While religious discrimination in hiring is prohibited by Title VII of the Civil Rights Act, an explicit exception for any religious "corporation, association, educational institution, or society" protects the integrity of houses of worship and other religious institutions, and avoids governmental intrusion into religious matters. But when does a non-profit humanitarian organization officially become a religious organization qualifying for this exemption? If its mission statement is religious? If it holds regular worship activities? If it acts out of a religious motivation?
Religious nondiscrimination laws are a good thing for our country, and for the religious liberty of all Americans. They help ensure that – as much as possible – we never have to decide between our faith and our ability to earn a living. But an exception makes sense as well – a Baptist church should be able to hire Baptist ministers, after all. Still, how wide does this exception extend? That's the boundary the 9th Circuit addressed in an opinion released yesterday, resolving a case brought by 3 employees of World Vision who were fired for not believing in the Holy Trinity.
World Vision is a global humanitarian aid organization with a Christian mission. (It also receives much of its funding from government grants, making its hiring and firing practice controversial lately, but whether government funding affects Title VII exemptions was not an issue in this case) In a 2-1 decision, the court concluded that it does indeed qualify for the hiring exemption, and proposed a test for making such distinctions:
a nonprofit entity qualifies for the…exemption if it establishes that it 1) is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), 2) is engaged in activity consistent with, and in furtherance of, those religious purposes, and 3) holds itself out to the public as religious.
In his concurring opinion, Judge Andrew Kleinfeld writes that he would narrow that definition by including another requirement: 4) "does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts."
Judge Marsha Berzon dissented, arguing that this ruling expands the hiring exemption far afield from what Congress intended.
My colleagues may wish to expand that narrow exemption to nonprofits that assert they are motivated by religious principles. But that interpretation would severely tip the balance away from the pluralistic vision Congress incorporated in Title VII, toward a society in which employers could self-declare as religious enclaves from which dissenters can be excluded despite their ability to do the assigned secular work as well as religiously acceptable employees. The consequence would be a broadened impact on the religious freedom of employees and prospective employees, who would feel compelled to reshape their religious beliefs so as to assure their economic survival.
