Title VII, 42 U.S.C. § 2000e-2, prohibits discrimination based upon, among many other things, religion. That is, an employer cannot discriminate on the basis of religion in hiring, firing or the terms and conditions of employment.
Claims of religious discrimination are growing fast given the political, cultural and social conditions existing in this country today. Employees making requests such as for time off for religious observance, for the right to wear certain garb, hair styles and tattoos, and for the right to refuse to participate in certain medical procedures have proliferated – and under the existing law, employees must be accommodated unless an undue burden is placed on the employer.
Religion, however, is different from other bases of discrimination. There is an amendment to the United States Constitution, the First to be precise, which weighs in and essentially creates “a wall between Church and state” (although that “wall’ is currently under challenge by certain groups). This “wall” prohibits, or at least mightily discourages, state intervention in non-secular affairs.
Accordingly, there is an exemption from the religious anti-discrimination provision of Title VII provided to religious organizations, i.e., they are permitted to hire only those who subscribe to their religious beliefs. (However, religious organizations may still not discriminate on the basis of gender, race, or national origin). This exemption originally applied only to the religious or non-secular activities of the organization, so that, for example, the organization could not discriminate on the basis of religion against a receptionist who was uninvolved in the religious activities of the organization.
An amendment to the statute, however, made the exemption applicable even to the receptionist, irrespective of the nature of the activities or tasks performed, secular or non-secular. A court in 2000 held that the statute now means that an employer may fire an employee “whose conduct or religious beliefs are inconsistent with those of the employer.”
A recent federal appellate court’s wrestling with a difficult situation involving religion is illustrative of the cases which are now being seen. The court was faced with a nursing facility operated by a Catholic order which fired a nursing assistant whose religion (Church of the Brethren) prescribed that she wear “modest” clothes and a hair covering. The employer contended that the employee’s dress “made residents and their family members uncomfortable,” but the employee claimed that “her attire was a function of her religious beliefs and that she would not change it.” She was terminated.
The Court held that the firing was permissible under the statutory exemption described above, despite the employee’s claims of religious harassment and retaliation. Deciding specifically that the statutory exemption applied not only to hiring decisions but also to conditions of employment, the court quoted an earlier decision:
"Congress intended the explicit exemptions to Title VII to enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices, whether or not every individual plays a direct role in the organization’s 'religious activities.'"
The court also took note of the intent of the statute that the government not to become entangled in religion and religious disputes, a point made by the trial court, which feared a trial at which time it would have been likely that there would be competing testimony about religious beliefs – something the courts are loath to entertain.