Title VII and Religious Exemptions

The Civil Rights Act of 1964 was, and still is, an epic piece of legislation. Each of its chapters acts to protect victims of discrimination, although in different ways. Title II, for example, makes it illegal for places of public accommodation (like hotels, restaurants, and movie theaters) to discriminate on the basis of race, color, religion, and national origin; Title III prohibits the same sort of discrimination in public facilities run by state or local government (like courthouses or jails).

Title VII, known to lawyers as 42 U.S.C. } 2000e, was a pivotal part of the act. It broadly prohibits discrimination in public and private employment on the basis of race, color, religion, sex, and national origin. Employers that hire, fire, or harass people based on these criteria can face lawsuits by victims, as well as prosecution by the Department of Justice and the Equal Employment Opportunity Commission.

Title VII, however, does not apply across the board to all employers. It does not apply at all to foreign employers or employers with fewer than fifteen employees. Most significantly for our purposes, it does not apply fully to religious employers. While Title VII does bar religious employers from discriminating on the basis of race, sex, or national origin, it exempts religious employers from the ban on religious discrimination. Religious employers are therefore free to choose their employees along religious lines.

We turn now to the scope of the exemption, where two questions loom particularly large. First, to what types of employees does it apply? Does it apply only to a church’s selection of ministers or does it apply more broadly to any personnel of a church? Second, to what types of employers does it apply? It certainly applies to churches and other similar religious bodies, but does it also apply to nonprofit corporations loosely affiliated with those churches? What about for-profit corporations that want to take a religious attitude?

The first question has been definitively answered. The original 1964 act exempted religious employers only for employee positions that were religious. A church could use religious criteria in selecting a minister, but not in selecting a janitor. That, however, changed in 1972, when the act was amended to broaden the exemption. As a result of the change, religious employers are now free to use religious criteria in making employment decisions for all employees. This decision sparked some controversy. It was largely accepted that religious organizations needed the ability to choose their leaders. That was part and parcel of their right to exercise their religion freely. But giving them the right to use religious tests for all positions seemed to pit the religious liberty of religious organizations against the religious liberty of their run-of-the-mill employees, like janitors or secretaries, whose day-to-day duties were mostly secular. These arguments came before the Supreme Court in 1987, in Corporation of Presiding Bishop v. Amos (483 U.S. 327) when the 1972 exemption was challenged as violating the Establishment Clause. The Court unanimously upheld the broadened exemption. As a result, religious employers now can use religious criteria in choosing personnel, regardless of their station.

The second question is much more unclear. Under Title VII, an employer is entitled to the religious exemption if it can show it is a ‘‘religious corporation, association, educational institution, or society.’’ What that means, however, is somewhat uncertain. On one hand, traditional religious organizations—churches, for example—are certainly exempt. On the other hand, for-profit corporations surely cannot escape religious discrimination suits by suddenly claiming to be exempt religious employers. Ultimately, the key issue courts examine is whether the purpose and character of the organization are really religious in nature. Churches, synagogues, and other traditional religious organizations are clearly religious and therefore exempt. Exempt also are subsidiaries of such organizations, provided the subsidiaries are owned, operated by, or closely affiliated with the parent religious organization. Thus, organizations closely related to the Catholic Church or the Salvation Army will likely be considered exempt religious employers, even if their work is considered secular to some. However, organizations that were not founded for religious purposes or that have mostly secular functions are not likely to be exempt. For-profit corporations are also not likely to be exempt.

The religious exemptions to Title VII have taken on renewed importance in recent years. Programs like Charitable Choice now frequently provide religious organizations with government funds to do socialservice work. To many, allowing religious organizations to discriminate using federal funds is morally and constitutionally problematic. Whether this argument will be successful in the courts or the Congress is not yet clear.

One last issue should be flagged. As we have said, Title VII only exempts religious employers from the ban on religious discrimination—not the bans on race or sex discrimination. How then is it possible that many established churches, including the Catholic and Mormon churches, many Protestant denominations, and schools of Judaism, Buddhism, and Islam, ordain only men? Is this not a violation of Title VII? The answer, somewhat surprisingly, is not to be found in Title VII. Instead, the missing piece of the puzzle is what is known as the ‘‘ministerial exemption,’’ which is thought to be constitutional in nature—an offshoot of the free exercise and Establishment Clauses.

Under this exemption, religious organizations have an absolute right to choose their leaders. Such decisions are not subject to Title VII at all. Thus, a church or synagogue cannot be sued on charges of race, gender, or religious discrimination when choosing its ministers. The scope of the ‘‘ministerial’’ exemption, like the Title VII exemption, is unclear. Certainly clergy qualify, but some cases read the ministerial exemption more broadly, going so far as to protect all those whose duties involve the spreading of religious ideas (such as school teachers or choir directors). One recent Supreme Court case, Boy Scouts of America v. Dale (530 U.S. 640, 2000), suggests perhaps that all nonprofits, religious or not, may have the same right to choose their leaders.

CHRISTOPHER C. LUND

References and Further Reading

• Berg, Thomas C. The State and Religion in a Nutshell. 2nd ed. St. Paul, MN: West Publishing Group, 2004.
• Brant, Joanne C., ‘‘Our Shield Belongs to the Lord’’: Religious Employers and a Constitutional Right to Discriminate, Hastings Constitutional Law Quarterly 21 (1994): 4: 275–321.
• Green, Steven K., Religious Discrimination, Public Finding, and Constitutional Values, Hastings Constitutional Law Quarterly 30 (2003): 1:1–55.

Cases and Statutes Cited

• Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987)
• Boy Scouts of America v. Dale, 530 U.S. 640 (2000)
• 42 U.S.C. } 2000e (Title VII)
• 42 U.S.C. } 604a (Charitable Choice)

See also Accommodation of Religion; Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Charitable Choice; Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987); Discrimination by Religious Entities That Receive Government Funds; Equal Protection Clause and Religious Freedom; Establishment Clause Doctrine: Supreme Court Jurisprudence; Establishment of Religion and Free Exercise Clause; Free Exercise Clause Doctrine: Supreme Court Jurisprudence; Title VII and Religious Exemptions; Unconstitutional Conditions; Zelman v. Simmons–Harris, 536 U.S. 639 (2002)