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Discrimination Based on Religion or Morals

§ 8.12.04
Key Point 8-12.04. 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. The Act permits religions organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

Can a church lawfully discriminate against an employee or applicant for employment on the basis of moral teachings? In some cases, religious organizations will be able to demonstrate that their moral teachings are integral to their religious beliefs, and therefore employment discrimination based on moral teachings is a form of religious discrimination that is permitted by Title VII.

Tip. To avoid any confusion, religious organizations that take an adverse employment action against an employee or applicant for employment as a result of the organization's moral teachings should word their determination with references to relevant passages from scripture. This will make it more likely that a court will view the decision as a protected form of religious discrimination.
Tip. It is common for church employment handbooks or employment contracts to state that employees will be expected to conform to the church's moral teachings. Some churches spell out with a high degree of specificity the moral teachings employees will be expected to follow. Other churches use vague references to moral or religious teachings. In the latter case, it is a good practice for the handbook or contract to specify that the church board, or some other officer or body, has the sole and final authority to determine the church's moral tenets. This will reduce any chance of confusion as to the meaning of these terms.

While religious employers may discriminate on the basis of religion in their employment decisions, they may not use "religious standards" as a pretext for discriminating against an employee who a member of a protected class under state or federal law.

Tip. It is an excellent practice for religious employers to have new employees sign a statement agreeing to be bound by the employer's personnel policies. This eliminates any claim by employees that they "didn't know" they were expected to abide by such standards. It is imperative that these forms be retained since they will be vital in the employer's defense to a subsequent discrimination claim. Note, however, that such policies will not protect a religious employer against a discrimination claim by a lay employee who argues that the policy is not being applied fairly or consistently.
Case studies
  • A federal district court in California refused to dismiss a lawsuit brought by a former church employee who was dismissed after church leaders learned that she was pregnant out of wedlock. A church operated a private school, and required all employees to be "born again believers living a consistent and practical Christian life." Employees were required to sign a statement of faith, and to commit themselves to the mission of the church and to a Christian lifestyle that emulates the life of Christ. The school's librarian, a female, signed an annual affirmation agreement in which she agreed that she would be bound by the moral values and religious beliefs of the church. As an employee, the librarian received an employee manual that repeatedly stressed the importance of employees living a life in conformity to the beliefs and values of the church. The librarian was fired when church leaders learned that she was pregnant out of wedlock. The librarian filed a lawsuit in federal court, asserting that the church and school discriminated against her on account of her pregnancy in violation of Title VII. The church and school filed a motion to dismiss, alleging that the librarian had been fired "for the sin of being pregnant without benefit of marriage" (a condition inconsistent with the religious values of the church and school). However, the church and school later asserted that the librarian's dismissal had nothing to do with her pregnancy, but rather was based on her adulterous relationship. Her pregnancy was evidence of the adultery but had nothing to do with the religious reason for her dismissal. A federal court acknowledged that the "new position" of the church and school—that the librarian was fired for adultery, and not on account of her pregnancy—would not give rise to a Title VII claim since Title VII specifically permits religious employers to discriminate on the basis of religion in employment decisions. However, the "old position" of the church and school—that the librarian was fired because she was pregnant and not married—raised the possibility of sex discrimination. This case illustrates the importance of accurately describing the basis for terminating an employee. There is a critical legal difference between dismissing an employee on account of pregnancy (even if out of wedlock) and dismissing an employee on account of adultery (of which pregnancy is merely evidence). [96] Vigars v. Valley Christian Center, 805 F. Supp. 802 (N.D. Cal. 1992).
  • A federal district court ruled that a church school may have violated a federal ban on pregnancy discrimination by terminating a female teacher who was pregnant on the day she was married. While the school insisted that its decision was based solely on its moral teachings, the court was not persuaded. It concluded: "No one questions the school's religious belief that sex outside marriage is forbidden. The court need not evaluate the plaintiff's spirituality because no one disputes that she engaged in forbidden conduct. The only question to be decided falls well within the competence of the courts: determining whether the plaintiff's evidence established that men and women were treated the same on this issue." [97] Redhead v. Conference of Seventh-day Adventists, 566 F.Supp.2d 125 (E.D.N.Y. 2008).
Dismissing an Employee for Violation of A Church's Moral Teachings

Before dismissing an employee for violating the church's moral teachings, church leaders should ask the following questions:

(1) Is there sufficient evidence to support our decision?
(2) Did we inform the employee, in an employee handbook or other document that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?
(3) How will we describe the basis for our decision? The best description will refer to the church's doctrinal tenets, and scriptural citations. Stay away from words such as "pregnancy" that can have a "secular" meaning, and that diminish the "religious exemption" available to churches under most federal and state civil rights and employment laws.
(4) How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally? Or, have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations, but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that an employee who is protected against discrimination by state or federal law is not being treated less favorably than other employees in previous cases.
(5) Have we consulted with an attorney before taking final action? A number of courts have ruled that Title VII's exemption of religious organizations from the ban on religious discrimination in employment does not apply if a religious organization uses religion as a "pretext" to discriminate against a member of a protected class. This is a very important qualification. Religious organizations can discriminate in their employment decisions on the basis of religion, but they must be consistent. To illustrate, a church that dismisses only female employees on the basis of adultery could not justify this practice on the basis of the Title VII exemption.
Case studies
  • A federal appeals court 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 the 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 reemployment 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 woman sued the school, claiming that it committed unlawful sex discrimination when it fired her. The court ruled that the school lawfully dismissed the woman on the basis of her violation of its religious teachings against premarital sex and not because she was pregnant. The court rejected the woman's claim that the school applied its policy against premarital sex in a discriminatory way that was more strict when women were involved. The court observed that "although Title VII requires that [the school's] code of conduct be applied equally to both sexes, [the school] presented uncontroverted evidence … that [the administrator] had terminated at least four individuals, both male and female, who had engaged in extramarital sexual relationships that did not result in pregnancy." Further, the court acknowledged that the school's policy occasionally may have been violated because the administrator was unaware of every instance of premarital sex by his staff, but it insisted that "isolated inconsistent application" of the policy "was not sufficient to show that [the school's] articulated nondiscriminatory reason was not the real reason for [the woman's] termination." [98] Boyd v. Harding Academy of Memphis, Inc., 88 F.3d 410 (6th Cir. 1996). See also Herx v. Diocese, 2015 WL 1013783 (N.D. Ind. 2015).
  • A federal court ruled that a churchaffiliated private school could be sued by a former employee who had been dismissed for extramarital sexual relations.[99] Ganzy v. Allen Christian School, 995 F. Supp. 340 (E.D.N.Y. 1998). 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. 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. It 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 on 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."
Tip. It is common for church employment handbooks or employment contracts to state that employees will be expected to conform to the church's moral teachings. Some churches spell out with a high degree of specificity the moral teachings employees will be expected to follow. Other churches use vague references to moral or religious teachings. In the latter case, it is a good practice for the handbook or contract to specify that the church board, or some other officer or body, has the sole and final authority to determine the church's moral tenets. This will reduce any chance of confusion as to the meaning of these terms.
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