Employment Practices – Part 2

A New York court ruled that a church could be sued by a former employee for discriminating against him on the basis of his religion and sexual orientation.

Church Law and Tax 2006-11-01

Employment practices – Part 2

Key point 8-12. Many state civil rights laws prohibit employers with a specified number of employees from discriminating in any employment decision on the basis of the sexual orientation of an employee or applicant for employment. Such laws generally exempt religious organizations.

* A New York court ruled that a church could be sued by a former employee for discriminating against him on the basis of his religion and sexual orientation. A homosexual, Jewish man was employed by a church in an administrative capacity. The employee claimed that his supervisor acted in a hostile manner toward him because of his sexual orientation and religious background, and that she undermined him in his job performance and treated him differently than she did heterosexual employees. The employee alleged that on one occasion his supervisor said to him, “I wonder how the officers would feel if they knew they had a Jewish fag working for them.” The employee claimed that he reported the harassing behavior to church officials, but was reprimanded for doing so and within a few weeks was dismissed. The former employee sued the church, claiming that it was responsible for its supervisor’s acts of religious and sexual orientation discrimination. He asked the court to award him back pay, front pay or reinstatement, compensatory and punitive damages, interest, attorney’s fees, and costs.

The church argued that it was exempt from the anti-discrimination provisions of the civil rights laws of the State of New York and New York City. The court conceded that both laws permit religious organizations to limit employment or give preference to persons of the same religion or denomination, or to promote the religious principles of the organization. However, the court noted, ‘those limited exemptions for religious organizations are a far cry from letting them harass their employees and treat the employees in an odiously discriminatory manner during their employment, and to use derogatory expressions toward the employees …. Thus, the claims cannot be dismissed due to defendant’s status as a religious organization.

The court did dismiss the sexual orientation discrimination claim under state law since it was not enacted until after the alleged discrimination. But, the court allowed the former employee to sue the church for sexual orientation discrimination under the city civil rights law, and for religious discrimination under both the state and city laws. It concluded, ‘Invidious discrimination, including by religious institutions, has no place in our society. If the allegations made by plaintiff are true, he should be compensated for defendant’s bad acts.’

Application. This case is important for three reasons. First, it is the first published case to find a church liable for discriminating against an employee on the basis of sexual orientation. The issue of discrimination by churches in employment decisions on the basis of sexual orientation was addressed fully in the July-August 2004 edition of this newsletter. Several states, like New York, have laws prohibiting private employers with a specified number of employees from discriminating in employment decisions on the basis of sexual orientation. Each of these laws has a broad exemption for religious organizations. To illustrate, the New York state law provides: ‘Nothing contained in this section shall be construed to bar any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization, from limiting employment … or giving preference to persons of the same religion or denomination or from taking such action as is calculated by such organization to promote the religious principles for which it is established or maintained.’ The City of New York municipal code contains an almost identical provision. Such language clearly is broad enough to apply to the church in this case, and the court’s ruling to the contrary represents a very narrow interpretation of the law that may well be reversed on appeal.

Second, this case illustrates that some cities have enacted ordinances banning discrimination by employers on the basis of sexual orientation. It is imperative for church leaders to be familiar with their own municipal ordinances as well as federal and state employment laws. The court conceded that the state law banning sexual orientation discrimination in employment did not apply to the church since it was not enacted until after the alleged discrimination occurred. However, it ruled that the church could be sued for violating a similar ban contained under the municipal code.

Third, the court ruled that the church could be sued for religious discrimination. Once again, state and city laws contain a broad exemption from the ban on religious discrimination, and the court’s narrow interpretation of these exemptions is vulnerable to reversal on appeal. Logan v. Salvation Army, 809 N.Y.S.2d 846 (Sup. Ct. 2005).

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