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Religious Institutions and Anti-Discrimination Laws

A recent decision from the Santa Ana division of the Fourth District Court of Appeal prompts a look at how the anti-discrimination laws apply to religious institutions. In Henry v. Red Hill Evangelical Lutheran Church of Tustin, No. G044556 (Dec. 9, 2011), the Court of Appeal affirmed the dismissal of a discrimination claim by a teacher at a church school who had been fired for living with her boyfriend and raising their child together without being married.The application of federal anti-discrimination laws to religious institutions is before the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553.

The applicable state law is the California Fair Employment and Housing Act. The applicable federal laws are Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. They deal with the issue in different ways.

The FEHA by its express terms does not apply to religious organizations at all. Under California Government Code section 12926(d), “‘Employer’ does not include a religious association or corporation not organized for private profit.” Section 12926.2 contains exceptions to the exclusion for those employed in religious health care facilities that do not limit their care to those of a particular religion (but not including those in executive or pastoral care positions) and those employed by a nonprofit public benefit corporations affiliated with a particular religion that operates an educational institution as its sole or primary activity. Otherwise, a church or other religious institution cannot be held liable under the FEHA no matter what the employee’s duties or what the basis for alleged discrimination. See, for example, Kelly v. Methodist Hospital of Southern California, 22 Cal.4th 1108, 997 P.2d 1169, 95 Cal.Rptr.2d 514 (2000) (age discrimination).

In contrast, the federal statutes allow religious organizations to give employment preference to members of their own religion, but otherwise prohibit employment discrimination. Thus, a Roman Catholic school may limit its hiring those of the Roman Catholic faith, but may not refuse to hire a Roman Catholic because of race, national origin, sex, or disability. The federal Courts of Appeals have also recognized a ministerial exception to application of the anti-discrimination laws based on the First Amendment. The EEOC has explained both principles in Questions and Answers: Religious Discrimination in the Workplace. In the Hosanna-Tabor Evangelical Lutheran Church and School case, the Supreme Court recognized the ministerial exception and applied it to bar a claim under the Americans with Disabilities Act.