Employment Practices

Church Law and Tax 1989-09-01 Recent Developments Employment Practices Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1989-09-01 Recent Developments

Employment Practices

A bill pending in Congress could have a significant impact on church practices and facilities. The “Americans with Disabilities Act of 1989” (Senate Bill 933) is a comprehensive attempt to eliminate most forms of discrimination against disabled persons. The bill notes that 43 million Americans have one or more disabilities, and that this number is increasing as the population as a whole grows older; that disabled persons continually experience various forms of discrimination and often have little if any legal recourse to redress such discrimination; and that disabled persons “occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally.” The purpose of the bill is to eliminate discrimination against individuals with disabilities, to “provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities,” and “to ensure that the federal government plays a central role in enforcing the standards established in [the bill] on behalf of individuals with disabilities.” The bill has a number of significant provisions, including the following. 1. Employment. No employer (generally any organization engaged in interstate commerce that has 15 or more employees) may discriminate against any “qualified individual with a disability” on the basis of the disabled person’s disability “in regard to job application procedures, the hiring or discharge of employees, employee compensation, advancement, job training, and other terms, conditions, and privileges of employment.” A qualified individual with a disability is defined as a disabled person who, “with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The bill includes within the definition of prohibited discrimination “the failure of an employer … to make reasonable accommodations to the known physical or mental limitations of a qualified individual with a disability who is an applicant or employee unless such [employer] can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” The term “disability” is defined in the bill as “a physical or mental impairment that substantially limits one or more of the major activities of such individual.” Would these prohibitions apply to churches (if the bill becomes law)? Churches are not specifically exempted from these provisions. Therefore, they presumably would be covered if they met the definition of an employer (i.e., at least 15 employees, and involvement in interstate commerce). Obviously, most churches will be exempt as a result of having fewer than 15 employees. Those with 15 or more employees will only be subject to the law (if enacted) if they are engaged in “an industry affecting commerce.” Whether a church with 15 or more employees will satisfy this test will depend on several of factors, including the number of interstate commercial transactions (buying and selling of services or merchandise) in which the church is involved, and how narrowly or expansively the courts will define the term “affecting commerce.” 2. Public accommodations. The bill specifies that “no individual shall be discriminated against in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation on the basis of disability.” Places of public accommodation are defined as establishments “whose operations affect commerce” and “that are used by the general public as customers, clients, or visitors, or that are potential places of employment.” They are specifically defined to include auditoriums and “private schools.” Prohibited discrimination includes “a failure to remove architectural and communication barriers that are structural in nature in existing facilities … where such removal is readily achievable.” If removal of a barrier is not readily achievable, then prohibited discrimination includes a failure to make the accommodations available “through alternative methods if such methods are readily achievable.” Would the bill, if enacted into law, apply to churches? Again, the bill does not specifically exempt churches, though it does mention “private schools” among the facilities that are public accommodations. Whether churches would be covered would depend upon the interpretation of the term “commerce.” For purposes of the public accommodation rules, there is no requirement that a facility have 15 or more employees. 3. Conclusions. If the bill becomes law, there are a number of significant issues that will be raised that unfortunately are not addressed specifically in the bill. First, is the typical church having few if any interstate transactions covered by the employment and public accommodation provisions? What activities will involve a church in interstate commerce? Second, how broadly will the term “disability” be defined? Will it include alcoholics, drug users, and AIDS victims? If a church is covered under the law, could it be sued for refusing to hire an AIDS victim or an alcoholic who is disabled but capable of working (with or without reasonable accommodation)? Finally, under what circumstances would churches covered under the public accommodation provisions be required to make structural modifications in order to accommodate disabled persons? When would such structural modifications not be “readily achievable”? Should cost be considered? Church leaders need to be informed about this bill and its possible application to churches and church-operated facilities. Those who would like to see the issues of church coverage clarified should discuss your concerns immediately with your United States Senators.

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