"Avoiding the Maelstrom?": Recent Developments in Religious Faith in the WorkplacePDF
Religious adherents literally take it on faith that religion impacts every aspect of life. Employers and employees, however, frequently are surprised – or at least unprepared – when religious issues arise in the workplace. Two significant decisions from U.S. circuit courts remind us of religion's prevalence in the workplace. They also provide significant legal guidance for addressing such issues.
In Penn v. New York Methodist Hospital, 884 F.3d 416 (2d Cir. 2018) (decided March 7, 2018), the 2nd Circuit (covering New York, Connecticut and Vermont) held that a secular hospital enjoyed immunity from any possible liability under Title VII and other discrimination laws under the "ministerial exception" when a former chaplain at the hospital claimed he had been fired because of his race. In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018) (also decided March 7, 2018), the 6th Circuit (covering Michigan, Tennessee, Ohio and Kentucky) held that Title VII's ban on sex discrimination protected a transgender woman. It also determined that the funeral home employing her could not avail itself of the ministerial exception and that it could not take advantage of the federal Religious Freedom Restoration Act as a defense, even though the funeral home owner maintained a legitimate religious objection to his employee's sexual status. The 6th Circuit determined that the owner's religious beliefs were not substantially burdened by "tolerating" instead of "endorsing" his employee's sexual status and that his beliefs could not override the importance of the EEOC enforcing anti-discrimination law under Title VII.
Background on the Ministerial Exception
Traditionally, civil courts have held that they have no business trying to apply anti-discrimination laws in the context of ministerial workers employed by religious institutions. This so-called "ministerial exception” prevents civil courts from getting hopelessly entangled with theological doctrine and religious decisions concerning pastors and ministers. See generally Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012). The exception typically makes sense, as it would be difficult for a civil court to determine, for example, whether a church fired a pastor because she did a poor job counseling parishioners, because she preached heretical doctrine, or because of her sex or race. In order to "avoid the maelstrom" of religious or theological issues that would be entwined with such decisions, our civil courts largely defer to the First Amendment of our Constitution and stay out of such religious disputes.
Some cases, however, present closer issues. Is the music teacher at the synagogue a minster? Is the orphanage founded by a religious order several hundred years ago still a religious institution when it now accepts tax dollars for the support of its charges? Typically, for an employment dispute to be resolved under the ministerial exception, it must be clear that the employee works in some type of ministerial capacity and that the employer is a religious institution.
A Secular Hospital Still Can Invoke the Ministerial Exception
In the Penn case in the 2nd Circuit, a hospital fired a chaplain. No dispute existed that the plaintiff chaplain was engaged in ministry, but the two sides clashed over whether the defendant hospital was a religious institution. In a split decision, the 2nd Circuit held the hospital was at least enough of a religious institution that the ministerial exception could apply to its chaplains. Even though the hospital was no longer affiliated with the United Methodist Church, its bylaws no longer required the hospital to seek permission from the UMC about significant business decisions nor gave the UMC the power to veto any amendment to the hospital's articles of incorporation, and the hospital's "Methodist identity" did not infuse its performance of its secular duties, the majority of the 2nd Circuit panel still held that the hospital continued to provide ministry through its Department of Pastoral Care (i.e., its chaplains), and that office by itself warranted coverage under the exception.
The majority specifically noted that the hospital's "Department of Pastoral Care required chaplains … to distribute Bibles, perform religious rituals and organize and conduct religious services, including Easter services and memorial services. … These services, while not limited to those who are Methodist, are indisputably religious." The majority refused to engage in a constitutionally suspect inquiry into the hospital's reasons for firing the chaplain because "[a]ny jury hearing [the chaplain's] employment discrimination and retaliation claims … would have to determine how a minister should conduct religious services or provide spiritual support." Under the ministerial exception, civil courts typically should engage in no such analysis.
In dissent, a single 2nd Circuit judge maintained that the hospital had long since ceased being a religious institution for any purpose. "The presence of a nonsectarian chaplaincy department cannot transform an otherwise secular hospital into a religious institution for purposes of the ministerial exception. If it could, most hospitals would be exempt from anti‐discrimination laws, as most – even clearly secular hospitals – have chaplaincy departments." This judge would have allowed the chaplain – just like any doctor, nurse or custodian at the hospital – to litigate his Title VII claims of discrimination and retaliation.
Background on RFRA
In 1990, the U.S. Supreme Court held that two Native Americans working as drug rehab counselors who ingested peyote as part of religious ceremonies in the Native American Church could be fired for illegal drug use. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990). The two Native Americans argued that the First Amendment protected their religious freedom to ingest the drug. The Supreme Court held, with Justice Antonin Scalia writing the opinion, that the First Amendment could not extend so far and that using a religious exemption in conflict of a valid, facially neutral law "would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind."
Public outcry and legislative response were quick. A near unanimous Congress passed RFRA in 1993. RFRA provides that "governments should not substantially burden religious exercise without compelling justification" and "the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests." In short, if a citizen – like an employer – contends that a federal law – like Title VII – substantially burdens the citizen's religious belief, then the government has to show a compelling government interest to enforce the law and that the law is "narrowly tailored" to be the "least restrictive means" for achieving that interest. Since 1993, RFRA has been determined to apply only to legal actions by the federal government, although some states have since passed their own versions of RFRA. South Carolina, for example, has one; North Carolina currently does not.
A Funeral Home is not a Religious Institution, and a Funeral Home Owner’s Religious Beliefs About Sexuality Do Not Trump the EEOC’s Duty to Enforce Title VII
In Harris Funeral Homes, the 6th Circuit addressed issues arising out of a funeral home firing a long-time employee after the employee announced that she was a transgender female and planned to present as a female at work. The funeral home owner testified directly that he fired the employee because "he [the employee] was no longer going to represent himself [sic] as a man. He [sic] wanted to dress as a woman." As initial matters, the 6th Circuit held that the firing was sexual discrimination for two reasons. First, the funeral home fired the employee because of "sexual stereotyping," which is illegal under Title VII. Second, the 6th Circuit joined other Courts of Appeal in holding that Title VII protects transgender persons and any transitioning status under the statute's clear language applying to "sex." The court held "it is analytically impossible to fire an employee based on that employee's status as a transgender person without being motivated, at least in part, by the employee's sex."
Harris Funeral Homes, however, presented additional religious issues. First, the funeral home tried to argue that it was a religious institution providing comfort to grieving families and that its funeral directors – like the transgender employee – were doing ministerial work such that the ministerial exception should apply. The 6th Circuit definitively said no. Initially, earlier in the litigation, the funeral home admitted that it was not a religious institution. Moreover, the court found that the defendant funeral home "has virtually no 'religious characteristics.' … [It] does not purport or seek to 'establish and advance' Christian values" and "is not affiliated with any church; its articles of incorporation do not avow any religious purpose; its employees are not required to hold any particular religious views; and it employs and serves individuals of all religions." The court also found that the transgender employee was not ministerial either because she performed entirely secular functions, was not trained or involved in ministry, and was not engaged in any religious practices in her job.
Second, the funeral home owner claimed that employing a transgender funeral director violated his religious beliefs and that RFRA should block the government – the EEOC here was bringing the lawsuit on behalf of the employee – from enforcing Title VII against his business. The business owner testified that he "sincerely believed that the Bible teaches that a person's sex is an immutable God-given gift." The funeral home maintained strict dress codes for men and women, and the owner expressed a belief "that authorizing or paying for a male funeral director to wear the uniform for female funeral directors would render him complicit 'in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.'"
Again, the 6th Circuit said no. The court accepted as sincere the owner's profession of his religious belief. The court, however, determined that the funeral home and its owner had failed to identify in any way how continuing to employ the transgender employee would substantially burden the employer's religious belief, which the owner said involved the funeral home's ability to serve mourners. Perhaps most significantly, the 6th Circuit rejected entirely the funeral home's argument that a burden might be placed on the owner's belief because mourners might be offended by the transgender employee's appearance. "[W]e hold as a matter of law that a religious claimant cannot rely on customers' presumed biases to establish a substantial burden under RFRA."
The 6th Circuit also rejected the funeral home owner's argument that his faith was burdened by having to accept the transgender employee wearing women's clothing at work. The court held that while the funeral home owner "may sincerely believe that, by retaining [the transgender] employee, he is supporting and endorsing [the employee's] views regarding the mutability of sex. But as a matter of law, bare compliance with Title VII – without actually assisting or facilitating [the employee's] transition efforts – does not amount to an endorsement of [the employee's] views." In short, tolerating something is not – at least for the 6th Circuit – the same as endorsing it, and toleration is not legally a burden.
Finally as to this argument, the 6th Circuit also issued a pretty ringing endorsement of both the EEOC's work and Title VII's protections. Specifically, the court found the EEOC's task of "eradicating employment discrimination" to be a compelling government interest. The court also found that Title VII and its history of enforcement since the 1960s represents the narrowly tailored, least restrictive means to advance that compelling interest. Simply put, an employer's religious belief cannot trump enforcement of our nation’s anti-discrimination laws any more than a person's religious beliefs about human sacrifice can trump our nation's murder laws. Here, the funeral home needs to respect both Title VII and the transgender employee and continue to employ her or suffer the payment of damages for failing to do so.
Learnings From the Two Cases
Initially, some employers should consider seriously whether they might qualify as religious institutions under Penn for purposes of the ministerial exception. A host of employers exist with both some type of religious heritage and an ongoing ministerial role for some portions of society. Employers like hospitals, nursing homes, schools, camps, retreat centers and social service entities across the nonprofit sphere at least should consider raising the ministerial exception in some contexts when specific employees bring Title VII or other discrimination claims. The dissenting judge in Penn raised the specter of some parts of completely secular employers (like public hospitals) getting the privilege of applying the ministerial exception for some employees, while the majority in Penn specifically reserved the question of whether the exception would apply to chaplains in a public hospital (or other institution) that was otherwise secular in origin. As the employer in Harris Funeral Homes learned to its detriment, not every business citing Scripture some of the time – or providing solace and comfort most of the time – qualifies for the ministerial exception. The defense, however, is certainly broader than many think and applicable in more situations than strictly ecclesiastical ones.
In addition, employers should be wary of assuming that their employees' actions need to comport with the employer's religious beliefs. RFRA remains a potentially strong defense against enforcement of some federal laws over a person's religious conscience. See Burwell v. Hobby Lobby Stores, Inc., 134, S. Ct. 2751 (2014) (holding that owners of a closely held corporation enjoyed RFRA protection against providing contraceptives to employees under Obamacare). Employers, however, need to be aware of holdings like the one in Harris Funeral Homes that make plain that discriminating in the workplace in the name of religious belief will not be tolerated under Title VII by the EEOC and the federal courts. In particular, Harris Funeral Homes severely undercuts any notion that employers can show a "burden" on their religious beliefs because of concerns about how customers might react to an employee's behavior that goes against the employer's own stated religious belief. In a fluid, transitional and at least sometimes uncertain period about whether Title VII already protects sexual orientation as well as gender (and transgender) status, employers are well advised to be careful before elevating a particular religious belief over the broader notion of toleration of others. Eradicating employment discrimination in all of the forms covered by Title VII remains a very compelling government interest. Title VII also apparently remains a narrowly tailored, least restrictive means for achieving that interest.
For more information regarding the ministerial exception, RFRA, or the Penn or Harris Funeral Homes decisions, please contact a member of Robinson Bradshaw's Employment and Labor Practice Group.