Editor’s Note: Since this article published, the US Supreme Court handed down its ruling concluding the definition of “sex” under Title VII of the Civil Rights Act of 1964 should also include sexual orientation and gender identity (Bostock v. Clayton County, 140 S. Ct. 1731 (2020)). However, the Court also said the decision should not apply to religious organizations. Be sure to read attorney Frank Sommerville’s in-depth analysis of Title VII and what the Bostock decision means for churches and religious organizations.
Three cases argued last month before the United States Supreme Court raise a key employment question that may significantly affect the way churches approach future hiring, firing, compensation, and benefits decisions involving nonministerial employees.
Though a ruling is not expected until the Supreme Court’s current term ends in the spring of 2020, legal experts say congregations with theologically conservative views of human sexuality should note the situation and contemplate taking several steps now to protect those positions.
At issue before the Supreme Court: How the term sex should be interpreted under Title VII of the Civil Rights Act of 1964. The federal law prohibits employers with 15 or more workers from discriminating against people based on their race, color, religion, national origin, or sex, the latter term long-assumed to mean biological gender (male or female).
The plaintiffs in the three cases, however, argue the definition means more than biological gender and should encompass sexual orientation and gender identity, thus providing legal protections for people who are gay or transgendered. The defendant employers—two for-profit businesses and one county government—contend the respective dismissals in their cases were not solely based on sexual orientation or gender identity, if at all. And even if they were, the defendants add, Title VII does not prohibit decisions based on such criteria because Congress never contemplated such a broad meaning of sex when the law was passed 55 years ago.
The three cases—Bostock v. Clayton County, Georgia; Altitude Express v. Zarda; and Harris Funeral Homes v. the Equal Employment Opportunity Commission—were consolidated into one case (Bostock) by the Supreme Court since they address similar matters. Although no church or religious organization is involved with this particular litigation, religious-related concerns still arose during oral arguments, leaving observers to wonder what potential impact could come to churches if a Court majority sides with the plaintiffs.
“If the Supreme Court rules that sexual orientation/gender identity discrimination is illegal, then churches would face the prospect of lawsuits by gay or transgender individuals who are denied employment in nonministerial roles,” said Thomas Berg, a professor with the University of St. Thomas School of Law in Minnesota, through an email interview. “But it’s highly uncertain whether the Court will declare sexual orientation/gender identity discrimination illegal.”
A “ministerial exception”—but what else?
Churches already receive broad First Amendment protection to select their ministers without interference by civil courts—a right known as the “ministerial exception” that was unanimously recognized and affirmed by the Supreme Court after its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. However, Hosanna-Tabor left open the question of just how much latitude churches receive with employment decisions involving nonministerial positions, such as those of secretaries, bookkeepers, or janitors.
“Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree,” Chief Justice Roberts wrote in the Hosanna-Tabor opinion. “We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.”
Title VII, as well as other case decisions, offer three additional clues about potential exemptions for churches and their nonministerial employment decisions, but ambiguity remains:
- Clue No. 1: Title VII applies to employers that engage in commerce and employ 15 or more people for at least 20 weeks in either the current or previous calendar year. This means churches with fewer than 15 employees are not subject to the federal law. (However, small churches still must note whether state employment laws apply to them—more on that below.)
- Clue No. 2: Title VII contains an exemption allowing a religious organization to hire individuals “of a particular religion.” For instance, Christian churches do not have to hire Muslims, nor do Muslim mosques have to hire Christians. In a key 1987 decision, Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos, the Supreme Court affirmed this exemption and even went one step further, indicating courts should refrain from inquiring into how much nonministerial roles are religious or secular in nature.
- Furthermore, lower federal courts have varied in their interpretations of the religion-based exemption, some narrowly, others broadly, noted Luke Goodrich, an attorney with the Washington, DC-based Becket Fund for Religious Liberty, in an email interview.
Attorney Sally Wagenmaker, whose Chicago-based firm serves churches and nonprofits, said she believes both the Title VII religious exemption and the Amos decision provide churches with strong cover, and still will do so regardless of the current slate of cases before the Supreme Court. “Taken together, a church employer should be able to impose a code of conduct or similar religious standards, such as no sexual activity outside of one man/one woman marriage, consistent with its biblical standards,” she said in an email interview.
- Clue No. 3: Title VII includes a job-based exemption called a “bona fide occupational qualification” (BFOQ). Under this exemption, when a position requires a specific qualification in order for the employer to operate, such as religious beliefs and behaviors for a specific role at a church, then the employer may lawfully discriminate based on that qualification. “The limit is that the Supreme Court has said this exemption is ‘extremely narrow,’ applying only when sex or another characteristic ‘actually interferes with the employee’s ability to perform the job’ in matters involving the entity’s ‘central mission,’” Berg said. It is therefore hard to say how a court would view a religion-based BFOQ used specifically with a nonministerial job in a church.
Though these three clues offer possible reassurances about the protections churches receive, notable uncertainty still lingers. With the Bostock, Zarda, and Harris Funeral Homes cases looming, that leaves the question open as to how an expanded definition of sex would or would not affect churches in their nonministerial employment decisions.
What about Religious Freedom Restoration Acts?
In 1993, Congress passed—nearly unanimously—the Religious Freedom Restoration Act (RFRA). After a subsequent Supreme Court ruling deemed the law applied only to the federal government and not state governments, at least 21 states have passed similar laws.
In general, these laws say the government may not “substantially burden” the free exercise of religion protected by the First Amendment unless the government can show both a “compelling state interest” exists and that the action it took to further that interest was administered in the narrowest way possible. Some theorize RFRAs could offer protection from Title VII complaints against churches should the Supreme Court decide to interpret sex to include sexual orientation and gender identity.
However, RFRAs are not necessarily a viable defense since discrimination lawsuits are initially brought by private parties, not government actors, and RFRAs specifically address government-initiated actions, Berg said. “A small number of courts have held that RFRA applies only to suits involving government parties, such as criminal or civil prosecutions, not to suits brought by private parties,” he added. “The Supreme Court has not yet resolved that uncertainty either.”
Also unclear: Whether any action triggered by a private party complaint and pursued through the EEOC or a comparable state agency would sufficiently constitute the “state action” required for a RFRA-tied defense.
State employment laws
Also lurking in the background are state employment discrimination statutes. Many states set lower employee-count thresholds than Title VII, and they may not include religious and BFOQ exemptions similar to Title VII. As the language of Title VII notes, a state law will supersede it whenever the state law is stricter in its language or requirements.
“Since state laws can vary widely, churches should investigate them—particularly to determine whether any express exceptions apply and, if so, their scope,” Wagenmaker said.
While local laws may institute stricter standards, they still are limited by the US Constitution, too, added attorney Frank Sommerville, an editorial advisor for Church Law & Tax. A 2018 decision by a federal district court in Missouri, for instance, found a city ordinance prohibiting discrimination based on sexual orientation violated the First Amendment rights of churches because it lacked a religious exemption, he said. The case, Our Lady’s Inn v. City of St. Louis, does not set national precedent and did not deal with employment law. But it shows municipalities, in general, “have to accommodate the First Amendment. [They] have to accommodate religion and religious organizations, period,” Sommerville said.
Five steps to take now
Until the Supreme Court issues a definitive word about its interpretation of sex under Title VII, legal experts suggest congregations holding traditionally orthodox views of human sexuality take several steps now. These are designed to help reinforce their views as well as defend any future actions they take in relation to those views.
Step No. 1: Churches should document their sincerely held religious beliefs about human sexuality and marriage, and how those clearly align with the church’s purpose and mission, in both their bylaws and employee handbooks, all four legal experts said. While church leaders often ask whether such changes also should be made to a church’s constitution or articles of incorporation, those are not necessary. The constitution does not naturally lend itself to such matters, while articles of incorporation are also less related and, because of their public nature, can draw unnecessary outside scrutiny, Sommerville said.
The policy changes to the employee handbook should be acknowledged and signed by existing ministers and staff, as well as all future hires, and reaffirmed annually, Sommerville added. Additionally, “[t]o be safest,” Berg said, “churches should consider requiring that employees agree not only to behave according to conduct standards but also affirm belief in the standards.”
Berg said that “belief affirmations bolster a church’s claim to the ‘organization-wide’ exemption [under Title VII]: they show that the church consistently makes distinctions based on employees’ beliefs (‘religious discrimination,’ which the exemption protects), not based on their or their partner’s sex or sexual orientation (‘sexual orientation/gender identity discrimination,’ where the exemption’s application is more uncertain).”
These steps also provide stronger protections for churches with respect to state laws, even when those laws are more employee-friendly, Berg added. “[T]he steps … will often strengthen a church’s claim to an exemption—either because the employee is a ‘minister’ (and thus the First Amendment protects the church), or because adherence to traditional sexual norms in that position is necessary to the church’s mission (and thus is a ‘BFOQ’), or because the church consistently requires adherence to traditional beliefs, not just opposite-sex-only conduct (thus it discriminates based on religion, not sex or sexual orientation/gender identity),” he said.
Step No. 2: Job descriptions also should be updated. Berg said they “can explicitly state and show that certain employees perform crucial religious functions (making them more likely to be “ministers”), or that sexual-conduct standards in certain jobs are “necessary” to the church’s operation and theological witness (making adherence to the standards a ‘BFOQ’).”
Step No. 3: Goodrich said employment practices from “front-end hiring” to “back-end communication and enforcement” all need to align with the church’s mission. Sommerville said that alignment should incorporate this recommendation he makes to all church clients: “Job applicants should be required to believe and follow the church’s statement of their sincerely held religious beliefs before the church will accept their application. This process establishes that any discrimination occurs only within the context of the church’s sincerely held religious beliefs.”
Step No. 4: The legal experts said churches should regularly consult with qualified legal help. Goodrich encouraged churches to regularly assess their potential employment litigation risks with an attorney. Berg referenced online resources available from Christian Legal Society (CLS) and Alliance Defending Freedom (ADF)—two legal networks consisting of Christian attorneys—that offer further guidance (for CLS, those are found here and here; for ADF, it is found here).
Step No. 5: Churches should make changes now, Sommerville said, rather than await the outcome of Bostock, Zorda, and Harris Funeral Homes. Should a Court decision perceived to be negative occur, changes made after that may give the appearance they came only in response to that adverse outcome. And if a perceived favorable outcome occurs, there is nothing to say a negative one still won’t arise down the road. “Churches need to be prepared for this eventuality,” Sommerville added.
Kindness still counts
Lastly, the experts encouraged church leaders to maintain kindness and civility as they navigate employment-related matters with ministers and staff, especially when controversial theological topics—such as sexual orientation and gender identity—arise.
Work should always be done to minimize potential conflicts, Goodrich said, and to extend “kindness, grace, and generosity to all employees.”
Matthew Branaugh is editor of content and business development for Christianity Today’s Church Law & Tax.