Religious Staffing: Restrictions and Freedoms

Despite the common misconception, faith-based organizations that receive government funds are not thereby automatically obligated to ignore religion when they make staffing decisions. Rather, whether they may, or must not, staff on a religious basis is dictated by federal, state, or local laws, which may differ from each other. 

The federal funds for social services that come to state and local governments are accompanied by federal standards concerning religious job discrimination.

The basic federal civil rights employment law (Title VII of the 1964 Civil Rights Act, as amended), provides that faith-based organizations are free to take into account religion when making staffing decisions. This freedom applies to all faith-based organizations, not only houses of worship, and it extends to all staff positions, not only to so-called ministry positions. This freedom is not lost simply because a faith-based organization receives government funds.

However, a limited number of federal social-service programs, such as Head Start, Community Development Block Grants, and programs funded by the Workforce Investment Act, require all award recipients not to discriminate on the basis of religion in making employment decisions. Faith-based organizations are subject to this restriction. (Faith-based organizations may turn to the Religious Freedom Restoration Act for relief.) 

Some states and municipalities forbid religious job discrimination by all contractors and grant recipients. This restriction presumptively applies when the funds originate from the federal government. However, when the federal funds are covered by Charitable Choice, such state and local restrictions are preempted by Charitable Choice’s design to protect the governance and religious character of faith-based organizations that receive government funds.  There is one exception.  For details, see the discussion in Carl H. Esbeck, et al., The Freedom of Faith-Based Organizations to Staff on a Religious Basis (Center for Public Justice, 2004), 70-77. A PDF copy of the book is available for download.

The Equal Treatment regulations arguably do not preempt state and local restrictions on religious staffing. However, faith-based organizations may wish to appeal to the intent of the regulations to protect their governance and religious character and to their constitutional Free Exercise rights.