Religious Organization's Right to Discriminate

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Can Religious Organizations Discriminate?

Title VII of the Civil Rights Act of 1964 generally prohibits any sort of employment discrimination based on sex, race, national origin, or religion.  However, there is a notable exception to the rule: Religious organizations are allowed to discriminate on the basis of their religion. This is in compliance with the right to free exercise of religion and is rooted in common sense (i.e. it would be ridiculous to force the Catholic Church to hire an atheist priest, or a Temple to hire a Christian Rabbi). 

But this exception does not just apply to those in ministerial roles. Churches and religious organizations generally have a broad exemption from religious discrimination, covering all their employees.  This means that a church, for instance, is allowed to hire only Christian janitors or gardeners, even though religion plays no fundamental part in their duties.  

What is a "Religious Organization?"

What qualifies as a "religious organization" is a somewhat gray area. Churches and mosques are easily classified as religions organizations, but institutions owned or managed by religious organizations are harder to classify. The Civil Rights Act specifically mentions religious "corporations, associations, educational institutions, or societies," but the law does not define "religious."

The key factors to consider are those that show the institution has a purpose which is primarily religious:

A court will look at all of its "religious and secular characteristics" on a case-by-case basis in making its determination. 

It is also important to note that the "religious organization exception" is limited to discrimination based on religion.  Religious organizations are generally not permitted to discriminate on other protected categories, such as race, national origin, or sex.

What is the Difference Between the "Right to Discriminate" and a BFOQ Defense?

BFOQ stands for "Bona Fide Occupational Qualification." BFOQ is used when religion, sex, or national origin is crucial to having a job position fulfilled. BFOQ is intended to be a very narrow defense, and is only successful if the religion, sex or national origin is intrinsically linked to the job. For instance, a documentary about an emperor of China would require an Asian male and the movie would not be believable if the actor for the role were anyone other than an Asian male.

The "right to discriminate," on the other hand, is much more expansive. The ability to discriminate does not require that religion be a central aspect of the job, only that the job be "connected" with the activities of the religion. In order to determine whether the "right to discriminate" applies, the nature of the employer is more important. In BFOQ defenses, however, the nature of the job is more at issue.

How Can an Attorney Help?

If you feel you have been discriminated against because of your religion or your lack of one, but are unsure as to whether your employer qualifies as a "religious organization," an experienced employment discrimination attorney will be of great help.  An attorney will be familiar with what sorts of organizations the courts have found exempt before, and how best to file your case.  Even if your employer is a religious organization, a good lawyer can possibly show that the discrimination against you wasn't solely based on religion, and keep the case moving forward. 

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Last Modified: 07-15-2013 12:14 PM PDT

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