Employment Practices – Part 3

A federal court in Delaware ruled that a church-operated school that fired a teacher for publicly advocating abortion rights could not be sued for violating a federal nondiscrimination law.

Church Law and Tax2005-07-01

Employment practices – Part 3

Key point 8-06. The civil courts have consistently ruled that the first amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.

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

* A federal court in Delaware ruled that a church-operated school that fired a teacher for publicly advocating abortion rights could not be sued for violating a federal nondiscrimination law. A woman (Amy) accepted a position teaching English and religion classes at a private high school affiliated with the Catholic church. On the thirtieth anniversary of the Supreme Court’s decision (Roe v. Wade) legalizing abortion, she joined with several others in publishing an advertisement in a local newspaper in support of abortion rights. The advertisement stated: “Thirty years ago today, the U.S. Supreme Court guaranteed a woman’s right to make her own reproductive choices. That right is under attack. We, the undersigned individuals and organizations, reaffirm our commitment to protecting that right. We believe that each woman should be able to continue to make her own reproductive choices, guided by her conscience, ethical beliefs, medical advice and personal circumstances. We urge all citizens and elected officials at every level to be vigilant in the fight to ensure that women now and in the future have the right to choose.” The advertisement listed the people, including Amy, who were lending their support to the sentiments expressed.

In Amy’s view, her school and the Catholic Church was among those responsible for attacking abortion rights. By her own admission, she lent her name to the advertisement because she wanted to persuade her school “to end its policies interfering with its female employees’ right to have an abortion or to advocate the right of other employees to use that procedure.” In short, she wanted to refute the Catholic Church’s categorical opposition to abortion and she wanted to do so in a public way.

Amy was fired a few days later, despite her claim that it was illegal to fire her “for opposing practices which interfered with the legal right to an abortion.” She was told that she could keep her job if she immediately and publicly recanted her position in favor of abortion rights and if she would “say in the newspaper that she is pro-life.” She refused, saying that it would violate her conscience and be a lie to recant her beliefs.

Amy later sued the school and diocese, claiming that it is unlawful under Title VII of the Civil Rights Act of 1964 (which bans sex discrimination in employment) for the school to terminate an employee who has an abortion or who advocates abortion rights. The court applied a 1979 Supreme Court decision in evaluating Amy’s Title VII claim. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979). In the Catholic Bishop case, the Court applied a two-pronged analysis in determining whether a statute can be applied to a religious organization without offending the first amendment. First, a court must consider whether applying the statute to the religious organization “would raise substantial constitutional questions.” If it would, the court is then required to determine whether Congress “clearly expressed an intent” that the statute be applied to religious organizations. The court observed, “With respect to the first prong, whether application of Title VII would raise constitutional questions, the answer is an emphatic ‘yes.'” Amy’s interpretation of Title VII (preventing a Catholic school from disciplining a religion teacher who publicly repudiates a central tenet of the Catholic faith)

raises constitutional concerns in the starkest terms. With only slight disguise, it calls for court-imposed value judgments about religious doctrine and court supervision of church discipline. Short of a declaration that the Pope should pass draft encyclicals through the courts for approval, it is hard to conceive of a more obvious violation of the free exercise rights of the Catholic Church or a clearer case of inappropriate entanglement of church and state.

The court, in commenting on the so-called “ministerial exception” to employment laws, further observed that “Title VII’s inapplicability is particularly obvious when the alleged victim of discrimination by a religious institution is a minister of the faith,” and that the courts “have consistently found that Title VII does not apply to the relationship between ministers and the religious organizations that employ them, even where discrimination is alleged on the basis of race or sex.” The court concluded that Amy was a “minister” for purposes of the ministerial exception. While not a member of the ordained clergy, “she was nevertheless a teacher of religion at the school and therefore arguably subject to this blanket ministerial exception.”

The court also concluded that substantial constitutional questions were implicated by the first amendment’s nonestablishment of religion clause, which forbids excessive government entanglement with religion, since “it is evident that judicial review of the school’s decision here risks exactly that …. Such a judicial analysis is in itself forbidden by the constitution.”

Having determined that Amy’s Title VII claim raised “substantial constitutional questions,” the next prong in the Catholic Bishop analysis asks “whether Congress clearly expressed an intent that Title VII be applied” in a case like this. The court concluded that there was no such congressional intent, and referred to the following language in Title VII: “It shall not be an unlawful employment practice for a school … to hire and employ employees of a particular religion if such school … is, in whole or in substantial part … directed toward the propagation of a particular religion.”

Application. This case illustrates the important principle that churches and religious schools can discipline or dismiss employees who publicly criticize or dispute the religious tenets and practices of their employer. In reaching this conclusion the court applied the two-pronged analysis outlined by the Supreme Court in the Catholic Bishop case (1979). According to this case, an employment or discrimination law cannot be applied to a religious organization if (1) doing so would raise “substantial constitutional questions,” and (2) there is no “clear expression” of legislative intent to apply the law to religious organizations. This analysis should be used whenever a local, state, or federal employment or discrimination law is applied to a religious organization.

This case also demonstrates that the ministerial exception (which bars the courts from meddling with the employment relationship between a church and its ministers) applies to Amy, a non-ordained teacher of English and religion at a church-affiliated private secondary school. Curay-Cramer v. Ursuline Academy, 344 F.Supp.2d 923 (D. Dela. 2004).

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