How are religious organizations able to be EOEs?

A listserv I subscribe to for professional vacancies forwarded an advertisement for a position at Brigham Young University. The ad’s available online here and has the following statement:

I certainly have no problem with BYU giving precedence to Mormons- they’re founded and funded by the church and the church’s doctrines are a vital part of their philosophy, they’re private and any non-Mormon who goes there goes witht he understanding that they aren’t a secular institution. Same with any other church affiliated school of any religion. A Methodist Church hiring a pastor can hardly be sued for discrimination for requiring the person hired to be Methodist, after all, but since it’s discrimination no less I just assumed that they were not EOEs.

How can an employer discriminate based on religion and yet be an Equal Opportunity Employer? Is there a loophole?

Yes, there is a loophole, for pretty much the reasons you’ve stated, that allows religious organizations to discriminate based on religion. However, the EOE indicates that they are not discriminating on race, sex, disability and veteran status, and possibly other criteria. These types of discrimination are prohibited by federal law for organizations that meet certain criteria, and state law could impose other restrictions, such as sexual orientation.

Yes, there is an exception to Title VII for religiously-affiliated education institutions at 42 U.S.C. § 2000e-2(e)(2). Since they are an institution which is still required to be an EOE in all respects except religion, they continue to post the EOE notice.

Jinx!

Question: do religious institutions like BYU still get to utilize that loophole even if they accept federal funding?

42 USC 2000e-2(e)(2): it shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

I wonder- suppose that sexual orientation was included in federal and state non-discrimination for Utah (it isn’t, but hypothetically)- since one could not be openly and actively gay and in good standing with the LDS church, would that violate EOE status or would it still be included under the proviso? Or, for that matter, if a female ordained Southern Baptist minister was turned down by a church that no longer believes in the ordination of women, would that be discrimination?

IIRC, it depends on what kind of federal funding they receive. Loans funded by or guaranteed by the Federal gov’t are treated differently than gov’t grants, for example, in the requirements it places on a university.

W/R/T sexual orientation and non-ministerial positions, I think it would be prudent for the lawmakers to specify how to handle this when passing the law. They would need to say which organizations were subject to the law, and could either include or exclude religious organizations. I am not familiar enough with individual state laws to see if/how they do this. The religious organization would have a fairly decent legal argument that they are legally discriminating based on their religion, not sexual orientation itself. OTOH, that’s by no means a perfect argument. I think if the statute didn’t spell it out, courts could find either way.

W/R/T female ministers, that seems pretty well settled. The Catholics haven’t started ordaining women, the Southern Baptists stopped, etc. When hiring for these positions, it seems like “being ordained” is considered as a valid job requirement, even if it isn’t equally available to both sexes.

I don’t get the sense the government is much interested in telling religions who to ordain. The government is a little more interested in telling religous organizations, which can sometimes be significant local employers, how to hire for staff positions.

I am on a committee for a Southern Baptist church looking for a new pastor. We were being advised by a member of the conference, and I asked this very question.

He stated that we were exempt from the Civil Rights Laws because we were a nonprofit religious organization. As such, we can legally say that we will not hire female pastors, or that a person can only be a certain age (both big no-nos if we were, say, Wal-Mart)

The Age Discrimination in Employment Act only applies to organizations over 20 employees in industries that affect interstate commerce. So, while your church is likely exempt from this law, its non-profit and religious status are not the cause.

For that matter, the race and sex discrimination laws only affect employers of 15 or more engaged in interstate commerce.

Interstate commerce is usually interpreted very broadly for civil rights purposes, but I can see how a local church could be considered not to engage in interstate commerce. From what I understand, Baptist churches are usually very independent and the church actually employs the pastor. In the United Methodist church, there is a conference that employs pastors and assigns them to churches, so the conference is a larger employer. Similarly, the LDS and Christian Science church seem to be large organizations employing many in ministry and other functions.

Religious organizations can run afoul of civil rights laws. One noteworthy case I read about involves a nun who was dismissed when she got cancer, and sued under the Americans with Disabilities Act. Here’s a link to that case and more, if anyone’s interested (pdf) The employees aren’t always, or even often, winning, but the courts are not dismissing the possibility out of hand.

http://www.law.emory.edu/fileadmin/templates/CSLR_Media/PDFs/Henriques_-_In_God_s_Name_2.pdf

Let’s say I own a business that employs 11 people, and someone comes in to apply for a job. I can LEGALLY say, “I’m sorry, sir/ma’am, but we don’t hire blacks/whites/hispanics/whatever at this workplace”?

Is it 15 people AND affects interstate commerce or
15 people OR interstate commerce

Let’s face it, the interstate commerce thing is a joke. SCOTUS has famously held that a man growing wheat on his own property for his own personal use and not selling it is interstate commerce, because he would have otherwise bought the wheat in the interstate market. Same thing recently with medical marijuana. One would be hard pressed to argue that ANYTHING AT ALL is purely intrastate commerce. You named the activity, I will tell you how it affects interstate commerce…

But I was not aware of this “15 employee” rule.

I was on a search committee for a librarian once when the job description read “Must work Saturdays in rotation”. Our most qualified applicant told us at the interview she would not be able to do that for religious reasons, no exceptions- she could not work any Saturday.
Truth be known we didn’t want to hire her anyway because there were some eyebrow raising things on her resume’ and while her professional references were okay (hardly glowing) her unofficial but reliable grapevine references were “she is lazy and impossible to work with”, but before we offered the job to another candidate we had to consult with our lawyers to find out we weren’t opening ourselves to a potential lawsuit for religious discrimination. The university lawyer told us that because “weekend work required” was spelled out in the application, we were not liable, but had it not been we could have been, and had she been an existing employee told “You have to work Saturdays now” we would have been. He also told us of a case in Albany, GA, where a new waitress who was fired for refusing to serve meat sued on the basis that she was a [Wiccan? It was a New Agey religion] who believed “meat is murder”. (The place was a restaurant/nightclub and she mainly served drinks, but sometimes people would order chicken wings or other meat appetizers.) The court threw out the case saying that since she knew when she was hired that the restaurant, even the nightclub part, served meat, it was unreasonable for her to expect special exemption when almost all of the restaurant’s food orders, even in the lounge, involved meat- basically, she certainly had the right to abstain from meat, but an employer did not have to make allowance for her beliefs when doing so would essentially prevent the employee from doing 90% of her job and when there were abundant other jobs available that she could perform (i.e. it was not interfering with her right to make a living).