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.
The reason is because they have the right to free exercise of religion. It also has a basis in common sense. For instance, a Catholic school would want to hire Catholic nuns rather than atheists, and the same goes with priests, etc. This exception encompasses all employees of a religious organization, and not just those in the top tier.
Churches, mosques, and temples are easily identified as religious organizations, but the term itself is a little ambiguous in the eyes of the law. But the factors taken into consideration that show an institution’s primary purpose is a religious one, are:
- Articles of incorporation that state a religious purpose;
- Operating day to day with religion as a primary focus; and
- If it is a for-profit organization.
Courts will take these factors and an institution’s religious and secular characteristics on an individual basis. But most importantly, the religious organization exception is limited to religion-based discrimination. The religious organization cannot discriminate based on protected classes such as race, sex, or national origin.
What is the Difference Between the “Right to Discriminate” and a Bona Fide Occupational Qualification Defense?
A “BFOQ” stands for Bona Fide Occupational Qualification, and differs from the right to discriminate in that it allows an employer to discriminate based on religion, sex, or national origin if the position absolutely requires one of these protected classes. For instance, a women’s clothing designer may only hire female models because hiring male models would not make sense for the business.
An important distinction between the two, is that BFOQ is more narrowly defined as opposed to a religious organization’s right to discriminate. The former relates more to the job itself, whereas the latter focuses on the nature of the employer. There are times where it may overlap, for example a Catholic school can refuse to hire a non-Catholic teacher because it’s a Bona Fide Occupational Qualification (able to teach Catholicism) and the school retains the right to discriminate.
If you are dealing with a discrimination issue, contact an employment attorney immediately. Religious and BFOQ discrimination can quite often be a fine line with the law. An experienced lawyer will review your case, help you decide your best course of action, and represent your best interests in court.