Ohio Employment Discrimination Attorney Best Answer: Do religious employers have the right to discriminate against employees? Can I bring a gender discrimination or disability discrimination claim if my employer is a church? Does the diocese have to abide by age discrimination laws?
Like the answers to so many employment questions about discrimination and wrongful termination laws, the answers to the above questions are all, “It depends.” As our employment discrimination attorneys have blogged about in the past, employment discrimination claims involving churches and church-affiliated employers are frequently not as cut and dry as similar claims in a secular context. (See Top Employment Lawyer Reply: Can I Be Fired From A Religious Organization For Getting Fertilization Treatments?; Religious Discrimination: Can You Post Jobs Only On Church Bulletin?; and Sexual Harassment In Church).
When it comes to employment discrimination by a religious employer, one of the few easy calls relates to discrimination based on religion by a religious employer. Churches, schools, and other church-affiliated employers, whose “purpose and character are primarily religious” may discriminate against employees, and among applicants, based on religion. In fact, Section 702 of the Civil Rights Act of 1964 specifically exempts such employers from the religious discrimination prohibitions of the Act. A church can discriminate against its priest, janitor, secretary, landscaper, etc., provided that the discrimination is based on religion and is applied even-handedly. The exemption squares with Free Exercise Clause of the First Amendment and makes sense. I think that most people, even if they disagree with the exemption, can see its rationale.
A church is also generally free to discriminate against a “ministerial” employee, or applicant, on non-religious bases that would otherwise be prohibited. A few years ago, in Hosanna-Tabor v. EEOC, a unanimous United States Supreme Court held that both the, “Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.” That case was the first Supreme Court acknowledgment of the so called “ministerial exception,” which was long recognized among the lower courts. In Hosanna-Tabor, the Court announced that a church enjoys absolute freedom in deciding who is to lead it in carrying out its mission and that forcing a church to employ an unwanted minister, even if the minister is unwanted because of a discriminatory reason, is state intrusion upon a church’s free exercise.
In Hosanna-Tabor, the Court did not lay out a precise formula for determining which employees qualify under the ministerial exception but it did list a number of factors that should be considered. Among these factors are: (1) the formal title of the employee, (2) the substance reflected in that title, (3) the employee’s use of the title, and (4) the important religious functions performed by the employee. Clearly priests, rabbis, ministers, and other clergy are within the ministerial exception. Courts have also found teachers at religious schools and church music directors within the ministerial exception.
While Hosanna-Tabor dealt specifically with the ministerial exception in the context of a claim brought under the Americans with Disabilities Act, decisions of many lower courts make clear that the ministerial exception applies to other types of employment discrimination claims, including age and gender discrimination. A recent Sixth Circuit decision (Ohio) held that a “spiritual director” who was terminated by her employer, a Christian college ministry organization, because she got a divorce was precluded by the ministerial exception from bringing sex-based employment discrimination claims under Title VII and similar state laws.
While a church or church-affiliated employer may discriminate against any type of employee on a religious basis, and while a church or church-affiliated employer may discriminate against a “ministerial” employee on any basis, many church employees are still afforded protections of federal and Ohio anti-discrimination laws. For example, a church secretary does not fall within the ministerial exception and if subjected to sexual harassment she would be able to bring gender discrimination claims under Title VII and R.C. § 4112. Similarly, a religious school’s disabled custodian enjoys the protections afforded by the ADA and state law, just as an accountant at a Catholic college, who is wrongfully terminated based on age, may bring a claim under the ADEA and Ohio anti-discrimination law.
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