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Religious Hiring

Religious Hiring by Faith-Based Organizations Is Not Illegal Job Discrimination

After all, they are religious organizations, with a religious mission and motivation, a religious identity, religious activities, and religion-shaped concepts of service. Such an organization, naturally, cares that the convictions and conduct of its staff fits with its religious commitment — just as pro-choice groups aren’t inclined to hire people who will undermine their message, Democratic Senators’ offices screen out Republican applicants, and ecological organizations seek staff that care deeply about the environment.

For that reason, when Congress in 1964 created the basic federal employment non-discrimination rules, it made sure to preserve the freedom of faith-based organizations to hire according to faith. State and local employment civil rights laws include a similar exemption for faith-based organizations. Religious hiring by religious organizations is not a violation of civil rights laws but a freedom built into them.

Some activists believe that the religious hiring freedom does, or should, vanish if the faith-based organization receives government funds to provide education, social services, health care, or overseas development assistance. That’s not the view of the courts or Congress. The courts say the freedom only is given up if the faith-based organization receives money from those government programs that specifically prohibit such hiring. That’s the view of Congress, too — and most of the time, Congress doesn’t add such a prohibition when it creates a program that uses private organizations to provide services. True, some programs include a ban — Head Start, for example. But most federal programs don’t, and some federal programs — those with Charitable Choice language (signed into law by President Bill Clinton) — specifically emphasize that the hiring freedom isn’t lost when a faith-based group participates.

The Bush administration clarified these facts about the religious staffing freedom, and urged Congress (without success) to remove the prohibition in programs that currently have it.

President Obama, on the campaign trail, said that he intended to ban religious hiring in every social service program that a faith-based group operates using federal funds — thus making the current limited prohibition very sweeping. Yet, after he became President, he adopted a different stance. When he introduced his White House Office of Faith-Based and Neighborhood Partnerships, he said that, instead of making a drastic change, he would leave the current rules about religious hiring in place, subject to legal review when questions arise.

This decision to stay with the legal status quo is an acknowledgment of the reality that many of the organizations that currently partner with the federal government to provide services to the poor, sick, and neglected are faith-based organizations that, as the law permits, take account of religion when hiring their staff. Many of them have informed the administration that, should a sweeping ban be introduced, they would be forced to stop their service partnerships with the federal government. The result would be the breaking of many long-standing partnerships and a massive disruption of services to the needy.

Even though in most federal programs Congress has decided to leave the religious hiring freedom intact, some members recently have become severe critics of the practice. They have called religious hiring by faith-based organizations “religious job discrimination” — a practice so immoral that it is intolerable for the federal government to “subsidize” it by allowing it to continue when the group gets federal funds. One member suggested that faith-based groups hire according to religion simply because they despise people of other beliefs so much that they cannot stand to work in the same room with them.

In fact, faith-based organizations take account of religion in hiring not to be against other religions but to be for their own — because they want to make sure that the organization remains true to the convictions of their faith. It isn’t that religious hiring is so immoral that it is wrong for it to continue when federal dollars come into the organization. Rather, religious hiring is so important to the identity and integrity of faith-based organizations that the freedom ought to be protected even when federal funds are involved.

Some faith-based organizations consider religion when they hire for all positions in the organization, top to bottom; other groups insist on the same faith only for some job positions, such as the top leadership, chaplains, and specific other positions. And while sometimes the organization really is seeking job candidates of the same denomination, often the goal is a new staffer who simply is religiously compatible — a fellow Christian, of whatever denomination, for example; and sometimes the goal is even just a candidate who, whatever their faith, is spiritually alert and deeply empathetic with the goals and standards of the organization.

Yet, in all cases, the faith-based organizations believe it must be their choice, their decision, to decide when religious conviction and faith-based standards of conduct ought to be key criteria, along with skills, education, and experience. As Democratic Senator Sam Ervin remarked in 1972, when Congress expanded the exemption in the 1964 Civil Rights Act to permit religious hiring in every single position of faith-based organizations, this expansion was important “to take the political hands of Caesar off the institutions of God, where they have no place to be.” It ought to be up to the religious organizations, not Congress, presidents, or courts, to decide how important religion is to the identity and operations of the organization.

The religious hiring freedom is a vital “tool” for faith-based organizations determined that their services, practices, and staff should exemplify the religious convictions that inspired the creation of the organization. And faith-based organizations are vital “tools” by which people of various religions put “hands” on their convictions — ways to put their convictions into practice in serving the needy, caring for the sick, contributing to the renewal of their neighborhoods, or responding to disasters, disease, or poverty overseas. Putting religious convictions into practice is the heart of the “free exercise of religion” that is guaranteed by the First Amendment of the U.S. Constitution. So leaving faith-based organizations free to consider religion when hiring staff, whether or not a service will be funded by government, is a key instance of the First Amendment’s religious freedom, as applied to organizations.

The Basic Law

From the start of the nation, faith-based organizations have been free to staff with those of like-minded faith.

  • 1964 Civil Rights Act, Title VII (amended in 1972): it is legal for a religious organization to staff on a religious basis (Sec. 702(a) religious hiring exemption). Note: this does not extend to race, color, sex, or national origin.
  • This freedom applies to all positions within the religious organization.
  • U.S. Supreme Court was unanimous that this freedom is constitutional (Corporation of the Presiding Bishop v. Amos, 1987).
  • Title VII only applies to employers with 15 or more full-time employees.
  • States and many cities have their own human rights codes, most with a similar exemption.
  • Government funds: the religious staffing freedom is not waived simply because the religious organization receives government funds.
  • 1964 Civil Rights Act, Title VI, prohibits job discrimination in federally funded programs but does not specify religion as a prohibited basis, showing that Congress regarded religious selection as morally different than racial discrimination (see also Lown v. Salvation Army, 2005, federal district court for S.D.N.Y.: racial discrimination has no constitutional value but religious selectivity is a liberty often safeguarded by the First Amendment).
  • U.S. Supreme Court decisions hold that a religious group does not become a governmental actor subject to the restrictions placed on government merely by accepting government funds.
  • Lown v. Salvation Army explicitly held that religious hiring in government-funded programs neither waived the Title VII exemption nor violated the Establishment Clause.
  • Dodge v. Salvation Army, 1989, S.D. Miss., is an outlier that was noted but not followed by the federal court in Lown.


However, rules that apply in specific programs or jurisdictions may condition the religious staffing freedom in those programs or jurisdictions.

A. If a federal social service grant is received from a federal agency:

  1. A few programs include a requirement of no job discrimination, including on the basis of religion (e.g. Head Start, Workforce Investment Act, Juvenile Justice Programs).
    • The religious organization may appeal to the Religious Freedom Restoration Act (RFRA) or relief from this substantial burden on its religious exercise.
    • Arguably, the language protecting religious staffing in Charitable Choice overrides this restriction (Virginia and Texas, among others, revised state procurement language to permit religious staffing when the money is covered by Charitable Choice).
    • Thirteen states have their own state-level RFRAs.
  1. A few programs include Charitable Choice language, explicitly preserving the religious staffing freedom despite the receipt of federal funds (TANF, CSBG, SAMHSA).
  2. Most federal programs are silent about employment requirements, thus preserving the religious staffing freedom.

B. If the federal social service money goes first to a state or local government, which then awards the money to a private organization:

  1. Some states and cities require grantees or contractors (e.g., with 4 or more FTEs) to agree not to staff according to religion (and other criteria).
  1. Most states and cities do not have their own rule that adds a restriction on religious staffing when the federal funds have no such restriction.

C. Federal contracting (supplying goods and services such as submarines, research, and mops to the federal government): the job discrimination rules were originally created by Executive Order 11246; a Bush Executive Order (13279, Dec. 12, 2002) amended the rules so that faith-based organizations that staff on a religious basis (e.g., religious colleges, research centers, prison chaplains) can be federal contractors.

View the supplement.

Religious Hiring with Government Grant Funding

The 9th circuit federal appeals court on August 23, 2011 vindicated World Vision’s religious hiring policies (Spencer v. World Vision). Although World Vision is engaged in humanitarian work, it does its work as a religious organization, and thus is free under the law to consider religion in making employment decisions. This is an important decision for parachurch organizations.

In the case, several former employees, fired because they no longer followed World Vision’s religious commitments, had charged the organization with religious job discrimination, claiming that it was not a “religious organization” entitled to the religious hiring exemption of Title VII of the 1964 Civil Rights Act.

The appeals court, backing up the 2008 decision of the Seattle federal court, firmly disagreed with this novel theory. An organization can be humanitarian and religious at the same time. To be entitled to the exemption, it need not be a church nor be controlled by a church nor do only “religious” things. Rather, to qualify as a religious organization entitled to the religious exemption, an organization needs to show that that it is “organized for a self-identified religious purpose” as manifested in its foundational documents, is “engaged in activity consistent with, and in furtherance of” the religious purpose, and “holds itself out to the public as religious.”

The opinion affirms that, to be fulfilling a “religious purpose,” an organization need not confine itself to worship-like activities. Serving “secular” needs because of a divine calling is a valid religious purpose. Moreover, it can be a legitimate expression of an organization’s religious approach that it serves people of all or no faiths and that it refuses to force its religious views on those it serves.

In short: to be an organization legally able to select employees on a religious basis, a nonprofit organization must make clear its religious identity, manifest that identity in the way it operates, and tie its employment practices to its religious commitments.

All that is to the good. But the decision was 2-1, and the dissenting judge insisted that World Vision must be a secular, not a religious, organization, because it engages in humanitarian work and not in worship or religious teaching. That’s a cramped view of religion, of course: in Christian terms, it is as if Jesus had commanded his followers only to love God entirely–without adding that love for neighbors is equally important. Supporters of faith-based service in the world will have to keep making their case to the rest of society.

For more on “Why Religious Hiring” see the page linked below.

Equal Treatment Regulations

Religious Hiring

Pro-FBO Law & Policy


FBO Best Practices


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