Recent Developments in Federal Court Regarding Employment Practices

A federal court ruled that a church-affiliated private school could be sued by a former employee who had been dismissed for extramarital sexual relations.

Church Law and Tax1998-11-01

Employment practices

Key point. Federal law exempts churches from the ban on “religious discrimination” in employment. However, church leaders must articulate clearly the religious basis for adverse employment decisions in order to qualify for the exemption.

A federal court ruled that a church—affiliated private school could be sued by a former employee who had been dismissed for extramarital sexual relations. In 1995, the school hired an unmarried woman as a math teacher. When she was hired, the woman signed a statement expressing her agreement with the school’s “statement of belief” and agreed that her “lifestyle” would be “in accordance with the will of God and the Holy Scripture.” A year later the school learned that the teacher (who was still unmarried) was pregnant. Because sexual activity outside of marriage violated the religious beliefs of the school, the teacher was dismissed. She rejected the school’s offer to rehire her after giving birth. Shortly after being dismissed, the woman sued the school, claiming that the school had discriminated against her on the basis of pregnancy in violation of Title VII of the Civil Rights Act of 1964. She insisted that she was never informed, before her pregnancy, of any school policy against extramarital sexual relations, and she further claimed that she was told “I was terminated due to the fact that I was pregnant and unmarried and therefore a bad role model.” The school denied that pregnancy rather than sexual activity was the basis for the teacher’s dismissal. It conceded that this was the first case in which it had dismissed an employee for extramarital sex, but it insisted that it would treat male employees no differently if a case arose. The school asked the court to dismiss the lawsuit on the ground that Title VII permits religious employers to discriminate against employees on the basis of religion. The court declined to do so.

The court acknowledged that “Title VII explicitly provides exceptions for religious entities by allowing them to hire only employees of a given religion” and “permits employment of teachers based on religion if a school is controlled by a particular religion and qualification for employment is a religious requirement.” This includes the right to “employ only teachers who adhere to the school’s moral code”. However, the court cautioned that “these exceptions to Title VII do not sanction gender discrimination” and that “religious codes of morality must be applied equally to male and female teachers.” But if religious requirements “are applied equally to both males and females, the court will not evaluate the underlying dogma.” The court then drew an important distinction between employment decisions based no pregnancy and those based on sexual activity. A rule that singles out pregnant employees for adverse treatment is not permitted because it is limited to females and therefore is discriminatory by definition. On the other hand, “restrictions on sexual activity, applied equally to males and females, are not discriminatory.”

The court was unwilling to dismiss the lawsuit because the evidence submitted by the school “does not indicate whether anyone else – male or female – has ever been fired as a teacher by the [school] for sexual intercourse outside of marriage.”

Application. This case is important for three reasons:

Religious discrimination permitted. The court strongly affirmed the right of religious schools to discriminate on the basis of religion in their employment decisions. And, this right not only includes the right to employ only persons of the school’s religious faith, but also to require employees to comply with its “moral code” and religious tenets.

Sex or pregnancy discrimination not allowed. The court cautioned that religious schools cannot discriminate on the basis of sex or pregnancy. To illustrate, a religious school that adopts a rule requiring the dismissal of “any unmarried employee who is pregnant” would violate Title VII because it can only apply to women. The fact that the school is attempting to enforce its religious beliefs is not a defense. On the other hand, a rule requiring the dismissal of any school employee who engages in extramarital sex would be valid since it does not discriminate against employees on the basis of their gender.

Consistency. A policy that requires the dismissal of any employee, regardless of gender, on account of extramarital sex may still be discriminatory if it is not applied equally to both men and women. The school in this case failed to provide the court with enough evidence to demonstrate that it applied its policy equally to men and women, and so the court refused to dismiss the lawsuit. This is a very important observation. Before dismissing an employee on account of extramarital sex, a church or religious school should review all other known cases of extramarital sex involving employees in the past. Did the church or school apply its policy equally to men and women? That is, was every employee guilty of such behavior treated in the same way? Or, were only women disciplined or dismissed, while men were only reprimanded? If a female employee is dismissed for extramarital sex, and the church or school has treated male employees less severely who were guilty of the same conduct, the woman may have a viable discrimination claim. Or course, the opposite is also true. Male employees who are dismissed on account of extramarital sex may be able to sue a church or school if female employees are treated more favorably. Ganzy v. Allen Christian School, 995 F. Supp. 340 (E.D.N.Y. 1998). Termination of Employees, The Civil Rights Act of 1964, The Free Exercise Clause

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