Religious Staffing Is Not Job Discrimination
Many faith-based organizations—houses of worship, faith-based service organizations, and religious educational institutions—seek, for some or all staff positions, people who agree with the organization’s faith commitments. This is sometimes pejoratively called “religious job discrimination,” but in fact it is an instance of a vital constitutional freedom and the exercise of an important management tool. It is no different in principle from the “discrimination” exercised by a Democratic senator when she hires only true-blue Democrats for her staff or the “discriminatory” action of an environmental policy group that refuses to offer employment to skilled applicants who don’t also show great concern for the environment.
Religious staffing decisions by religious organizations are fully protected by our nation’s fundamental civil rights law, the 1964 Civil Rights Act. Title VII of the Act, as amended in 1972 (which only applies to organizations with fifteen or more employees), prohibits job discrimination on various grounds, such as national origin, race, sex—and also religion . . . but it exempts religious staffing by religious organizations from that prohibition. In other words, in our fundamental civil rights law, it is not “discrimination” for a religious organization to select staff with reference to their religious convictions. The exemption includes all employees of a religious organization—not only clergy, the executive director, and the chaplain but also a secretary, maintenance person, and other staff.
This broad exemption for religious staffing by religious organizations honors the religious freedom of faith-based organizations and prevents government from excessive entanglement with religious organizations by second-guessing their best decisions about staff qualifications and the importance of common convictions. The religious staffing freedom was unanimously upheld by the U. S. Supreme Court in Corporation of the Presiding Bishop v. Amos (1987). State and municipal civil rights laws and human rights codes contain similar exemptions to permit religious staffing by religious organizations.
However, when government funds are involved (grants, contracts), religious staffing is sometimes restricted by specific laws. Some federal social-service programs, and some states and large cities, require every recipient of the government funds to agree not to take account of religion when hiring people, without exempting religious staffing by religious organizations. But this is not a universal restriction when a faith-based organizations receives government funds, and the faith-based organization may be able to have the restriction set aside.
Religious staffing is a complex and volatile issue because it involves fundamental protections not only for individuals seeking employment but also for organizations seeking to maintain their fundamental values—and these two kinds of protections may conflict in particular instances.