Ever since federal civil rights law, in Title VII of the 1964 Civil Rights Act, prohibited religious and other forms of discrimination in hiring, it has simultaneously protected the freedom of religious organizations to consider religion when they hire. States and localities have similar protections for religious hiring. More recently, federal courts, culminating in action by the U.S. Supreme Court, have determined that, for constitutional reasons, there can be almost no government restrictions on the freedom of religious organizations to choose whomever they want as their key leaders and their religious teachers.
Title VII Exemption and Ministerial Exception
Exemptions & Exceptions
Title VII Exemption and Ministerial Exception
Title VII exemption. Title VII of the 1964 Civil Rights Act prohibits multiple varieties of job discrimination, including religious discrimination, by all but small companies and nonprofits. However, Title VII includes an exemption for religious organizations so that they can consider religion when they select their staff. Somewhat narrow to begin with, when Title VII was amended in 1972, the exemption was expanded to cover every job position in a religious organization—not only executives and counselors but also receptionists and groundskeepers. This expanded exemption, challenged as unconstitutional by a janitor in a Mormon health club, was unanimously upheld by the U.S. Supreme Court in Corporation of the Presiding Bishop v. Amos (1987). State and local employment laws have similar exemptions.
The exemption does not permit a religious organization simply to ignore Title VII’s nondiscrimination requirements. A faith-based school, for example, may not, due to bias, refuse to fairly consider a female candidate for the open position of principal. But a theological college associated with a Catholic teaching order may insist that faculty be male, as required by the Church’s theological teachings about qualifications for various ecclesiastical roles. The reason has to be not prejudice but the teachings of the religion, consistently applied.
Judges, government officials, and civil rights activists sometimes assert that the religious exemption only allows a religious employer to ask whether the job applicant is of the same religion, that is, claims to be a Catholic, or Muslim, or Hindu. This cannot be correct, for if the religious exemption is to be meaningful, a Catholic pregnancy clinic, for example, must be able to turn away a candidate who professes to be Catholic and yet is a pro-choice activist.
Teachings about sexuality and marriage are fundamental in many religious traditions. Faith-based organizations that share those any of those religions and their teachings believe that they must be allowed to assess sexual conduct, identities, and relationships if the religious exemption is to provide adequate protection. But when is an allegedly discriminatory hiring or firing decision a protected act of religious decision-making and when is it an illegal act of raw bias?
The question has become more complex and heated as governments have added to their employment law new bans on sexual orientation and gender identity discrimination. The U.S. Supreme Court brought that complication to every part of the United States when it declared in its 2020 decision in Bostock v. Clayton County that the prohibition of sex discrimination in Title VII is simultaneously a prohibition of employment discrimination on the bases of sexual orientation and gender identity. The Court specifically limited its ruling to secular employers and pointed out that the employment policies and practices of religious employers have legal and constitutional protections. However, it did not specify how those protections would apply with respect to alleged sexual orientation or gender identity discrimination.
However the law develops, it is certain every religious organization needs to ensure that its policies, practices, and documents manifest that it is a religious organization and that its employment decisions are based on the organization’s fundamental religious beliefs.
Ministerial exception. Federal judges and Supreme Court justices, over the past decade or so, have decided that the religion clauses of the First Amendment require a separate and additional protection for certain employment decisions made by religious organizations. This is the so-called “ministerial exception” which, however, applies to decisions about a range of positions in a religious organization, and not just to the hiring of ministers or other clergy. Its proper scope, however, is not completely settled. The U.S. Supreme Court rulings are Hosanna-Tabor v. EEOC (2012) and Our Lady of Guadalupe (2020).
The courts have reasoned that the freedom of religious exercise, and the freedom from government establishment or specification of religion, required by the First Amendment demands that government not interfere with a religious organization’s decisions about who should be their key religious leaders and their religious teachers. Not interfering means not applying at all in these instances any of the nondiscrimination requirements of civil rights employment law. If the organization is religious and the position is “ministerial,” then the nondiscrimination law simply does not apply at all.
However, many positions in a religious organization, even in a house of worship and seminary, are not in this sense “ministerial.” Yet, although employment decisions about these many other positions are not protected by the ministerial exception from second-guessing by the government, Title VII’s religious exemption does apply to them. Such employment decisions are not immune to governmental oversight but they are protected in law if they are made on the basis of the religious organization’s religious commitments.
Best practices for faith-based organizations. To be able to utilize the protections of either the Title VII exemption or the ministerial exception, a faith-based organization needs to adopt appropriate policies, practices, and documentation. The exemption and exception are protections for certain decisions of religious and not secular organizations, so it is important that the organization’s policies, practices, and publicly known identity reveal its religious character. And to be protected, the employment decisions should be notably religiously based and not made for reasons of bias or convenience or the like. The organization should have an employment policy, including job descriptions and employee manuals, that explains the religious qualifications for specific positions and the scriptural or theological bases for particular requirements. Job applications and performance reviews should stress religious factors as well as secular skills and other qualifications. And so on. See more in the Best Practices pages linked below.
Carl Esbeck, Stanley Carlson-Thies, and Ron Sider, The Freedom of Faith-Based Organizaions to Staff on a Religious Basis (Center for Public Justice, 2004).
“Major Religious Hiring Cases Since 2004” (dated 2015)
Stanley Carlson-Thies, “What are Faith-Based Employers to Do After the Bostock Decision?” (2020)
Richard Garnett, “Religious Schools and the Freedom of the Church” [on Hosanna-Tabor and Our Lady of Guadalupe], Law & Liberty blog, July 10, 2020.