Redhead v. Conference of Seventh-day Adventists, 566 F.Supp.2d 125 (E.D.N.Y. 2008)
Article summary. Federal laws, as well as the laws of many states, permit churches and religious schools to discriminate in employment decisions on the basis of religion. As a result, religious employers are free to employ only persons of a certain religious faith. They also are permitted to impose their religious standards upon their employees, and they may discipline or dismiss employees who violate those standards. However, religious employers may not apply religious standards in a way that discriminates against a protected class of employees, such as women, minorities, the aged, or disabled. A federal appeals court ruled that a church school may have violated a federal ban on employment discrimination based on pregnancy when it dismissed a female employee who was four months pregnant on the day she was married. The court conceded that religious schools can impose religious standards upon their employees, but it concluded that there was substantial evidence refuting the school’s claim that “religious standards” were the basis for its decision to terminate the employee.
• Key point. Employees and applicants for employment who believe that an employer has violated a federal civil rights law must pursue their claim according to a specific procedure. Failure to do so will result in the dismissal of their claim.
• Key point. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.
Many churches have dismissed employees for failure to comply with church moral teachings. While federal and state laws ordinarily protect the right of churches to impose their moral standards on their employees, there are exceptions. For example, a church may be legally liable for applying its moral standards in a way that discriminates against an employee who is a member of a protected class under a federal or state civil rights law. This was the issue in a recent case in New York. A federal district court ruled that a church school may have violated a federal ban on pregnancy discrimination by terminating a female teacher who was pregnant on the day she was married. While the school insisted that its decision was based solely on its moral teachings, the court was not persuaded.
Church leaders who expect church employees to abide by church moral teachings should carefully review this article in order to minimize the risk of a discrimination lawsuit.
Facts
A woman (the “plaintiff”) taught a fifth grade class at a church-operated school. She was required to teach one hour of Bible study per day and spent the remainder of her day teaching secular subjects.
The school required all teachers to sign an employment agreement prior to the start of each academic year. The employment agreement states that the employee and employer shall “be bound by” various specified policies. One of these policies stated:
Termination is discontinuance of salary and employment at any time by the employing organization, at their sole discretion. An employee may be terminated for, but not limited to, the following reasons: … Immoral or unsatisfactory personal conduct inconsistent with the principles of the church.
Another policy listed “fornication” under “grievous sins for which members shall be subject to discipline.” Plaintiff did not recall being given a copy of these policies and also denied being aware that “immoral or unsatisfactory personal conduct” could be grounds for termination. She claimed to be unaware that having sexual relations outside of marriage was contrary to the teachings of the church.
Shortly after the start of her third academic year, the plaintiff informed the school principal that she was pregnant; that she intended to follow through with the pregnancy; and that she did not intend to marry the father of the unborn child.
Based on her decision not to marry the child’s father, the principal informed plaintiff that she would have to bring the matter to the attention of the governing board of the school and initiate termination proceedings. In a subsequent meeting, the board voted to terminate plaintiff “in that her pregnancy outside of marriage was evidence of fornication.” The principal thereafter sent the plaintiff a letter informing her that the board had voted to terminate her employment for exhibiting “immoral or unsatisfactory personal conduct inconsistent with the principles of the church.”
The plaintiff sued the church that operated the school, claiming that it had unlawfully discriminated against her on the basis of pregnancy in violation of Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment on the basis of several grounds including gender or pregnancy. Title VII applies to any employer engaged in interstate commerce and having 15 or more employees.
In arguing that she was singled out for termination because of her pregnancy, plaintiff maintained that other teachers at the school were having sexual relations outside of marriage, which she knew based on “talking with them about their relationships.” However, she admitted to having no knowledge whether any member of the school administration had ever been informed of such conduct. She testified that she was aware of one teacher who taught at the school while pregnant and separated from her husband during at least part of the pregnancy.
The church insisted that the “ministerial exception” required the plaintiff’s lawsuit to be dismissed. The ministerial exception generally prohibits the civil courts from resolving employment disputes between churches and their ministers.
The Court’s Ruling
The Ministerial Exception
The church insisted that the ministerial exception required the plaintiff’s lawsuit to be dismissed. The ministerial exception generally prohibits the civil courts from resolving employment disputes between churches and their ministers. The court agreed that this rule has been applied in some cases to non-ordained church employees whose primary duties consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” However, the court concluded that the ministerial exception did not apply in this case since plaintiff’s teaching duties were primarily secular, and her religious duties were limited to one hour of Bible instruction per day and attending religious ceremonies with students once per year. The court stressed that there was no evidence that the plaintiff included church teachings when she taught secular subjects.
However, the court cautioned that even if a church employee’s primary duties do not implicate the ministerial exception, it may resolve the employee’s discrimination claims only if can do so without “impermissibly entangling the court in matters of religious doctrine” in violation of the First Amendment’s nonestablishment of religion clause. The court noted that the risk of impermissible entanglement is greatest “in situations … where a secular court is asked to second-guess a religious organization’s decision to terminate a member of its clergy.” In contrast, “employment disputes that a court can decide without having to question the validity or plausibility of a religious belief, or having to favor a certain interpretation of religious doctrine, do not pose a similar risk.” Indeed, judicial resolution of a discrimination claim brought by a lay employee against a religious employer “generally does not run the risk of excessive entanglement, as such an inquiry constitutes only the sort of routine regulatory interaction which involves no inquiries into religious doctrine, no delegation of state power to a religious body, and no detailed monitoring and close administrative contact between secular and religious bodies.”
Proving Discrimination
The courts have developed a “three stage” process for evaluating discrimination claims:
Stage 1-The employee must prove a “prima facie case”
A claim of discrimination based on pregnancy, like any other discrimination claim under Title VII, requires that the plaintiff establish a “prima facie case” of unlawful discrimination by showing that
- she was pregnant
- she was qualified for her job
- she was subjected to an adverse employment decision, and
- there was a connection between her pregnancy and the adverse employment decision
- A prima facie case raises an inference of discrimination that the employer must rebut.
- Stage 2-The employer must prove a nondiscriminatory basis for its actions
- If the plaintiff successfully establishes a prima facie case, the burden shifts to the employer to demonstrate a “legitimate, nondiscriminatory reason” for its actions. If the employer fails to satisfy this burden, the plaintiff wins.
- Stage 3-The employee must prove discrimination
- If the employer proves a nondiscriminatory basis for its actions, the presumption of intentional discrimination is negated, and the employee must then prove by a preponderance of the evidence that the employer intentionally discriminated against her. She may do this by showing that the “nondiscriminatory” reasons the employer offered were not credible, but were merely a “pretext” for intentional discrimination. Pretext may be shown “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s purported explanation is unworthy of credence.”
- Here, there was no dispute that the plaintiff established a prima facie case of pregnancy discrimination. As a pregnant woman she was a member of a protected class; she was qualified for the teaching position at the school; and she suffered an adverse employment action by being terminated. The church countered that plaintiff was not terminated because of her pregnancy but because of her failure to abide by the church’s doctrine that fornication is a sin.
- Where an employer has articulated a religious reason for the allegedly discriminatory adverse employment action, the plaintiff may not challenge the plausibility of that religious reason. The court must presume that “an asserted religious motive is plausible in the sense that it is reasonably or validly held.” Nevertheless, “an employer’s simple assertion of a religious motive usually will not prevent a reviewing court from asking whether that motive was in fact a pretext … [A]nswering this question is only foreclosed where it would force the [court] to make a judgment about a religious belief. A plaintiff will usually be able to challenge as pretextual the employer’s justification without calling into question the value or truthfulness of religious doctrine …. Thus, when the pretext inquiry neither traverses questions of the validity of religious beliefs nor forces a court to choose between parties’ competing religious visions, that inquiry does not present a significant risk of entanglement.” And, “it remains fundamental that religious motives may not be a mask for sex discrimination in the workplace.”
- The court concluded that the First Amendment did not prevent it from deciding “whether a religious employer discriminated against a lay employee on account of sex and pregnancy, or because of an evenly applied religious and moral code.”
- The plaintiff’s allegation of pregnancy discrimination
- The court concluded that the plaintiff had provided “enough evidence to create a genuine issue of material fact as to whether defendant’s policy against fornication was applied against her in a discriminatory manner. And although … the plaintiff must concede both the existence of defendant’s policy and the genuineness of defendant’s belief in that policy, a jury remains the proper instrument for determining whether it was pregnancy or fornication that caused the defendant to dismiss her.” The court added:
No one questions the school’s religious belief that sex outside marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes that she engaged in forbidden conduct. The only question to be decided falls well within the competence of the courts: determining whether the plaintiff’s evidence established that men and women were treated the same on this issue.
- The court added that “a number of courts have been called upon in the past to distinguish between a secular employee’s lawful discharge for violating a religious policy against fornication and an unlawful discharge on account of pregnancy, and to the court’s knowledge, none have [sic] found excessive entanglement inevitable.”
- The court cautioned that had plaintiff’s duties at the school “primarily been of a religious or spiritual nature, her discrimination claim might well be constitutionally proscribed …. [Existing precedent] likely prevents a clergy member … from ever being able to challenge as pretextual a discharge that his employer justifies on a religious ground …. However, plaintiff is not a clergy member and her duties at the school were primarily secular …. As a secular employee, plaintiff’s discrimination lawsuit comports with the First Amendment so long as it will not cause excessive government entanglement with religion.”
- Relevance to church leaders
- A decision by the federal district court in New York has limited effect. It is not binding in any other state, or even upon other federal district courts in New York. Nevertheless, opinions by federal courts often are given considerable weight by state and federal courts in other jurisdictions, and in addition the case represents one of the most extended discussions of church employment practices. As a result, it may be given special consideration by other courts. For these reasons the case merits serious study by church leaders in every state. With these factors in mind, consider the following:
- 1. Application of civil rights laws to churches and other religious employers. Do state and federal civil rights laws apply to churches? Federal laws banning discrimination in employment are summarized in a table that accompanies this article. This table defines “covered employers” under each federal law so church leaders can determine whether or not their church is covered. Note that churches will be covered under most federal employment and civil rights laws only to the extent that they are engaged in interstate commerce. This important requirement is addressed in Volume 3, section 8-09 of my book, Pastor, Church & Law, 4th edition.
- The church school in this case was sued for violating the ban on pregnancy discrimination in employment under Title VII of the Civil Rights Act of 1964. The court apparently assumed that the school was engaged in commerce, and had the required number of employees (15), since neither issue was addressed in the court’s opinion.
- Most states have their own civil rights laws, and it is more likely that these will apply to churches since there is no “commerce” requirement and the required number of employees is generally lower.
- Resource. For a full explanation of the application of civil rights and employment laws to churches, see chapter 8 in the fourth edition of Richard Hammar’s book, Pastor, Church & Law (4th ed. 2008), available from Your Church Resources, the publisher of this newsletter, by calling 1-800-222-1840.
- 2. Employment decisions based on morals. Can a church lawfully discriminate against an employee or applicant for employment on the basis of moral teachings? In some cases, religious organizations will be able to demonstrate that their moral teachings are integral to their religious beliefs, and therefore employment discrimination based on moral teachings is a form of religious discrimination that is permitted by Title VII.
Tip. To avoid any confusion, religious organizations that take an adverse employment action against an employee or applicant for employment as a result of the organization’s moral teachings should word their determination with references to relevant passages from scripture. This will make it more likely that a court will view the decision as a protected form of religious discrimination.
- The court observed in this case that neither the Teacher’s Handbook nor the Affirmation explicitly stated, nor was the plaintiff ever informed, that premarital sex was a violation of the church’s moral standards and therefore was a basis for discipline or dismissal.
Tip. It is common for church employment handbooks or employment contracts to state that employees will be expected to conform to the church’s moral teachings. Some churches spell out with a high degree of specificity the moral teachings employees will be expected to follow. Other churches use vague references to moral or religious teachings. In the latter case, it is a good practice for the handbook or contract to specify that the church board, or some other officer or body, has the sole and final authority to determine the church’s moral tenets. This will reduce any chance of confusion as to the meaning of these terms.
- 3. Factors indicating wrongful discrimination. The most important aspect of this case was the court’s conclusion that while religious employers may discriminate on the basis of religion in their employment decisions, they may not use “religious standards” as a “pretext” for discriminating against an employee who a member of a protected class under state or federal law. While the school insisted that it terminated the plaintiff solely on account of her violation of the church’s moral teachings regarding premarital sex, the court concluded that she had presented sufficient evidence of unlawful discrimination to allow the case to go to a jury.
- The court pointed to the following two ways in which the plaintiff had undermined the school’s claim that its religious standards were the sole basis for its decision to terminate her:
- (1) Pretext
- A religious employer can dismiss an employee for violating the employer’s moral standards. This is a permitted form of religious discrimination by a religious employer. However, employees who are dismissed for violating such standards, and who are members of a protected class under a federal or state civil rights law, may be able to sue the employer for discrimination if they can prove that the “religious” reason for the termination is pretextual or untrue. This is a very important point. In this case, if the plaintiff can prove that the school’s alleged “religious” basis for terminating her was a mere pretext, then this would expose the school to a pregnancy discrimination claim.
- What evidence could the plaintiff produce to demonstrate that the school’s “religious” basis for terminating her was pretextual? The court did not answer this question directly, but another federal court, in a similar case, provided the following examples of evidence tending to prove pretext:
- • Complimentary employee evaluations.
- • the school’s consideration of other options for some time before opting to terminate the employee.
- • The school focused more on the fact of the employee’s pregnancy than her sexual activity. For instance, school officials referred to the employee’s “pregnancy” rather than her sexual actions.
- (2) Inconsistent application of moral standards
- Another way in which the plaintiff could undermine the school’s “religious” basis for its decision to terminate her would be the application of its premarital sex policy in a discriminatory manner. In particular, the court noted that if the policy only was enforced against pregnant women, or women in general, then this would be an example of prohibited sex discrimination under Title VII.
- In arguing that she was singled out for termination because of her pregnancy, plaintiff maintained that other teachers at the school were having sexual relations outside of marriage, which she knew based on “talking with them about their relationships.” She testified that she was aware of one teacher who taught at the school while pregnant and separated from her husband during at least part of the pregnancy.
- 4. Lay employees or clergy. The court drew a distinction between lay employees and clergy. It concluded that the First Amendment did not prevent it from deciding “whether a religious employer discriminated against a lay employee on account of sex and pregnancy, or because of an evenly applied religious and moral code,” and that:
No one questions the school’s religious belief that sex outside marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes that she engaged in forbidden conduct. The only question to be decided falls well within the competence of the courts: determining whether the plaintiff’s evidence established that men and women were treated the same on this issue.
- However, the court cautioned that had the plaintiff been a minister, or had her duties at the school “primarily been of a religious or spiritual nature, her discrimination claim might well be constitutionally proscribed …. [Existing precedent] likely prevents a clergy member … from ever being able to challenge as pretextual a discharge that his employer justifies on a religious ground.”
- However, the plaintiff was not a clergy member and her duties at the school were primarily secular. As a secular employee, her discrimination lawsuit did not violate the First Amendment “so long as it will not cause excessive government entanglement with religion.”
- Caution. Churches that dismiss female employees who are single and pregnant, but do not dismiss male employees who engage in extramarital sexual relations, are exposing themselves to a possible wrongful discrimination claim.
- 5. Procedure for proving discrimination. The court provided an excellent summary of the analysis the federal courts apply in evaluating employment discrimination cases. When a church is charged with discrimination by a former or current employee, this case will provide church leaders with a good summary of the analysis a court will follow in deciding if discrimination occurred.
- 6. The relevance of performance evaluations. Other courts, in similar cases, have concluded that positive employee evaluations are evidence that a religious employer’s “religious” basis for terminating an employee is pretextual and exposes the employer to liability under state or federal
religious standards were so important, then how could someone who violated them receive an exemplary performance evaluation? Tip. Does your church evaluate employees? If so, be sure the evaluations are objective. In addition, be aware that positive evaluations may be used against you if you dismiss an employee for violating the church’s moral teachings, and one or more positive evaluations were issued after church leaders became aware of the employee’s violation of the church’s moral teachings.
- 7. Communicating employment standards to employees. The school had all employees sign an “employment agreement” prior to the start of each academic year. The agreement stated that the employee and employer would “be bound by” various specified policies. One of these policies stated: “Termination is discontinuance of salary and employment at any time by the employing organization, at their sole discretion. An employee may be terminated for, but not limited to, the following reasons: … Immoral or unsatisfactory personal conduct inconsistent with the principles of the church.” Another policy listed “fornication” under “grievous sins for which members shall be subject to discipline.”
- The plaintiff did not recall being given a copy of these policies and also denied being aware that “immoral or unsatisfactory personal conduct” could be grounds for termination. She claimed to be unaware that having sexual relations outside of marriage was contrary to the teachings of the church.
- It is an excellent practice for religious employers to have new employees sign a statement agreeing to be bound by the employer’s personnel policies. This eliminates any claim by employees that they “didn’t know” they were expected to abide by such standards. It is imperative that these forms be retained since they will be vital in the employer’s defense to a subsequent discrimination claim.
- Note, however, that such policies will not protect a religious employer against a discrimination claim by a lay employee who, like the plaintiff in this case, argues that the policy is not being applied fairly or consistently.
- 8. Insurance. It comes as a surprise to many church leaders that they do not have insurance to cover employment discrimination claims. This means that a church is responsible for retaining and paying its own attorney, and paying the full amount of any judgment or settlement.
Tip. Church insurance policies generally do not cover employment-related claims, including discrimination. If your church is sued for wrongful employment discrimination, you probably will need to retain and pay for your own attorney, and pay any judgment or settlement amount. You should immediately review your liability policy with your insurance agent to see if you have any coverage for such claims. If you do not, ask how it can be obtained. You may be able to obtain an endorsement for “employment practices.” Also, a “directors and officers” policy may cover these claims.
- Dismissing an Employee for Violation of a Church’s Moral Teach
- Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:
- Is there sufficient evidence to support our decision?
- Did we inform the employee in an employee handbook or other document that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?
- How will we describe the basis for our decision? The best description will refer to the church’s doctrinal tenets, and scriptural citations. Stay away from words such as “pregnancy” that can have a secular meaning, and that diminish the religious exemption available to churches under most federal and state civil rights and employment laws.
- How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally, or have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations, but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that the church’s actions are consistent with its previous practice, and that an employee who is protected against discrimination by state or federal law not be treated less favorably than other employees.
- Have we consulted with an attorney before taking final action?
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