The Importance of the Religious Staffing Freedom

July 16, 2008

by Stanley Carlson-Thies

The nation’s premier employment nondiscrimination law, Title VII of the Civil Rights Act of 1964, includes an exemption so that religious organizations may make employment decisions based on religion (but not race, color, ethnicity, or sex). The exemption covers all staff positions, not only ministerial roles. It was unanimously upheld by the U.S. Supreme Court in a case involving a janitor in a Mormon health club (Corporation of the Presiding Bishop v. Amos, 1987). The freedom enables the organizations to preserve their religious identity and faith-based standards. Equally important, it prevents government from interfering with the internal religious decisions of those organizations. Some faith-based organizations use the freedom to consider religion, along with other criteria, in selecting all staff; others only use religious criteria when choosing leaders or persons in specifically religious roles. The religious staffing exemption does not compel religious organizations to consider religion as an employment criterion; it simply preserves their freedom to decide about this critical matter without governmental interference.

Not only evangelical Protestant groups regard the freedom to be vital. Catholic leaders recently led efforts in Colorado that quashed a proposal to require all recipients of state funds to ignore religion in making job decisions. National Catholic leaders have reminded Congress of the importance of the freedom (e.g., the 2004 letter from Catholic Charities, the Catholic Health Association, and the US Conference of Catholic Bishops, concerning reauthorization of the CSBG program). The Union of Orthodox Jewish Congregations and Agudath Israel strongly defend the right. Marc Stern, general counsel for the American Jewish Congress, has publicly warned of the damage that a ban on religious staffing will do to Jewish social service organizations.

The freedom to select staff fitting a religious organization’s mission is similar to the freedom of Senators to “discriminate” on the basis of political views when selecting staff, and of environmental groups to “discriminate” on the basis of commitment to “green” principles in assessing potential employees. Like the ideological staffing freedom those groups regard as essential, the religious staffing freedom does not, as a constitutional and legal matter, disappear merely because government funds are received by the religious organization—see the emphatic recent New York City federal decision, Lown v. Salvation Army (S.D.N.Y. 2005). However, some federal programs (e.g., Head Start and the Workforce Investment Act) do require all grantees not to use religious criteria in their employment decisions—thus excluding faith-based organizations that regard religious staffing to be crucial to their operations and identity. (Religious organizations facing this restriction may have recourse to the Religious Freedom Restoration Act to overcome the ban.) On the other hand, those federal program statutes that include Charitable Choice language (such as the law for the Temporary Assistance for Needy Families program) specifically protect the religious staffing freedom despite the receipt of federal funds. 

Most federal programs do not include any employment rules, thus leaving intact the religious hiring exemption for participating faith-based organizations. In other words, the general federal rule concerning religious staffing by religious organizations is the Title VII exemption that honors that freedom. Only certain service programs restrict the freedom (some state and local governments apply a more restrictive rule when using federal funds to operate programs).

Senator Barack Obama has proposed an unprecedented new restriction on religious staffing that would apply across all federal programs. Among the “guiding principles” he has proposed for his version of the faith-based initiative is a new requirement that faith-based organizations that receive federal funds cannot hire according to religion for the federally funded program. Religious staffing will be permitted elsewhere in the organization. 

Under this plan, faith-based organizations providing federally funded overseas development help and disaster relief will, for the first time, be required to ignore religion when hiring people to operate those programs. Religious colleges and universities whose students receive federal financial aid and whose professors conduct federally funded research apparently will lose their freedom to insist that their faculty be committed to particular religious beliefs. Faith-based organizations considering whether to help out the government by participating in federally funded programs to mentor the children of prisoners, offer job training to the hard-to-employ, or operate a health care clinic for the uninsured will have decide whether it makes sense to run a bifurcated organization with two separate employment policies—a staff committed to a religious vision and another staff with only secular credentials. 

There has never been this kind of sweeping federal restricting of the Title VII religious staffing exemption. The proposed policy is not a return to the status quo before the Bush faith-based initiative, as some have said. On the other hand, the proposed policy does directly contradict the Charitable Choice provision signed into law by President Clinton for three federal programs.

Some have claimed that the religious staffing freedom is not very important to faith groups because savvy executives can get around the ban. But religious groups should not need to evade the law in order to partner with the government. Religious staffing by religious organizations should be protected. It is not invidious discrimination under Title VII. It does not become unnecessary and evil simply because a group has agreed to help the government serve the needy.

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