CIVIL RIGHTS AND CIVIL WRONGS (The First Amendment cuts both ways)
by Lisa A. Runquist
WORKS, Vol. I, No. 3, August 1991.
Pastor Jones was puzzled. He had just gone to an employment seminar and found out that he couldn't discriminate against people because of their sex. He asked about discriminating against homosexuals and was told that this was also prohibited. How, he thought, could this be reconciled with the beliefs of his church? Doesn't the First Amendment to the constitution mean that the church could hire whomever it pleased?
Pastor Jones is justifiably confused. As he found out in the seminar, a church cannot discriminate on the basis of sex, marital status, national origin or other protected category. He can't refuse to hire someone because of his sex or national origin. But does this mean that the next associate pastor he hires must be a woman?
No. It's also true that the First Amendment allows a church to practice its religion freely. A church may not discriminate on the basis of such characteristics as sex, but it can discriminate on the basis of religion. For example, if the church firmly believes its pastors must be men, it isn't required to hire women as pastors. It may place other requirements on its employees as well, such as a requirement that all of its employees adhere to the church's religious beliefs and that they must be in good standing with the church. But each of these requirements must be based upon the religious beliefs of the church, not on any other type of discrimination.
So how can Pastor Jones screen applicants without violating the law?
The first thing he must do is define the firmly held religious beliefs of this church. this may be done by setting forth these beliefs in a specific document, or by reference to other documents. I recommend that the church have a written statement of faith for this purpose.
Secondly, he must make sure the potential employees know what the church believes. If the church expects each employee to adhere to them, potential employees should be furnished without the statement of faith, asked to sign a document that they accept and agree with it and understand that failure to live in accordance with the church's beliefs will be grounds for termination.
When employees violate these religious beliefs, Pastor Jones must see that appropriate action is taken, and that such action, in itself, is not discriminatory. For instance, if the church believes premarital sex is wrong, and it discharges a female employee for this reason but not the male employee, it's open to a charge of sex discrimination.
The church must hold that an action is in violation of its religious beliefs before disciplining an individual for it. For example, I was consulted by a church school that hadn't yet determined whether it could permit remarriage after divorce. But it wanted to be able to prohibit an employee from remarrying or to face termination upon remarriage. If they weren't sure what they believed, the it could not be a firmly held religious belief that would allow discharge.
Finally, Pastor Jones must make sure that any discrimination is based solely on religious beliefs. For example, paying medical insurance for families of full-time male employees but not for full-time female employees is likely to be found to be sex discrimination. In another common situation, both husband and wife provide services to the organization, but only the husband receives a salary and retirement benefits - even though the wife is required to provide services, and is prohibited from working for any other organization. When the husband dies, the wife finds she has received no credit for her twenty years of service. It's hard to explain this away on the basis of religious beliefs.
If Pastor Jones' church engages or has engaged in such activities, the next step is to consult with legal counsel as to the church's potential liability.