Church Law and Tax 1993-07-01 Recent Developments

Employment Practices

Richard R. Hammar, J.D., LL.M., CPA

• Key point: Under federal law, and the corresponding laws of some states, religious organizations have the right to discriminate in employment decisions on the basis of the religious affiliation of applicants.

• Can a church-affiliated adoption and child care agency legally deny employment to applicants who are not Christians? That was the issue presented to the Texas Supreme Court in a recent case. A Jewish woman applied for a position as a senior adoption worker with a Presbyterian adoption and child care agency. She was sent a rejection letter informing her that the agency hired only Christians. She filed an unlawful discrimination claim with the Texas Commission of Human Rights (the “Commission”). After investigating the claim, the Commission sued the agency for violating the Texas Human Rights Act which generally prohibits discrimination in employment on the basis of “race, color, handicap, religion, sex, national origin, or age.” The agency claimed that the Act permitted religious organizations to discriminate on the basis of religion with respect to any position “connected with the performance of religious activities” by the organization. It pointed out that it was organized in 1904 as a religious organization; that its articles of incorporation recite its mission as the provision of Christ-centered child care services; that the IRS has recognized it to be a tax-exempt religious corporation; that most of its funding is received from local Presbyterian churches and individual donors; that it depends on its adoption workers to carry out its religious mission, and views these workers as the “primary link” between itself and prospective adoptive parents; that it does not hire senior adoption workers who are not Christians and who do not sign a statement of Christian commitment; and that it only places children in the homes of couples who are church-oriented and active in a local church, and accordingly it relies on its senior adoption workers to ascertain whether or not this standard is satisfied in each case. The agency further noted that the Jewish applicant had admitted that she “did not know what Christianity was and did not believe that it was a religion,” did not “understand the concept of Christ-centered child care or the notion of distinctively Christian relationships,” and did not believe the statements set forth in the agency’s “statement of faith” (which all applicants for employment must sign). A trial court agreed with the agency that it was a religious employer and that it accordingly was permitted to discriminate on the basis of religion in its hiring decisions. The case was appealed, and a state appeals court agreed with the trial court’s decision. In reaching its decision that the agency was a religious organization, the appeals court relied on 8 factors that it derived from several federal court rulings. It emphasized that an organization need not meet all these factors to be considered a religious corporation. The 8 factors are as follows: (1) Whether the organization operates for profit or as a nonprofit organization; (2) whether an administrative agency has determined the organization to be religious; (3) whether the organization’s articles of incorporation or other pertinent documents state a religious purpose; (4) whether the organization represents itself to any affiliated church or denomination, the public, and the government as a secular or religious body; (5) whether an affiliated church or denomination is intimately involved in the management, day-to-day operations, and financial affairs of the organization; (6) whether an affiliated church or denomination supports the organization; (7) whether the organization adheres to or deviates from an original religious purpose; and (8) whether the organization conducts religious activities, services, or instruction. The female applicant appealed again, this time to the state supreme court. However, while this appeal was pending, the agency withdrew from offering adoption services and the senior adoption worker position was abolished. As a result, the supreme court concluded that the issue of discrimination was “moot” and therefore could not be addressed.

A concurring justice wrote a separate opinion and addressed the merits of the case directly, concluding that the appeals court had correctly determined that the agency was a religious organization and accordingly was legally entitled to discriminate in its employment decisions on the basis of religion. The concurring justice labelled as “absurd” and “patently erroneous” the conclusion of the Director of the Texas Human Rights Commission that the agency was not entitled to an exemption as a religious employer since Christianity is not a religion. This justice concluded: “[T]he legislature recognized that an adherent to a particular religion is likely to possess greater familiarity with its traditions and theology and thus exempted religious entities from the Texas Human Rights Act. The … legislature … recognized that `religious employers, to implement their purpose, must be able to select those employees who put into effect their religious tenets.'”

This case is of special significance for the following reasons:

First, it will be a useful precedent to other religious organizations seeking to establish that they in fact are religious. The ruling will be of special relevance to church-affiliated agencies, and parachurch ministries.

Second, the appeals court used an 8 factor test to determine whether or not an organization is religious. This test may be helpful to other organizations attempting to establish their religious orientation. Of course, clergy and theologians rightfully may be skeptical (if not amused) by the efforts of civil judges to define religion. As a result, any such attempt is subject to legitimate criticism. Some will find the appeals court’s 8 factor test far too restrictive. Indeed, it is far more restrictive than the definition of religion announced by the United States Supreme Court in 1970:

Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality—a God—who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual “a place parallel to that filled by … God” in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a “religious” conscientious objector exemption … as is someone who derives his conscientious opposition to war from traditional religious convictions. Welsh v. United States, 398 U.S. 333 (1970).

Third, and perhaps most importantly, this case illustrates the danger of zealous and unrestrained bureaucrats. Incredibly, the Director of the Texas Human Rights Commission vigorously pursued costly and time-consuming litigation against the agency because of his conclusions that (1) the agency was a secular rather than a religious organization, despite overwhelming evidence to the contrary (summarized above), and (2) Christianity is not a religion and therefore the Human Rights Act’s exemption of religious organizations did not apply in this case. Such bureaucratic ineptitude is deeply troubling. While religious organizations can appeal erroneous bureaucratic decisions to the civil courts, this process can be costly and time-consuming. Fortunately, religious organizations have one weapon at their disposal—Title 42, section 1983 of the United States Code. This provision of federal law permits any organization whose constitutional rights are violated by a government official to sue for money damages. It is entirely possible that a civil court would conclude that the actions of the Director of the Texas Human Rights Commission in this case violated the agency’s constitutional right to freely exercise its religion. If so, then it could recover money damages for that violation. This is a very important remedy for church leaders, and their legal advisers, to keep in mind in cases such as this that involve arbitrary and ludicrous decisions of bureaucrats. It is indeed hard to comprehend that a bureaucrat could conclude that Christianity is not a religion. Title 42, section 1983 ensures that bureaucrats who reach such conclusions to the detriment of religious agencies cannot do so with impunity.

Fourth, the concurring opinion emphasized that the Texas Human Rights Act’s exemption of religious organizations was not restricted to employment decisions involving purely “religious” positions. Rather, the exemption extends to any position “connected with the performance of religious activities” by a religious organization. While adoption workers “performed no religious rituals,” they were “the primary link between the agency and prospective adoptive parents.” According to the agency, these workers “must be professed Christians who possess a Christian commitment and concern … in order to adequately fulfill the agency’s purpose and goals.” Clearly, many lay workers employed by religious organizations perform duties “connected with the performance of religious activities.”

Fifth, the concurring justice pointed out that the United States Supreme Court in 1987 upheld a federal civil rights law (Title VII of the Civil Rights Act of 1964) that exempts religious organizations from the ban on religious discrimination in employment decisions. Presiding Bishop of the Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327 (1987). In the Amos case the Court rejected the claim that religious organizations should be allowed to discriminate on the basis of religion only with respect to “religious” positions by observing that “it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious.” In other words, how could a religious organization know in advance whether a court would consider a particular position “religious” or “secular”? Yet, without this knowledge, a religious organization would not know whether it could lawfully discriminate on the basis of religious beliefs in hiring someone for that position. The United States Supreme Court avoided this dilemma by exempting religious organizations from the ban on religious discrimination in all positions (both “secular” and religious). Speer v. Presbyterian Children’s Home and Service Agency, 847 S.W.2d 227 (Tex. 1993).