Religious Hiring and Title VII’s Religious Exemption
May a religious group legally fire a non-ministerial employee (like a secretary or janitor) for violating the group’s religious beliefs about sex or marriage? As I explained yesterday, this is the question presented in a spate of recent cases and likely heading to the Supreme Court. It is also the question addressed in my forthcoming article in the Notre Dame Law Review, Religious Hiring Beyond the Ministerial Exception. In it, I set forth the arguments for and against six potential legal protections for the religious hiring of non-ministers.
In today’s post, I’ll make the case for what I believe is the most straightforward defense available in these cases: Title VII’s religious exemption. Under a plain reading of that exemption, religious groups have the right to limit hiring to employees who share their particular religious beliefs, observances, and practices—including their beliefs and practices about sex and marriage.
Title VII’s Text
Although Title VII prohibits sex discrimination in employment, it also includes a religious exemption: “This subchapter shall not apply … to a religious [organization] with respect to the employment of individuals of a particular religion…”
There are two competing interpretations of this exemption. Some courts interpret it narrowly to apply only when a plaintiff brings a claim of religious discrimination—not when a plaintiff brings a claim of sex, race, or national-origin discrimination. I call this the claim-based approach, because it focuses on the nature of the employee’s claim.
Other courts interpret the exemption more broadly to apply to any claim of discrimination where the religious organization has engaged in specific, exempted conduct—namely, employing individuals of a particular religion. I call this the conduct-based approach, because it focuses on the employer’s conduct rather than the employee’s claim. This approach, I argue, is more faithful to Title VII’s text.
The Textual Argument
Consider, for example, a case where a religious school dismisses a secretary for entering a same-sex marriage, and the secretary sues for sex discrimination. Does the religious exemption apply?
The textual argument for applying the exemption is simple.
First, the exemption provides that “[t]his subchapter shall not apply” to whomever and whatever falls within the exemption. The “subchapter” referenced is all of Title VII—not one subset of Title VII claims.
Next, the text identifies to whom Title VII shall not apply—”a religious [organization]”—and to what activity of a religious organization it shall not apply—”the employment of individuals of a particular religion.”
The key question then becomes: What does is it mean for a religious organization to employ “individuals of a particular religion”? On that question, Title VI
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
