Pastor, Church & Law

Application to Religious Educational Institutions

§ 08.12.02

Key Point 8-12.02. 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 educational institutions are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

Title VII, Section 703(e)(2) of the Civil Rights Act of 1964 specifies:

[I]t shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

This provision exempts religious educational institutions, whether at the primary, secondary, or college level, from the prohibition of religious discrimination contained in Title VII of the Civil Rights Act of 1964. Significantly, this provision speaks generally of the right of religious educational institutions to discriminate on the basis of religion in the hiring of employees who will directly promote religious belief, such as teachers, as well as those who will not, such as clerical, custodial, and administrative personnel. The United States Supreme Court has ruled that this exemption does not violate the First Amendment’s “nonestablishment of religion” clause.93 Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987). This case is discussed below.

Case studies

  • A federal appeals court ruled that a teacher could not sue a church-operated school for discrimination after it refused to renew her contract because of her violation of the church’s moral teachings. A divorced teacher at a Catholic school remarried, and was later informed by the school that she would not be rehired for the following school term. The school based its decision on the employment contract which noted that a teacher could be dismissed “for serious public immorality, public scandal, or public rejection of the official teachings, doctrine or laws of the Roman Catholic Church.” The school informed the teacher that she would not be rehired because she had remarried without pursuing “proper canonical process available from the Roman Church to obtain validation of her second marriage,” and thereby had com-mitted a serious offense against the “Church’s teachings and laws on the indissolubility of Christian marriage and the sacramental nature of the marriage bond.” The dismissed teacher sued the school, claiming that her dismissal violated Title VII of the Civil Rights Act of 1964. A federal appeals court rejected the teacher’s claim. It concluded: “[I]t does not violate Title VII’s prohibition of religious discrimination for a parochial school to discharge a Catholic or a non-Catholic teacher who has publicly engaged in conduct regarded by the school as inconsistent with its religious principles. We therefore hold that the exemptions to Title VII cover the parish’s decision not to rehire [the teacher] because of her remarriage.” 94 Little v. Wuerl, 929 F.2d 944 (3rd Cir. 1991).
  • A federal appeals court ruled that a church-affiliated university did not commit unlawful discrimination when it dismissed a professor in its divinity school.95 Killinger v. Samford University, 113 F.3d 196 (11th Cir. 1997).The professor had been employed to teach at a divinity school associated with Samford University—a Baptist university in Birmingham, Alabama. The professor claimed that he was dismissed by the divinity school’s dean because he “did not adhere to and sometimes questioned the fundamentalist theology advanced by the leadership” of the divinity school. The professor sued the university, claiming that it had discriminated against him on account of his religious views in violation of Title VII of the Civil Rights Act of 1964. A federal district court dismissed the case, and the professor appealed. A federal appeals court upheld the district court’s decision. It concluded that Title VII’s exemption of “religious institutions” from the ban on religious discrimination in employment applied to the school. It based this conclusion on the following considerations: (1) the univer-sity was established as a “theological” institution. (2) The university’s trustees are all Baptists. (3) Nearly 7 percent ($4 million) of the university’s budget comes from the Alabama Baptist Convention (the “Convention”)—representing the university’s largest single course of funding. (4) The university submits financial reports to the Convention, and its audited financial statements are made available to all Baptist churches in Alabama. (5) All university professors who teach religious courses must subscribe to the Baptist “statement of faith,” and this requirement is clearly set forth in the faculty handbook and in faculty contracts. (6) The university’s charter states that its chief purpose is “the promotion of the Christian religion.” (7) The university is exempt from federal income taxes as a “religious educational institution.” The court also concluded that the school qualified for the exemption of “religious educational institutions” from Title VII’s ban on religious discrimination in employment since it was “insubstantial part” supported by the Convention: “Continuing support annually totaling over $4 million … accounting for seven percent of a university’s budget, and constituting a university’s largest single source of funding is of real worth and importance. This kind of support is neither illusory nor nominal. So, the Convention’s support is substantial.” The court concluded: “We … must give disputes about what particulars should or should not be taught in theological schools a wide berth. Congress, as we understand it, has told us to do so for purposes of Title VII. Also, such a construction allows us to avoid the First Amendment concerns which always tower over us when we face a case that is about religion.”

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