Religious Hiring and Title VII's Religious Exemption

A textualist solution to controversies over religious hiring.

May a religious group legally fire a non-ministerial employee (like a secretary or janitor) for violating the group's religious beliefs about sex or marriage? As I explained yesterday, this is the question presented in a spate of recent cases and likely heading to the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception. In it, I set forth the arguments for and against six potential legal protections for the religious hiring of non-ministers.

In today's post, I'll make the case for what I believe is the most straightforward defense available in these cases: Title VII's religious exemption. Under a plain reading of that exemption, religious groups have the right to limit hiring to employees who share their particular religious beliefs, observances, and practices—including their beliefs and practices about sex and marriage.

Title VII's Text

Although Title VII prohibits sex discrimination in employment, it also includes a religious exemption: "This subchapter shall not apply … to a religious [organization] with respect to the employment of individuals of a particular religion…"

There are two competing interpretations of this exemption. Some courts interpret it narrowly to apply only when a plaintiff brings a claim of religious discrimination—not when a plaintiff brings a claim of sex, race, or national-origin discrimination. I call this the claim-based approach, because it focuses on the nature of the employee's claim.

Other courts interpret the exemption more broadly to apply to any claim of discrimination where the religious organization has engaged in specific, exempted conduct—namely, employing individuals of a particular religion. I call this the conduct-based approach, because it focuses on the employer's conduct rather than the employee's claim. This approach, I argue, is more faithful to Title VII's text.

The Textual Argument

Consider, for example, a case where a religious school dismisses a secretary for entering a same-sex marriage, and the secretary sues for sex discrimination. Does the religious exemption apply?

The textual argument for applying the exemption is simple.

First, the exemption provides that "[t]his subchapter shall not apply" to whomever and whatever falls within the exemption. The "subchapter" referenced is all of Title VII—not one subset of Title VII claims.

Next, the text identifies to whom Title VII shall not apply—"a religious [organization]"—and to what activity of a religious organization it shall not apply—"the employment of individuals of a particular religion."

The key question then becomes: What does is it mean for a religious organization to employ "individuals of a particular religion"? On that question, Title VII provides additional clarity by expressly defining "religion": "The term 'religion' includes all aspects of religious observance and practice, as well as belief…."

Thus, putting it all together, the exemption provides that all of Title VII "shall not apply" when a religious organization employs "individuals of a particular" "religious observance" "practice" or "belief."

This means, of course, that religious groups are free to employ only individuals who share their particular religious beliefs—such as belief in the doctrine of the Trinity. But it also means religious groups are free to employ only individuals who share their particular religious observances and practices—such as refraining from sex outside of traditional marriage. As several courts have said, the exemption "include[s] the decision to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer."

If Congress had wanted to limit the religious exemption to religious-discrimination claims, it could have said, "This subchapter shall not apply to a religious [organization] with respect to claims of religious discrimination arising from the employment of individuals of a particular religion …" But it framed the exemption not in terms of the plaintiff's claim ("claims of religious discrimination"), but in terms of the employer's conduct ("employment of individuals of a particular religion").

This understanding of the religious exemption is confirmed by the use of similar language in the religious exemption in the Americans with Disabilities Act (ADA). The ADA's religious exemption provides: "This subchapter shall not prohibit a religious [organization] from giving preference in employment to individuals of a particular religion." If the narrower, claim-based interpretation of Title VII's religious exemption were correct, then the ADA's religious exemption would be superfluous, because the ADA doesn't authorize claims of religious discrimination; it authorizes only claims of disability discrimination. The same is true of the Pregnant Worker's Fairness Act, which expressly incorporates Title VII's religious exemption, but doesn't allow for religious-discrimination claims.

Counterargument

Courts that have adopted the narrower, claim-based approach have done so primarily based on policy concerns. In particular, these courts have warned that the conduct-based approach would "swallow Title VII's rules" on race and sex discrimination and permit odious practices like "terminat[ing] an employee who married someone of a different race."

But this misunderstands the conduct-based approach. Under that approach, religious groups remain subject to race- and sex-discrimination claims whenever they make an employment decision based on anything other than the employee's religious beliefs, observances, or practices. So if a group says the employment decision was based on poor performance—or tardiness, budgetary reasons, personality fit, lack of technological savvy, etc.—it can be sued for race and sex discrimination.

Even if a group says the employment decision was based on the employee's religion, the religious exemption still doesn't apply if the religious reason was pretextual. And beyond Title VII, any organization engaging in race discrimination is subject to damages under Section 1981, loss of federal funding under Title VI, and loss of tax-exempt status—all without any religious exemption.

On the other hand, strong policy considerations support the conduct-based approach. Tens of thousands of religious organizations have long asked their employees to share their religious beliefs and practices—including traditional beliefs on sex and marriage. This has long been permissible. And the Supreme Court in Obergefell said these organizations should receive "proper protection as they seek to teach" and "advocate with utmost, sincere conviction" that "same-sex marriage should not be condoned." But the narrow, claim-based approach would do the opposite—subjecting all these organizations to liability and making it impossible to form religious groups around traditional religious beliefs and practices regarding sex and marriage.

Precedent

Since Bostock, no court of appeals has yet ruled on the scope of Title VII's religious exemption. However, Bostock itself seems to lend support to the broader, conduct-based view. There, the Court highlighted Title VII's "express statutory exception for religious organizations" as one of several "doctrines protecting religious liberty" that may apply in "future cases" involving sex discrimination. And it would make little sense for the Court to highlight this exemption in a sex-discrimination case if it believed it had no application to sex-discrimination claims.

Since Bostock, too, three federal appellate judges (Judges Easterbrook and Brennan on the Seventh Circuit, and Judge King on the Fourth) have issued concurring opinions on Title VII's religious exemption. All three have argued that the conduct-based approach is the most "straightforward reading" of the text.

What Comes Next? Pivoting to State Courts

If and when this issue reaches the Supreme Court, I strongly suspect the Court will adopt the conduct-based approach, as it follows directly from Title VII's text and structure. However, adopting the plain meaning of Title VII's religious exemption won't resolve this entire genre of cases.

Due in part to Title VII's strong religious exemption, some plaintiffs have started bringing their employment-discrimination claims in state court under state law. And while most states have statutory religious exemptions that parrot Title VII's or are even broader, at least two state supreme courts—Washington and Maryland—have recently gutted their statutory religious exemptions, holding that they don't apply to the hiring of non-ministers.

This means that when a non-minister sues for employment discrimination under state law, there may be no statutory defenses available. The only defenses, then, will have to be based on the Constitution.

My next two posts will lay out the arguments for and against two of the leading constitutional defenses: the doctrine of church autonomy and the freedom of expressive association.