of a particular religion but also of particular denomination of a religion, even though there is no religious-function related to the employees' duties.

In addition to the general ability to discriminate on the basis of religion, religious employers often require employees to sign “mission statements” as a condition of employment. An employee’s failure to adhere to the statement's provisions, such as not becoming pregnant out of wedlock, can form the basis of a legal termination.

The practical effect of allowing religious organizations to discriminate against employees on the basis of religion is that these employees are essentially bound by their employer's religious views, notwithstanding the employees' own beliefs. This general principle has even been applied to corporations with religious owners, most notably in Burwell v. Hobby Lobby, wherein the U.S. Supreme Court held that the owners of Hobby Lobby, a national craft store chain, were exempted from certain provisions of the Affordable Care Act and were, therefore, not required to provide insurance coverage to their employees for contraception. (Note: the Supreme Court is scheduled to hear additional requests for exemptions in Zubik v. Burwell, in the upcoming term).

The last parable: Judith applies for a position as a secretary at a local church. The church, however, adheres to a religious tenet that does not allow women to be paid employees. Should the church inform Judith that it will not hire her because of her gender?

It shall not.

It is important for religious organizations to be aware of the limitations on Title VII's religious staffing protection. While a faith-based organization is free to hire only staff who share its religious beliefs, the organization may not discriminate on the basis of race, color, national origin, or gender.

The Revelation: A religious organization's right to discriminate against current and prospective employees can raise complex legal questions. To reduce the likelihood of civil rights liability, these organizations should make sure that their respective missions or statements of faith do not discriminate based on membership in a protected class other than religion and are properly documented and presented to prospective employees before hiring decisions are made. These employers may also wish to require prospective applicants to sign a statement indicating that he/she has read and understood the rules, agrees with all of them, and intends to abide by them. Once an employee is hired, the organization should also consider reiterating its mission in an employee handbook, which the employee should sign. In the event of a dispute, these steps will serve not only as evidence of the organization's commitment to a particular religious doctrine, but will also show the employee's agreement to adhere to it.

Even after taking these steps, it is imperative that religious organizations be uniform in their application of their religious tenets on employees who serve a non-religious function. An otherwise legal employment decision can, nonetheless, result in liability if a religious employer fails to apply its religious tenets equally among similarly situated employees.

Finally, it is important to note that there will be subtle distinctions in this area of law depending on jurisdiction. Religious organizations should consult an attorney to determine their rights and obligations as these relates to their employees and to make sure their employment policies are clear and appropriately disseminated.

Previously published in HR Professionals Magazine on December 3, 2015.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Gabriel McGaha
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