by Brian Flagler and Craig Gipson

ECPA members have long valued their freedom to make publishing and, in appropriate cases, hiring decisions based on biblical principles.  This summer, ECPA continued its effort to track legal developments in the area of religious freedom.  One of these developments is reflected in this Legal Update and an opinion letter from Alliance Defending Freedom (ADF).  (This letter will be emailed to you separately from ECPA.)  Another is an initiative to evaluate whether an update to ECPA’s governing documents may be warranted to strengthen the association’s freedom to operate as a religious organization under applicable laws.  In the months to come, ECPA plans to share information which may assist members in evaluating their own governing documents.

A brief summary of the intersection between religious freedom and employment discrimination may be helpful.  Title VII of the Civil Rights Act prohibits religious discrimination in employment decisions.  However, religious organizations have long relied upon two exceptions to this rule:  (1) the “general exemption” which allows religious organizations to give hiring preference to adherents to their own religion, and (2) the more narrow “bona fide occupational qualification” (BFOQ) exception which allows employers to take religion into account when necessary for a particular job. This Legal Update will address each in turn.

General Exemption
Jonathan T. McCants, a recognized non-profit tax partner with Bird, Loechl, Brittain & McCants, LLC in Atlanta, regularly advises Christian ministries and other exempt organizations.  Flagler Law Group often recommends Jonathan to serve as co-counsel when his expertise would benefit our clients.  Jonathan summarizes the “general exemption” as follows:

  • Section 702(a) of Title VII, 42 U.S.C. § 2000e-1(a), provides that the nondiscrimination provisions “shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  The Equal Employment Opportunity Commission (EEOC) and many courts have interpreted that to mean that religious organizations may “give employment preference to members of their own religion.”
  • In order to qualify as a “religious organization” for these purposes, the EEOC looks most significantly at (1) whether the governing documents (in particular the articles of incorporation) state a religious purpose, (2) whether the day-to-day operations (the goods produced or services provided) are religious, (3) whether the entity is nonprofit, and (4) whether the entity is “affiliated with” or “supported by,” a church or religious organization.  No one factor is dispositive, and other factors may be considered.  If the organization is religious under this analysis, its ability to discriminate religiously is not limited to the expressly religious activities it carries on.

Note that, based on these factors, the EEOC would usually deem a for-profit ECPA member ineligible for the general exemption.  Additionally, the scope of the general exemption has recently been narrowed by the EEOC, as Jonathan continues:

  • The key qualifier under the EEOC’s interpretation has been that religious organizations are only allowed under this exemption to prefer members of its own religion, but not to discriminate against any other protected class.  Since both the EEOC and the Obama administration argued strongly that the protected status of “sex” included the idea of gender identity and sexual orientation, this meant that religious organizations were not necessarily free to enforce codes of conduct or follow their theological beliefs in refusing to hire, for example, a person in a same-sex marriage or someone attempting to change their body to match their assumed gender.  It does not seem likely that Attorney General Sessions would agree with this interpretation, but we have yet to see a formal change in policy from the EEOC.

Furthermore, there are court cases in motion that could limit the ability of religious organizations to claim this exemption.

Bottom line:  if your non-profit religious organization plans to rely on the general exemption, a number of steps should be taken.  First, ensure that your organization’s governing documents are updated to state its religious purposes.  Second, if your organization is relying on the general exemption to support codes of conduct, housing policies, or employment criteria which may otherwise be deemed discriminatory, work with counsel to document the links between these policies and your organization’s statement of faith and make sure your statement of faith is sufficiently detailed to support the organization’s policies.  Jonathan notes that a religious organization may have a hard time defending a decision to enforce a policy under circumstances in which the employee declares agreement with the organization’s statement of faith and the organization cannot show the policy is a direct outgrowth of the stated theological beliefs of the organization.  If the employee can in good faith claim she or he agrees with the statement of faith but also claim that the conduct prohibited by the policy is not inconsistent with that faith, then the links between the statement of faith and the policy may need to be made more explicit in order for the policy to be covered by the general exemption.

BFOQ Exception
Although the BFOQ exception only applies to certain positions within an organization, this exception can be useful to maintain a religious organization’s freedom to consider religion with regard to those specific positions.  Earlier this summer, ADF provided ECPA with the attached opinion letter explaining the BFOQ exception in detail, including the circumstances in which for-profit religious publishers may claim the exception.

The letter briefly touches on the general exemption and then describes the BFOQ exception in detail, including a summary of cases applying the exception to specific circumstances. Please review the cases to see how they support your organization’s freedom to treat certain positions as eligible for the BFOQ exception, freeing you to take religion into consideration in hiring for these positions.  The balance of ADF’s letter provides an excellent summary of the BFOQ exception.  Please note the letter focuses on federal law and does not address similar state laws which may impose other restrictions.  Each organization should work with their local HR counsel to interpret applicable municipal, state and federal laws, guide implementation of the organization’s employment policies and navigate specific circumstances.

This article is provided for informational purposes and is not intended as legal advice. This article was first published as an ECPA Legal Update.