Age Discrimination and Religious Schools

Court rules that federal age discrimination law applies to church-run school.

Church Law and Tax 1994-07-01 Recent Developments

Employment Practices

Key point: Federal age discrimination law prohibits discrimination in employment decisions on the basis of the age of an applicant or employee who is 40 years of age or older. This law applies to some religious organizations.

A federal appeals court ruled that federal age discrimination law applied to a church school. A Catholic parochial school did not offer a teaching contract to a math teacher who had taught at the school for 5 years. The school noted that the teacher did not open classes with prayer and did not attend Mass with students. The former teacher sued the school for age discrimination. A federal district court dismissed the lawsuit, concluding that a religious school is exempt from federal age discrimination law. The teacher appealed, and a federal appeals court reversed the district court and ruled that the school was subject to the age discrimination law. The court began its opinion by noting that the federal Age Discrimination in Employment Act makes it unlawful for an employer to discriminate on the basis of age against any applicant or employee who is at least 40 years of age. The Act applies to any employer that is “engaged in an industry affecting commerce who has twenty or more employees.” The Act does not specifically say whether religious employers are subject to or exempt from its provisions. The school argued that subjecting it to the provisions of the Act would create an “excessive entanglement” between church and state in violation of the first amendment. The court disagreed on the basis of the Supreme Court’s 1979 decision in N.L.R.B. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In the Catholic Bishop decision, the Supreme Court ruled that in deciding whether of not a federal law applies to religious organizations, a civil court first must ask if applying the law “would give rise to serious constitutional questions.” If it would, then the law cannot be applied to religious organizations without an “affirmative expression of congressional intent” to apply the law to such organizations. The federal appeals court noted that

[t]he majority of courts considering the issue have determined that application of the [Age Discrimination in Employment Act] to religious institutions generally, and to lay teachers specifically, does not pose a serious risk of excessive entanglement. These courts have recognized … the limited inquiry required in anti-discrimination disputes …. [Age discrimination] actions do not require extensive or continuous administrative or judicial intrusion into the functions of religious institutions. The sole question at issue … is whether the plaintiff was unjustifiably treated differently because of his age …. The Supreme Court has stated that “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, does not of itself violate the [Establishment Clause’s] nonentanglement command.” Hernandez v. Commissioner, 490 U.S. 680 (1989). Application of the [Act] to the case at bar requires just such routine regulatory interaction between government and a religious institution.

The court acknowledged that the Act is not applicable to claims brought by members of the clergy against their religious employers, since these cases involve “the pervasively religious relationship between a member of the clergy and his religious employer.” The court conceded that “[t]here may be cases involving lay employees in which the relationship between employee and employer is so pervasively religious that it is impossible to engage in an age-discrimination inquiry without serious risk of offending the [first amendment]. This is not such a case.”

The court noted that even if this case did present serious entanglement concerns, “we would still find the [Act] applicable under the reasoning of Catholic Bishop because … we are convinced that Congress implicitly expressed an intention to apply the [the Act] to religious institutions.” It based this conclusion on the fact that Congress modelled the Act after Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment decisions on the basis of race, color, national origin, gender, or religion. While Title VII specifically exempts religious organizations from the ban on employment discrimination based on religion, it does not exempt them from the other forms of discrimination (based on race, color, national origin, or gender). The court continued:

As several courts have noted, the legislative history of Title VII makes clear that Congress formulated the limited exemptions for religious institutions to discrimination based on religion with the understanding that provisions relating to non-religious discrimination would apply to such institutions. Given that Congress intended to apply Title VII to religious institutions, and that Congress modelled the [Age Discrimination in Employment Act’s] coverage upon that of Title VII, we are convinced that they also intended to apply the [Act] to such institutions.

The court sent the case back to the trial court for a trial on the issue of whether the school did not renew the teacher’s contract as a result of age, or religion. The court expressed confidence that “the able district judge will be able to focus the trial upon whether [the teacher] was fired because of his age or because of failure to perform religious duties, and that this can be done without putting into issue the validity or truthfulness of Catholic religious teaching.” DeMarco v. Holy Cross High School, 4 F.3d 166 (2nd Cir. 1993). [PCL10E1]

See Also: Age Discrimination in Employment Act

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