Religious Organizations Can Use Religious Discrimination in Employment Decisions

But only if discrimination is solely religion-based, court clarifies.

Church Law and Tax 1995-11-01 Recent Developments

Employment Practices

Key point: Under federal law, and the corresponding laws of some states, religious organizations have the right to discriminate in employment decisions on the basis of the religious affiliation of applicants.

A federal court in Tennessee ruled that a church-operated preschool did not violate federal law when it dismissed an unmarried, pregnant preschool teacher. The school, which was affiliated with the Church of Christ, expects that its teachers will adhere to its religious tenets. All teachers are required to be Christians, and preference is given to those who are Church of Christ members. The school uses as its religious tenets the teachings of the New Testament, including the prohibition against sex outside of marriage. The dismissed worker knew that the school was a church-related school and indicated on her employment application that she had a Christian background and believed in God. The worker insisted that she was never told that she would be terminated if she engaged in sex outside of marriage.

However, the school’s faculty handbook (given to worker after she was hired) reads: “Christian character, as well as professional ability, is the basis for hiring teachers at [the school]. Each teacher … is expected in all actions to be a Christian example for the students.” When school administrators learned that the unmarried worker was pregnant, a decision was made to terminate her employment. However, the woman was informed that she would be eligible for re-employment if she married the father of the child. The school’s president claimed that the woman was dismissed not because of pregnancy, but because the facts indicated that she engaged in sex outside of marriage.

The court concluded that the school had not violated federal law by dismissing the pregnant worker. It noted that Title VII of the Civil Rights Act of 1964 prohibits certain employers (those with at least 15 employees that are engaged in interstate commerce) from discriminating against any employee on the basis of race, color, national origin, religion, or sex. While sex discrimination includes discriminating against employees on the basis of pregnancy, Title VII specifically permits religious organizations to discriminate in employment decisions on the basis of religion. The court then observed:

Although … religious organizations [may] discriminate based on religion, religious employers are not immune from liability for discrimination based on race, sex, or national origin. In order for the religious entities exemption in Title VII to apply, a religious employer must make its employment decision upon a religious basis or criteria. In the present case [the church school] asserts that [the woman’s] termination was based on her violation of the religious tenet proscribing sex outside of marriage, which was evidenced by the fact of her out of wedlock pregnancy. [The woman] contends that the religious reason cited by defendant for her termination is simply a pretext for sex discrimination.

The court concluded that the school’s decision to dismiss the pregnant worker was based on religious considerations and accordingly did not constitute unlawful sex discrimination.

There a number of points to note about this decision:

1. Who is covered by Title VII? The court never addressed the question of why the school was subject to Title VII. While it probably had at least 15 employees, was it engaged in interstate commerce? If not, then Title VII would not apply.

2. Religious discrimination is permissible. The case illustrates that religious organizations and schools that are subject to Title VII can discriminate in employment decisions on the basis of religion. However, there are a few very important qualifications here that were mentioned by the court:

(a) The discrimination must in fact be based no religion. Religion cannot be a “pretext” to discriminate on the basis of sex, pregnancy, or some other protected category.

(b) The dismissed worker’s supervisor informed her that the reason she was being terminated was because she was “pregnant and unwed.” While this appeared to make pregnancy the basis for the school’s decision, the court noted that the supervisor used the phrase “pregnant and unwed” to mean that the dismissed worker engaged in sex outside of marriage in violation of the school’s religious principles. Further, the court pointed out that the supervisor lacked the authority to dismiss the worker. Only the school’s president could do so. Accordingly, the supervisor’s statements regarding the basis for termination were not relevant.

(c) While a religious school can discriminate on the basis of religion, it must do so in a way that does not adversely impact a protected group of employees. The dismissed worker insisted that the school dismissed only females who were pregnant and unwed as opposed to persons generally engaging in sex outside of marriage. The court stressed that the evidence in this case demonstrated that the school “has consistently discharged both male and female employees who engaged in sex outside of marriage, whether or not pregnancy resulted from the conduct.” The school’s president testified that during his tenure the school had terminated two males and four females (counting the worker in this case) for engaging in sex outside of marriage, and that “[n]o instance of deviation from this doctrine-based policy was shown … under circumstances where knowledge of an employee’s sexual activity outside of marriage was made known to [the school’s president].”

Key point: This is perhaps the most important aspect of the court’s decision. Churches and religious schools can discriminate against employees on the basis of religion, but they must be able to demonstrate that religion is not a pretext of discriminating against a protected group of workers. If the school only dismissed female workers who engaged in sex outside of marriage, the religious exemption would not apply.

3. Information known to subordinate workers. The dismissed worker claimed that her supervisor was aware that she had suffered a miscarriage in the past. She insisted that this knowledge proved that the school did not uniformly follow its policy of condemning sex outside of marriage, and that “religion” was merely a “pretext” to disguise sex discrimination. The court disagreed. It pointed out that knowledge by the supervisor of the worker’s prior miscarriage was never communicated to the president who alone could make a decision to dismiss an employee.

4. The school’s rehire policy. The court found that the school’s “rehire policy” established that pregnancy alone was not the basis for dismissal. Under this policy an unmarried, pregnant worker could be rehired if she married the father of the child. This fact alone demonstrated that religious belief rather than pregnancy was the basis for dismissal. The court observed: “The fact that [woman’s] marriage to the father of her child would serve as penance for the ‘wrong’ she committed and qualify her for reemployment supports [the school’s] contention that [her] termination was religious based and was not based on [her] gender.”

5. Treatment of married, pregnant employees. The court also noted that the school’s practice of retaining married employees who became pregnant demonstrated that pregnancy alone was not the basis for terminating the unmarried, pregnant employee. Boyd v. Harding Academy of Memphis, Inc., 887 F. Supp. 157 (W.D. Tenn. 1995).

See Also: Employment Decisions of Religious Corporations

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