Freedom for Religious Hiring
In late 2020, the Washington Supreme Court greenlighted a lawsuit filed against Seattle’s Union Gospel Mission by a job applicant who was turned away after revealing plans to enter a same-sex marriage. More recently, a federal court in North Carolina decided an employment discrimination case in favor of a substitute teacher at a religious school, despite the school’s assertion that it fired the teacher for making social media posts expressing views contrary to its religious teachings.
Although threats to religious hiring are real, strong protections remain in place...
Hearing about these cases, you might become concerned that institutional religious freedom—in particular, the freedom to engage in religious hiring – is in jeopardy. Although threats to religious hiring are real, strong protections remain in place, and there are steps you can take as a Christian leader to maximize these protections.
To be clear, when we talk about religious hiring – specifically, Christian religious hiring – we mean the process of employing and retaining individuals who embrace your organization’s Christian beliefs, mission, values and standards. Done well, Christian religious hiring supports missional success, fosters a sense of belonging, presents a consistent witness, and maintains donor and stakeholder expectations.
Threats to Religious Hiring
There are a variety of threats to religious hiring, both legal and non-legal. On the non-legal side, Christian leaders report it is difficult to find talented workers who fit their organizations’ religious criteria, particularly in specialized fields. In addition, the apparent increase in polarization amongst Christians makes it difficult for leaders to maintain a spiritually unified workforce. Also, an organization whose Christian beliefs and values have eroded over time (or have never been defined at all) is unlikely to sustain its religious hiring.
There are a variety of threats to religious hiring, both legal and non-legal.
On the legal side, the focus of this article, the biggest threat to Christian religious hiring is the growing body of nondiscrimination laws at the federal, state, and local levels. In most jurisdictions, religious hiring (i.e., religious discrimination) is illegal, subject to certain exceptions. Moreover, the increase in laws prohibiting employment discrimination on the basis of sexual orientation and gender identity – including the expanded interpretation of Title VII as a result of the Supreme Court’s 2020 decision in the Bostock case – is in tension with many Christian organizations’ beliefs and standards regarding sexuality and marriage.
Is there a way forward?
Protections for Religious Hiring
The good news is that despite the legal threats, protections for religious hiring remain strong. Generally, these legal protections fall into two categories: constitutional protections and statutory protections.
Constitutional Protections
The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, . . . .”
In the context of religious hiring, courts have applied these words – and the related concept of “church autonomy” – to craft a judge-made doctrine known as the “ministerial exception.” This protection, though poorly named, dictates that secular courts can’t intervene in internal management decisions of religious institutions, including the selection and discharge of individuals in key roles. Where it applies, the ministerial exception offers broad protections; the doctrine can be raised against a wide range of employment-related claims under both federal and state law. (To be sure, case law remains limited as to whether the exception applies to claims that don’t relate directly to hiring and firing decisions, such as claims alleging harassment, defamation, underpayment, or breach of contract.)
In 2020, the Supreme Court strengthened and broadened the ministerial exception in a case called Our Lady of Guadalupe School. Employers may assert the ministerial exception with regard to employees who are not ordained ministers and with regard to employees who have no formal religious training. What matters is what the employee does, i.e., the role the employee plays in carrying out the organization’s religious mission. For some organizations, this means the ministerial exception may apply to a large portion of the workforce. Still, courts continue to reach different conclusions on whether certain categories of employees (such as Christian college professors) are covered by the doctrine.
Statutory Protections
Faith-based employers may also look to statutory, i.e., codified, exemptions in federal, state, and local nondiscrimination laws. Unfortunately, these statutory religious exemptions come in various shapes and sizes, creating confusion for religious employers who operate in multiple or overlapping jurisdictions. Worse, some of the broadest of these exemptions have come under attack, such as one in Washington recently gutted by the state’s Supreme Court.
Generally speaking, it’s undisputed that most of these statutory exemptions – including the one in Title VII – allow religious organizations to make employment decisions based on religious criteria (e.g., a Christian ministry can choose to hire only Christians), but how far does this go? Can a religious institution enforce its standards regarding sexuality and marriage, even if doing so implicates legally protected characteristics like sexual orientation? Courts have only just begun to address these issues, and the initial results are mixed.
Recommendations for Religious Hiring
As courts and legislatures continue to refine the legal protections for religious hiring, Christian nonprofits should take steps to maximize these protections. Each organization must develop its own approach to religious hiring. There’s no one-size-fits-all solution, but here are a few recommendations:
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Start now.
Despite some threats to Christian religious hiring, the practice is more important now than ever before. There won’t be a better time to clarify and strengthen your organization’s employment practices.
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Use the three-legged stool.
Remember that, as with all institutional policies and practices, your ministry’s approach to employment issues should be grounded on: 1.) Sincerely held religious beliefs, 2.) Clearly articulated, and 3.) Consistently applied.
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Create a Christian community policy.
Develop an overarching institutional policy that describes your organization as a Christian community where leaders and employees (and maybe even volunteers) aren’t just providing services, but are representing the community.
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Refresh organizational documents.
Avoid relying on assumptions and instead engage in a concerted effort to identify and articulate your ministry’s beliefs, standards, and expectations for employees. (They don’t need to be the same for everyone.) Update documents – like job descriptions and performance evaluation forms—to strengthen connections to the organization’s Christian mission.
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Focus on culture in recruiting.
Work hard to make your organization a place that naturally draws mission – and spiritually aligned individuals, recognizing that it may be impossible to remain attractive to everyone. Be open to the possibility of recruiting from new sources or schools, and even to relocating or embracing remote work arrangements to secure employees who “get it.”
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Review insurance policies and exclusions.
Talk to your insurance carriers about your mission and your hiring practices. Be mindful of some insurers’ attempts to limit coverages for certain claims – e.g., those alleging sexual orientation discrimination – a trend that could hinder your organization’s ability to mount a strong legal defense.
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Train and prepare your teams—internal and external.
Make sure your internal teams – including hiring managers, interviewers, etc. – understand and can properly articulate the organization’s positions and standards. These individuals should be equipped to respond with grace and truth, and with love and clarity, whenever issues arise. Identify and retain outside teams – a law firm, a public relations firm, etc. – that can get involved in the event of a dispute.
Thoughtfully applying these recommendations can help your organization establish a strong and sustainable approach to religious hiring, fostering institutional success without compromising the mission.
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John Melcon is an attorney in the religious organizations group at Sherman & Howard LLC, based in Colorado. He holds degrees from The Master’s University, Talbot School of Theology, and the University of Virginia. You can write to him at jmelcon@shermanhoward.com.
