A federal appeals court issues an important ruling- Kathy v. Catholic Diocese, 206 F.3d 651 (6th Cir. 2000)
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 8-07. 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. The Civil Rights Act of 1964
• Key point 8-08.1. 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. The Civil Rights Act of 1964
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 federal appeals court case. The 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 female teacher (“Kathy”) was hired to teach at a church-operated parochial school in 1994. During her first year she taught eighth grade math and religion, high school math, and she coached a girls’ basketball team. After her first year, the school renewed Kathy’s teaching contract for the next school term and granted her request to teach the second grade. Kathy’s position as a second-grade teacher involved significant training and ministry in the Catholic faith. She provided daily religious instruction to students, took students to religious services on a regular basis, and prepared her second-grade students for the sacraments. Kathy acknowledged that her position required her to “build a Christian community,” “integrate learning and faith,” and “instill a sense of mission” in her students.
For each of her two years at the school, Kathy’s employment was governed by a one-year employment contract (the “Contract”) as well as the “Affirmations for Employment” (“the Affirmation”), both of which she signed for each year. In addition to laying out basic terms of salary, duration and other routine aspects of the position, the Contract incorporates the provisions of the Affirmation document as part of its terms and conditions.
The Affirmation outlines the ministerial responsibilities of the “teacher/minister,” including the following provisions:
(1) A statement that the signer “believes that the work of the Catholic Church, [its agencies] and institutions has characteristics that make it different from the work of other agencies and institutions”
(2) A statement that the signer will “work diligently to maintain and strengthen the Catholic Church and its members,” and that “by word and example, the [employee] will reflect the values of the Catholic Church”
(3) Statements that the signer believes in “mutual trust” and “open communication,” and
(4) A statement by the signer that she “is more than a professional”
The Contract also incorporates the Teacher Handbook, which states that the mission of the school is to “instill in our children the Gospel message of Jesus Christ.” The Handbook describes the mission statement and broad philosophy of the school, and lays out more specific matters of school policy and administration, including describing teachers’ “religious responsibilities” (e.g., teachers are “expected to uphold, by word and example, all truths, values, and teachings of the Roman Catholic church”).
Neither the Teacher’s Handbook nor the Affirmation explicitly states, nor was Kathy ever expressly informed (in writing, orally or otherwise), that premarital sex comprised a violation of the terms of either the Contract or the Affirmation.
In the fall of 1995, Kathy and her boyfriend met with the associate pastor of the church that operated the school to discuss their intention to marry. Kathy and her husband were married in the church in February 1996. In early March, Kathy informed the assistant principal and other teachers that she was pregnant. Around late March or early April, Kathy became visibly pregnant and began to wear maternity clothing to school. Based on his observation of Kathy’s pregnancy, the associate pastor correctly concluded that she had engaged in premarital sex. Kathy later admitted that her pregnancy resulted from sex before her marriage.
On learning that Kathy had engaged in premarital sex, school officials did not immediately terminate Kathy. Instead, they considered “all options,” including immediate termination. Ultimately, school officials decided that the most appropriate course of action was to permit Kathy to continue teaching for the remainder of the school year, without renewing her contract after the year had finished. On May 3, 1996, the associate pastor advised Kathy in a conference that “under the circumstances,” the school “would not renew her contract or hire her for the next school year.” In a formal letter explaining the decision not to renew her contract, sent on May 4, the associate pastor wrote:
We expect our teachers to be good, strong role models for our children …. It is stated in your contract, working agreement that “by word and example you will reflect the values of the Catholic Church.” Parents in the community have serious concerns about a teacher who marries and is expecting a child 5 months after the wedding date. We expect teachers and staff members to observe the 6 month preparation time for marriage. The church does not uphold sexual intercourse outside of marriage. We consider this a breach of contract/working agreement.
Kathy continued teaching through the end of the school year. Her child was born on July 10, 1996.
Kathy claimed that when the associate pastor informed her of the decision not to renew her teaching contract, he only stated that it was due to her pregnancy so soon after marriage and did not mention premarital sex. She also questioned the associate pastor’s assertion that, after discovering her pregnancy, the school decided to retain her only through the remainder of the 1995-1996 school year. In particular, Kathy received a glowing Teacher Performance Evaluation on April 19, 1996, nearly two months after the school concluded that she had premarital sex. In addition to noting her “successful” performance in almost all of fifteen objective criteria, the school’s principal praised her for “adjusting very well” to the “busy and changing year in regard to her classroom reassignment and personal life.” Finally, the evaluation implied that a contract renewal would be forthcoming for the following year, concluding, “Your class of 2nd grade students is well managed and respectful. I would expect continued growth for the 1996-97 school year.”
On October 11, 1996, Kathy filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), a federal agency that enforces several federal civil rights laws. The EEOC investigated Kathy’s claim, and issued her a “notice of right to sue” letter. Such a letter indicates that the EEOC believes there is a reasonable basis for the discrimination claim, and it gives the employee the option of suing in federal court. Kathy later sued the school and church officials in federal court claiming illegal sex and pregnancy discrimination under Title VII of the federal Civil Rights Act of 1964, and an Ohio civil rights law. Title VII prohibits discrimination in employment on the basis of several factors, including gender and pregnancy.
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
(1) She was pregnant
(2) She was qualified for her job
(3) She was subjected to an adverse employment decision, and
(4) There was a connection between her pregnancy and the adverse employment decision
The school and church officials conceded that the first, third, and fourth requirements of a prima facie were met, but they insisted that Kathy failed to prove the second requirement and therefore her case had to be dismissed because she failed to prove all four elements of a prima facie case. The school and church officials claimed that by engaging in premarital sex, Kathy had violated both the Contract and Affirmation, and her promise “to live according to the principles of the Catholic Church.” Her own actions therefore rendered her unqualified for the teaching position. The trial court agreed, and dismissed the case on the ground that Kathy failed to prove her prima facie case.
The trial court noted that even if Kathy had made out a prima facie case, she had still failed to show that the school’s “nondiscriminatory” reason for the non-renewal was a mere pretext for pregnancy discrimination. In reaching this conclusion, the court pointed to the statement of the associate pastor that “it was not pregnancy that motivated the termination,” but the fact of premarital sex.
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.
The appeals court’s ruling
Kathy appealed the case to a federal appeals court. The court’s decision is summarized in the following sections.
The religious employer exception
Title VII, Section 703(e)(2) of the Civil Rights Act of 1964 specifies:
[I]t shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.
This provision exempts religious educational institutions, whether at the primary, secondary, or college level, from the prohibition of religious discrimination contained in Title VII. However, religious educational institutions remain subject to Title VII’s ban on pregnancy discrimination.
It is not always easy to determine whether a decision by a church or religious school to terminate a pregnant employee is permitted “religious” discrimination or prohibited “pregnancy” discrimination. The court observed:
In suits like Kathy’s, courts have made clear that if the school’s purported discrimination is based on a policy of preventing nonmarital sexual activity which emanates from the religious and moral precepts of the school, and if that policy is applied equally to its male and female employees, then the school has not discriminated based on pregnancy in violation of Title VII. The central question in this case, therefore, is whether [the school’s] nonrenewal of Kathy’s contract constituted discrimination based on her pregnancy as opposed to a gender-neutral enforcement of the school’s premarital sex policy. While the former violates Title VII, the latter does not.
The court concluded that it was inappropriate for the trial court to dismiss the case since Kathy had presented sufficient evidence to create a genuine dispute as to the school’s motivation in dismissing her.
The prima facie case
The appeals court disagreed with the trial court’s decision that Kathy had failed to prove a “prima facie case.” It noted that the prima facie requirement for proving a Title VII claim is “a burden easily met,” and that it is “only the first stage of proof in a Title VII case, and its purpose is simply to force an employer to proceed with its case.” The appeals court concluded that the trial court had confused the three stages involved in proving a discrimination claim (summarized above):
The court found Kathy “unqualified” under prong two of the prima facie case because she had not lived up to the promises she made to “exemplify the moral values taught by the church.” Because her pregnancy due to premarital sex meant that “she no longer met all the qualifications of her position,” even strong evidence as to her satisfactory performance (i.e., her evaluations and teaching record) could not overcome these moral failings. This analysis improperly imported the later stages of the inquiry into the initial prima facie stage. [The school] alleges that it did not renew Kathy’s contract because she violated its premarital sex policy, which constituted part of the broader ministerial requirements of being a teacher; conversely, Kathy argues that this rebuttal is a pretext for discrimination. Rather than resolve this debate at the prima facie stage [the trial court should have addressed this dispute] at the inquiry’s third stage, when its role is to decide the “ultimate question” of discrimination. In other words, when assessing whether a plaintiff has met her employer’s legitimate expectations at the prima facie stage of a termination case, a court must examine plaintiff’s evidence independent of the nondiscriminatory reason “produced” by the defense as its reason for terminating plaintiff. The district court clearly failed to do this ….
Without considering the “ultimate question” of whether the school’s premarital sex policy was applied in a discriminatory way, or whether it was the true reason the school terminated Kathy, there is little doubt that Kathy made a prima facie case showing that she was meeting the school’s legitimate expectations. In order to show that she was qualified, the plaintiff must prove that she was performing at a level which met her employer’s legitimate expectations. The evidence Kathy presented of her two-year record of success, and in particular her positive April 1996 evaluation, is more than enough to meet this standard. The fact that the school allowed her to keep teaching for the remainder of the year further bolsters this showing. She thus successfully made out a prima facie case.
The employer’s proof of a nondiscriminatory basis for its actions
Since the court concluded that Kathy met the prima facie case requirement, the burden then shifted to the employer to demonstrate a nondiscriminatory basis for its decision to terminate Kathy. This is “stage 2” in the three-stage discrimination analysis summarized above.
The court concluded that the school “successfully articulated a nondiscriminatory reason for its actions.” It noted that stage 2 of the discrimination analysis required the school to rebut the presumption of discrimination (that arose when Kathy proved her prima facie case) by producing evidence that Kathy was dismissed for a legitimate, nondiscriminatory reason. The court concluded that the school satisfied this burden “by asserting that it did not renew Kathy’s contract because she violated her clear duties as a teacher by engaging in premarital sex.”
Kathy’s proof of discrimination
Since the school rebutted the prima facie case of discrimination by providing evidence of a legitimate, nondiscriminatory basis for its decision to terminate Kathy, “stage 3” of the discrimination analysis shifted the burden of proof back to Kathy to demonstrate that the alleged nondiscriminatory basis for the school’s decision “was not the true reason for the employment decision.” In other words, Kathy had to “answer the ultimate question: did [the school] discriminate against her becauseshe was pregnant, or for engaging in sex outside of marriage in violation of the school’s moral code?”
The court noted that there were a number of ways for Kathy to prove that the school discriminated against her on the basis of pregnancy rather than on the basis of its moral and religious tenets:
(1) First, she can show intentional discrimination directly by showing that a discriminatory reason more likely motivated the employer than the reason the employer offered.
(2) Second, she can indirectly show pretext by showing that the employer’s explanation is “unworthy of credence.” The court noted Kathy had made a persuasive case that the school’s “religious” reason for terminating her was a mere “pretext.” This is important, because if Kathy could prove that the school’s alleged “religious” basis for terminating her was a mere pretext (i.e., a false basis), then this exposed the school to a pregnancy discrimination claim. With regard to pretext, the court observed,
Kathy presented a variety of concrete evidence casting into doubt the “reason” [the school] proffered-that it decided not to renew her contract because she had violated its blanket policy against premarital sex-and raising an issue of fact as to whether the treatment was due to her pregnancy. Most importantly, she presented evidence that the school continued to view her as sufficiently qualified to teach: the complimentary evaluation (mentioning both her “personal” and “professional” life), its consideration of other “options” for some time before opting to terminate her, and [the associate pastor’s] suggestion that “things might have worked out differently” had Kathy notified him of her pregnancy sooner. She also produced some evidence showing that the school may have focused more on the fact of her pregnancy than her sexual activity. For instance, she testified to conversations and produced statements in which school officials explicitly discussed her “pregnancy” rather than her sexual actions.
(3) “In the pregnancy discrimination context in particular, Kathy also may show that [the school] enforced its premarital sex policy in a discriminatory manner-against only pregnant women, or against only women. This is because a school violates Title VII if, due purely to the fact that women can become pregnant and men cannot, it punishes only women for sexual relations because those relations are revealed through pregnancy. In other words, a school cannot use the mere observation or knowledge of pregnancy as its sole method of detecting violations of its premarital sex policy.” The court concluded that Kathy might be able to prove discrimination on this basis as well:
Finally, Kathy adduced evidence that the policy was not applied equally among men and women. School officials acknowledged in their depositions that Kathy’s pregnancy alone had signaled them that she engaged in premarital sex, and that the school does not otherwise inquire as to whether male teachers engage in premarital sex. At oral argument, counsel for [the school] conceded that it was only Kathy’s pregnancy that made it evident that she had engaged in premarital sex. These admissions raise an issue of material fact as to whether [the school] enforces its policy solely by observing the pregnancy of its female teachers, which would constitute a form of pregnancy discrimination.
The court cautioned that the school may have “sharp retorts to many of Kathy’s factual claims. Indeed, many of its responses could well convince a jury of its case.” But it was inappropriate for the trial court to have dismissed the case. The court remanded the case back to the trial court for further proceedings, noting that “Kathy has introduced sufficient evidence to make out a prima facie case, and sufficient evidence to call into question the school’s proffered reason for her non-renewal. The law entitles her to make her case before a [jury].”
Breach of contract claim
The appeals court dismissed Kathy’s breach of contract claim. It noted that “the contract itself was for a one-year term, to end on June 30, 1996, with no express or implied right to renewal. Its terms were fulfilled.”
Relevance of the case to church leaders
A decision by the federal appeals court for the sixth circuit has limited effect. It is binding only on federal courts in the states of Kentucky, Michigan, Ohio, and Tennessee. Nevertheless, opinions by federal appeals courts often are given considerable weight by state and federal courts in other circuits, 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 the table on the next page. 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 section 8-05 of the third edition of Richard Hammar’s book, Pastor, Church & Law.
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 much 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 third edition of Richard Hammar’s book, Pastor, Church & Law (3rd ed. 2000), available from 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 Kathy 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 Kathy solely on account of her violation of the church’s moral teachings regarding premarital sex, the court concluded that Kathy 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 Kathy had undermined the school’s claim that “religious standards” were the sole basis for its decision to terminate Kathy:
(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 Kathy could prove that the school’s alleged “religious” basis for terminating her was a mere pretext, then this exposed the school to a pregnancy discrimination claim. As evidence that the school’s “religious” basis for terminating Kathy was pretextual, the court pointed to evidence that the school
continued to view her as sufficiently qualified to teach: the complimentary evaluation (mentioning both her “personal” and “professional” life), its consideration of other “options” for some time before opting to terminate her, and [the associate pastor’s] suggestion that “things might have worked out differently” had Kathy notified him of her pregnancy sooner. She also produced some evidence showing that the school may have focused more on the fact of her pregnancy than her sexual activity. For instance, she testified to conversations and produced statements in which school officials explicitly discussed her “pregnancy” rather than her sexual actions.
(2) Inconsistent application of moral standards. Another way in which Kathy undermined the school’s “religious” basis for its decision to terminate her was 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. Kathy insisted that the school’s policy only identified pregnancy as proof of premarital sex. If this were true, then the policy would discriminate against employees on the basis of pregnancy, and would be unlawful under Title VII. The court observed,
Kathy adduced evidence that the policy was not applied equally among men and women. School officials acknowledged in their depositions that Kathy’s pregnancy alone had signaled them that she engaged in premarital sex, and that the school does not otherwise inquire as to whether male teachers engage in premarital sex. At oral argument, counsel for [the school] conceded that it was only Kathy’s pregnancy that made it evident that she had engaged in premarital sex. These admissions raise an issue of material fact as to whether [the school] enforces its policy solely by observing the pregnancy of its female teachers, which would constitute a form of pregnancy discrimination.
• 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.
4. 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.
5. The relevance of performance evaluations. The court concluded that the very positive employee evaluation Kathy had received prior to her termination was evidence that the school in fact had not terminated her on the basis of her violation of its moral teachings. After all, if the school had such standards, and they were as important as church officials insisted, then how could someone who so blatantly 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.
6. Communicating employment standards to employees. The school communicated to Kathy in her contract of employment, as well as her “Affirmations of Employment,” that she was expected to conform to the church’s moral standards. Kathy signed both documents. This is an excellent practice to follow by any church that seeks to impose its moral standards on its employees. This eliminates any claim by employees that they “didn’t know” they were expected to abide by such standards.
7. 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.
8. Breach of contract. The court rejected Kathy’s claim that the school was guilty of breach of contract when it failed to renew her contract for another school term. The court drew a distinction between breach of contract and a refusal to renew a one-year contract: “[T]he contract itself was for a one-year term, to end on June 30, 1996, with no express or implied right to renewal. Its terms were fulfilled.”
Dismissing an Employee for Violation of a Church’s Moral Teachings
Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:
(1) Is there sufficient evidence to support our decision?
(2) 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?
(3) 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.
(4) 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 guilt 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.
(5) Have we contacted an attorney before taking final action?
Application of Selected Federal Employment and Civil Rights Laws to Religious Organizations
| Statute | Main Provisions | Covered Employers |
| Title VII of 1964 Civil Rights Act | bars discrimination in employment decisions on the basis of race, color, national origin, sex, or religion | 15 or more employees + interstate commerce
religious employers can discriminate on the basis of religion |
| Age Discrimination in Employment Act | bars discrimination in employment decisions on the basis of age (if 40 or over) | 20 or more employees + interstate commerce |
| Americans with Disabilities Act | bars discrimination against a qualified individual with a disability who can perform essential job functions with or without reasonable employer accommodation (that does not impose undue hardship) | 15 or more employees + interstate commerce religious employers can discriminate on the basis of religion |
| Employee Polygraph Protection Act | employers cannot require, request, suggest, or cause any employee or applicant to take a polygraph exam | interstate commerce (no minimum number of employees) |
| Immigration Reform and Control Act | I-9 form must be completed by all new employees demonstrating identity and eligibility to work | all employers |
| Fair Labor Standards Act | requires minimum wage and overtime pay to be paid to employees | employers who employ employees who are engaged in commerce or in the production of goods for commerce, as well as any employee “employed in an enterprise engaged in commerce or in the production of goods for commerce” |
| Family and Medical Leave Act of 1993 | eligible employees qualify for up to 12 weeks unpaid leave per year because of (1) birth or adoption of child, including care for such child, or (2) caring for spouse, child, or parent with a serious health condition, or (3) the employee’s serious health condition | 50 or more employees + interstate commerce |
| Occupational Safety and Health Act | mandates a safe and healthy workplace for covered employees | an organization “engaged in a business affecting commerce who has employees” |
| Older Workers Benefit Protection Act of 1991 | bars employees at least 40 years old from “waiving” their rights under age discrimination law unless the waiver meets strict legal standards | 20 or more employees + interstate commerce |
Copyright 2000 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m86 m43 m65 c0600
