In the United States, the law protects individuals from being discriminated against in employment based on religion. At the same time, believers enjoy a great deal of freedom in operating and governing churches and schools free from government interference. These institutions are subject to many of the laws of the land regarding employment, including certain laws prohibiting discrimination. Often there is confusion as to whether or how a law applies to a church or school.

Sometimes believers mistakenly believe that a church or school is subject to laws that it is not, or that it is exempt from laws that really do apply. Employment laws contain some notable exceptions for religious organizations, and recently several federal circuit courts and the United States Supreme Court have looked at some of these issues. In this article, we will look at religious freedom in the context of employment discrimination law.

The government in the United States has prohibited employment discrimination in many forms for years. The Equal Employment Opportunity Commission (EEOC)is an independent commission established by Congress after passage of the Civil Rights Act of 1964 to investigate and prosecute cases of alleged discrimination in employment. An employee may have an individual claim against an employer based on illegal discrimination, and the EEOC may assist the employee in investigation, but may also independently prosecute cases.

The Civil Rights Act of 1964 is often thought of as the law that prohibited discrimination based on race. While it is true that this law did prohibit such discrimination, Title VII of the Act also contained provisions preventing discrimination based on religion. This act applies only to companies with 15 or more employees, but where it does apply, it provides some valuable pro-tection for Christians in the workplace. However, for Christian business owners the act also requires that other religions be accommodated.

The Act generally prohibits an employer from treating a person unfavorably because of his religious beliefs. Employers must treat employees of different religions equally in all aspects of employment, such as in hiring, firing, pay, job assignments, promotions, layoffs, training, and fringe benefits. Employers cannot allow employees to be harassed because of their beliefs, or restrict them to certain jobs or areas because of their beliefs. Employers must also make reasonable accommodations so that employees can maintain their sincerely held religious beliefs.

This law provides some protection to believers working in today’s world. One obvious example is for Sabbath observance. More and more employers are opening their doors for work on Sunday. Many cases have found that employers have not accommodated employees’ religious beliefs when they require them to work on the Sabbath as a condition of employment. The question of whether the employer can reasonably accommodate an employee who won’t work on Sunday depends on whether this would pose an undue hardship on the employer, which is usually determined on a case-by-case basis.

As mentioned above, employers have to accommodate only “sincerely held” beliefs. Written statements of a church’s beliefs and doctrine are often the best evidence to show that an employee’s beliefs are sincerely held. As will be seen later in this article, clear statements of beliefs and doctrines are also important when our churches and schools are in the role of employer. While we are always called to be clear and unwavering in holding fast to the truth, such clarity is also important when using the laws of the land in which God has placed us. As traditional “Christianity” recedes and apostatizes or is even replaced by other religions, our beliefs will be more and more strange in the world around us. As long as the law of the land provides protection for those beliefs, we must set them out clearly to avail ourselves of the protection of the law.

Many people mistakenly believe that, based on Title VII of the Civil Rights Act of 1964, our own schools or even churches are prohibited from discriminating by giving preference in hiring to members of our own denomination. However, there are two exceptions to the rules against discrimination, one for religious organizations, and one known as the ministerial exception.

The religious organization exception provides that religious institutions may give preference in employment to members of their own religion if the organization’s “purpose and character are primarily religious.”¹ Four of the factors considered by the EEOC and courts in determining whether an institution’s purpose and character are primarily religious include: 1) Do its Articles of Incorporation state a religious purpose? 2) Are its day-to-day operations religious? (e.g., curriculum directed towards a certain religion) 3) Is it not-for-profit? 4) Is it affiliated with or supported by a church or other religious organization?²

It is important that as churches and schools we have our legal paperwork in order so that we can clearly show that our actions are consistent with our doctrines and beliefs. Articles of Incorporation, Bylaws, and IRS filings should be reviewed from time to time to ensure that they are clear in stating the basis for our institutions. Article 28 of the Church Order directs that the churches take legal measures so that they “for the possession of their property, and the peace and order of their meetings can claim the protection of the Authorities.” For these same reasons we need to ensure that the legal status of our schools and churches allows us to avail ourselves of the protection of the law, including employment laws, to the greatest extent possible without allowing the government to infringe upon the royal government of Christ over His church.

This religious-organization exemption remains firmly intact. Recently the Ninth Circuit Court of Appeals ruled that World Vision, a Christian humanitarian organization, was within its rights to fire three employees who did not agree with the statement of faith of the organization.³ The United States Supreme Court refused to hear the employee’s appeal of this decision, allowing it to stand.4

Some believe that since our schools and churches are religious institutions, they are free from all laws prohibiting discrimination. This is true only with regard to employees who are covered under the “ministerial exception,” which will be discussed later. Employees who do not come under the “ministerial exception,” must still be treated equally regardless of age, gender, or disability. What about different pay based on sincerely held religious beliefs, such as the belief that men are the head of the home and are to be the primary financial support for the family? The EEOC Compliance Manual contains the specific example of a day-care center that pays male employees more based on this principle, and concludes that this would be illegal discrimination.

The second exception to the rules against discrimination in employment is the “ministerial exception.” This exception is based on the Free Exercise Clause of the First Amendment to the U.S. Constitution, on the principle that the government should not interfere with the internal affairs of the church. Employees who fall under this exception cannot bring a claim based on Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act, or the Americans with Disabilities Act. This exception is known as the “ministerial” exception because it has long been held to apply to ministers and other members of the clergy. The unanswered question is, to what extent does this exception apply to other employees of religious organizations, such as teachers in Christian schools, who provide instruction on religious subjects?

In October 2011, the United States Supreme Court heard oral arguments in a case presenting just this question. The Hosanna-Tabor Evangelical Lutheran School had a teacher who was discharged, and alleged that she was discriminated against.5 The school asserted that since the teacher gave instruction on religious as well as secular subjects, the ministerial exception applied. The Sixth Circuit Court of Appeals ruled in favor of the teacher and the EEOC, but the Supreme Court agreed to hear the case on appeal. Lord willing, we will look more closely at this case, the arguments on both sides, and the Court’s decision in a future article after the Court’s decision is rendered.

1 Hall v. Baptist Mem. Health Care Corp., 215 F.3d 618, 624-25 (6th Cir. 2000) (college of health sciences qualified as a religious institution under Title VII because it was an affiliated institution of a church-affiliated hospital, had direct relationship with the Baptist church, and the college atmosphere was permeated with religious overtones).

2 EEOC Compliance Manual Section 12-I (C)(1).

3 Spencer v. World Vision, Inc., 633 F.3d 723 (9th Cir. 2011).

4 Spencer v. World Vision, Inc., Sup. Ct. Docket No. 10-1316, (Petition for Cert. denied Oct. 3, 2011).