Religion & Antidiscrimination Law
WEEK XII: STATUTORY DEFENSES
(A) Religious Institutions (Title VII)
1. Statutory Provisions (42 U.S.C.)
§2000e-1(a) This subchapter shall not apply to … a religious corporation, association,
educational institution, or society with respect to the employment of individuals of a particular
religion to perform work connected with the carrying on by such corporation, association,
educational institution, or society of its activities.
§2000e-1(e)(2) [I]t 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.
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2. What is a “Religious” Institution?
FELDSTEIN v. The CHRISTIAN SCIENCE MONITOR
555 F. Supp. 974 (D. Mass. 1983)
MAZZONE, District Judge. This matter arises from a suit brought under Title VII …
by the plaintiff, Mark Feldstein, against the defendants, the Christian Science Monitor
(the Monitor), the First Church of Christ, Scientist (the Church), and the Christian
Science Publishing Society (the Publishing Society). The matter is before the Court on
defendants’ motion for summary judgment [, which claims] that the Monitor is a religious
activity of a religious organization and is therefore entitled to discriminate in its
employment practices in favor of co-religionists….
The undisputed facts in the case are as follows. In January of 1979, Feldstein
inquired at the Monitor whether there would be job openings on its news reporting staff
upon his graduation from college in June. At that time, Feldstein was a college student
interested in pursuing a career in journalism. Upon making his inquiry, Feldstein was
instructed to contact the Personnel Department of the Church, where he was asked if he
was a member of the Christian Scientist Church. He indicated that he was not, and was
informed that he would stand little, if any, chance of becoming employed by the Monitor
as a reporter, as only Christian Scientists were hired except in the rare circumstance that
no qualified member of the Church was available. Feldstein nevertheless requested and
obtained an employment application for a reporter’s position.
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The employment application, used for positions throughout the Church, contains
several questions relating to religious practice, including “Are you ... a member of the
Mother Church? A branch Church member? Class taught?”; “Are you free from the use
of liquor, tobacco, drugs, medicine?”; “Do you subscribe to the Christian Science
periodicals?”; “Are you a daily student of the lesson-sermon?”; and inquiries directed to
the applicant’s present and past religious affiliation. References are sought from “two
Christian Scientists who can comment on your character and your practice of Christian
Science.” The application closes with the following statement:
The First Church of Christ, Scientist, may by law apply the test of religious qualifications
to its employment policies. Those who meet this requirement and are otherwise qualified
will be hired, promoted and transferred without regard to their race, national origin, sex,
color or age.
Feldstein filed his application with the Church in March of 1979, together with a
copy of his curriculum vitae, letters of recommendation, and a portfolio of newspaper
articles that he had written. In April, he was notified by a Church Personnel
Representative that his application for employment as a reporter had been rejected.
Feldstein has alleged, and the record would seem to support, that his application for
employment was not given a full consideration because he was not a Christian Scientist.
Title VII of the Civil Rights Act of 1964 was originally passed as an expression
of Congress’ laudable intention to eliminate all forms of unjustified discrimination in
employment, whether such discrimination be based on race, color, religion, sex, or
national origin. This posed a sharp question under the Establishment Clause of the First
Amendment to the United States Constitution as to whether Congress could properly
regulate the employment practices, and specifically the preference for co-religionists, of
religious organizations in matters related to their religious activities. As a result, the
original Title VII contained an exemption from the operation of Title VII’s proscriptions
with respect to the employment of co-religionists to perform work related to the
employer’s religious activity. Church-affiliated educational institutions were also
permitted to hire on the basis of religion.
In 1972, a number of amendments to Title VII were proposed in an effort to alter
and expand the existing exemption for religious organizations. The most sweeping of
these, introduced by Senator Sam Ervin, proposed to remove religious organizations
entirely from the requirements of Title VII. Concern was expressed by Senator Ervin that
unless the amendment was passed, an unconstitutional encroachment on the operations of
religious organizations by the government would result:
It is impossible to separate the religious and non-religious activities of a religious
corporation or religious association or religious educational institution or religious
society from its other activities ... Congress does not keep the states-that is, the
Government’s-hands out of religion by enacting a bill which says that the Government
can regulate and control the employment practices of all of the religious groups in this
country ... in respect to all of their employees who are not strictly engaged in carrying out
the religious affairs of those institutions.
Legislative History of the Equal Employment Opportunity Act of 1972, 1212 and 1223
(1972).
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Of the two goals initially sought by Senator Ervin and others in the efforts to
amend the religious organization exemption in Title VII-permitting religious
organizations to discriminate in employment on any grounds, and not merely on the basis
of religion; and expanding the exemption to include non-religious as well as religious
activities of religious groups-only one was ultimately achieved. Title VII was amended to
eliminate the qualification that only religious activities of religious organizations would
be exempt from suit based on religious discrimination. …
… It is self-evident, as well as uncontested, that the First Church of Christ,
Scientist is a religious organization. The status of the Christian Science Publishing
Society and of the Monitor is less clear. The plaintiff has argued that the Monitor is a
highly regarded and impartial newspaper carrying news stories, articles, features,
columns and editorials that are secular in nature and content. The defendants take
exception to this characterization of the Monitor and make reference to a number of facts
in support of their position that the newspaper is a religious activity of a religious
organization and therefore exempt from regulation under Title VII.
According to the uncontroverted affidavit of Michael West, Treasurer of the
Christian Science Church and Trustee of the Christian Science Publishing Society, the
Monitor is published by the Christian Science Publishing Society, an organ of the
Christian Science Church. Both the Publishing Society and the Monitor were founded by
Mary Baker Eddy, the founder of the Christian Science faith. The deed of trust of the
Publishing Society declares as its purpose “more effectually promoting and extending the
religion of Christian Science.” According to the by-laws of the Church, it is the “privilege
and duty” of every member of the Church to subscribe to periodicals published by the
Church, including the Monitor. The Board of Trustees of the Church is directed to
“conduct the business of the Christian Science Publishing Society on a strictly Christian
basis, for the promotion of the interests of Christian Science.” The Board of Directors of
the Church is charged with the duty to keep Church periodicals “ably edited and ...
abreast of the times,” and elects the editors and manager of the Publishing Society. The
by-laws specifically provide that no-one who is not acceptable to the Board shall in any
manner be connected with the publishing efforts of the Church. The Board of Directors is
responsible for the editorial content of the Monitor and review on a daily basis material
appearing in the Monitor.
The Church organization is also involved with the operation of the Monitor in a
financial capacity. The by-laws require that the Church provide a “suitable building” for
the Monitor’s operations. The Church routinely subsidizes the Monitor, which otherwise
would run at a significant loss. The Monitor elects, on religious grounds, not to carry
advertisements for a number of products, including liquor, tobacco, drugs, medicines,
vitamins, and energy stimulants. Advertising policy is formulated in part by Monitor
Advertising Information Committees appointed by the Publishing Society on
recommendation of local branch churches. Circulation is developed through Christian
Science Reading Rooms, and by Church members who act without compensation as
circulation representatives. …The plaintiff does not contest that the Christian Science
Church is intimately involved with the management, the day-to-day operations and the
financial affairs of the Monitor. …
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Numerous administrative bodies have considered the status of the Monitor and
have determined that it is a religious activity, including the Equal Employment
Opportunity Commission (finding it had no jurisdiction over the Monitor), the Internal
Revenue Service (finding in 1977 that the Monitor is “merely a department of the First
Church of Christ, Scientist” and in 1955 that the Publishing Society is “operated
exclusively for religious purposes”), the Department of National Revenue of Canada, the
state income tax administrators for Illinois and Massachusetts, and the District of
Columbia unemployment compensation board. The District of Columbia board noted:
The question has been raised as to whether or not the operation of the Christian
Science Monitor should unclass the Society as an exclusively religious organization.
From the information submitted it would appear that the primary purpose of the Monitor
is a missionary one to try and interest individuals in Christian Science. In addition, the
Monitor carries a religious message each day. It is believed, that as its primary purpose is
religious, that any other purpose would appear purely ... ancillary.
Certainly it is true that “not every enterprise cloaking itself in the name of religion
can claim the Constitutional protection conferred by that status.” Van Schaick v. Church
of Scientology of California, Inc., 535 F.Supp. 1125, 1144 (D.Mass.1982) quoting
Founding Church of Scientology v. United States, 409 F.2d 1146, 1160 (D.C.Cir.1969).
Similarly, not every endeavour that is affiliated, however tenuously, with a recognized
religious body may qualify as a religious activity of that body and come within the scope
of the protection from governmental involvement that is afforded by the First
Amendment. At the same time, however, a religious activity of a religious organization
does not lose that special status merely because it holds some interest for persons not
members of the faith, or occupies a position of respect in the secular world at large.
Though “the ‘wall between church and state’ is not absolute,” Members of the Jamestown
School Committee, et al. v. Schmidt, 699 F.2d 1 at 14 (1st Cir.1983) (Breyer, J.
concurring), quoting Everson v. Board of Education, 330 U.S. 1, 18, 67 S.Ct. 504, 512,
91 L.Ed. 711 (1947), I am nevertheless unwilling to involve the federal court in what is
ultimately an internal administrative matter of a religious activity.
While fully crediting the plaintiff’s statements that the Monitor holds itself out as
an objective and unbiased reporter of world news and events, I cannot ignore the close
and significant relationship existing between the Christian Science Church, the
Publishing Society and the Monitor; or the declared purpose, both at the time of its
founding and until the present, of the Monitor to promulgate and advance the tenents of
Christian Science. I find the conclusion inescapable that the Monitor is itself a religious
activity of a religious organization, albeit one with a recognized position and an
established reputation in the secular community. …
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XII 4
Fike v. United Methodist Children’s Home of Virginia
547 F.Supp. 286 (E.D.Va. 1982)
WARRINER, District Judge.
I. INTRODUCTION. On 21 November 1979, plaintiff filed a complaint alleging that
defendant United Methodist Children’s Home dismissed him as director because he was a
Methodist layman and the Home desired a Methodist minister in the position. …
II. FACTS. Defendant Home has historically been a home for orphans or for children
whose parents were unable to take care of them. The Home was founded by and over the
years has had close ties with the Methodist Church. Most of the children had been placed
in the Home from private sources through Church auspices. Prior to plaintiff’s
appointment, all directors of the Home had been ordained Methodist ministers. In the
1970s, the need for an orphans’ home diminished. Therefore, the Board of Trustees
adopted a shift in its policy and in its program. A new type of youngster, the older child
who had gotten into trouble with the law or was having difficulty at home, was seen as in
need of institutional services. This type of youngster was often referred by various public
agencies dealing with youths. Plaintiff was hired on or about 1 July 1974 to develop this
program. The Board directed plaintiff to develop contacts with public agencies serving
troubled youths-local welfare departments, juvenile courts, the State Department of
Corrections-and to solicit referrals.
During the period that plaintiff was director of the Home, the number of children
in the Home placed by the State increased. Pursuant to contracts between the Home and
government agencies, the Home received funds from the State to pay for the services and
care provided the children. The Home was subject to regulations by the agencies placing
the children.
Because of these dramatic changes in the mission, operation, and conduct of the
Home, criticism began to develop within the United Methodist Church that the Home was
moving in a non-sectarian direction. Thus, in 1978, the governing body of the Church
recommended that plaintiff be dismissed and that a Methodist minister be hired as
director in order to bring the Home back to the Church structure. On or about 30
November 1978, in pursuance of this reconversion plaintiff was dismissed.
III. TITLE VII. Plaintiff alleges that his dismissal violates the Title VII prohibition
against religious discrimination…. Defendant argues that it is exempt from this provision
of Title VII pursuant to 42 U.S.C. §2000e-1…
Plaintiff alleges that while defendant Home publicly holds itself out as a sectarian
organization and, in fact, seeks to promote religion in various of its activities and to
maintain certain contacts with the United Methodist Church, it is not a bona fide
“religious organization” under §2000e-1. Plaintiff argues that for purposes of §2000e-1
defendant Home is a secular organization.
Defendant argues that the Home is an integral part of the United Methodist
Church in Virginia. It was originally organized to carry on the Church’s function of
caring, supporting, and nurturing children and inculcating in them the Christian beliefs
and tenets. During plaintiff’s tenure, the Board of Trustees of the Home drafted a
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“statement of church relatedness” to pronounce officially its ties with the Church.
Trustees of the Home must be confirmed by the Virginia Methodist Annual Conference.
A trustee must be a member in good standing of the Methodist Church.
In rebuttal, plaintiff argues that although members of the Board of Trustees must
be members of the Methodist church, the Board operates separately from the Church
itself and is an independent corporation. Plaintiff asserts that while the Home may have
operated as a sectarian organization in its early years, this course was wholly abandoned
during plaintiff’s administration. Additionally, plaintiff contends, evidence that defendant
may be attempting at this time to regain its nature as a sectarian organization is irrelevant
in determining the nature of the Home at the time of plaintiff’s dismissal.
Defendant admits that the chapel is no longer used for religious services. In fact,
no religious services have been held on the campus since 1978. Aside from a painting of
the Bishop in the administration building, there are no religious symbols whatsoever in
the cottages or anywhere else on the campus. While a Bible may be provided to any child
who specifically requests it, Bibles are not provided to each child and are not placed in
each cottage; while a chaplain is on the staff, the chaplain never engages in Bible study or
prayer groups. In fact, such instruction in theology as is conducted by the chaplain
involves various perspectives and concepts, including without any normative teaching,
atheism. Attendance at religious services is not encouraged and is purely voluntary.
Indeed, in light of the affidavits of responsible officials of the Home filed in this case, it
would appear that the incumbent chaplain is indifferent to the Christian religion. Plaintiff
argues that defendant has tried to serve God and mammon by representing to the Church
its sectarian nature and representing to the government its secular nature. There is merit
in this contention.
There is little precedent on the meaning of “religious corporation” under §2000e1. In McClure v. Salvation Army, 323 F.Supp. 1100 (N.D.Ga.1971), aff’d, 460 F.2d 553
(5th Cir. 1972), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972). The
Court held that the Salvation Army is a religious corporation within the meaning of
§2000e-1. The decision was based on an analysis of the various branches of the
organization, each established for the purpose of disseminating the Christian gospel and
developing the Christian life. The Court noted, “The original mission of the Salvation
Army has remained unchanged. It is to seek the unsaved, (and) to secure the commitment
of those who are determined to live a Christian life....” Id. at 1102.
While the original mission of the United Methodist Children’s Home may have
been to provide a Christian home for orphans and other children, that mission has not
remained unchanged. The facts show that as far as the direction given the day-to-day life
for the children at the Home is concerned, it is practically devoid of religious content or
training, as such. While the purpose of caring for and providing guidance for troubled
youths is no doubt an admirable and a charitable one, it is not necessarily a religious one.
For an organization to be considered “religious” requires something more than a board of
trustees who are members of a church. The Court, therefore, holds that for the purposes
of the exemption in §2000e-1 the United Methodist Children’s Home is, quite literally,
Methodist only in name. It is a secular organization.
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[Although] the Title VII prohibition against religious discrimination applies in
this case, … plaintiff has failed to state a claim of religious discrimination. … [P]laintiff
has not alleged that he was dismissed because he is a Methodist; rather, he alleges that he
was dismissed because he is not a minister. … “The difference between their respective
status as laymen or minister is not a religious difference.” …
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EEOC v. Townley Engineering & Mfg. Co.
859 F.2d 610 (9th Cir. 1988)
[The facts and the rest of the legal analysis of this case are in the materials for Week 9
beginning at IX-20.]
B. The “Religious Corporation” Exemption of Section 702. Townley next argues that it
is a “religious corporation” exempt from Title VII by the terms of section 702, which
states in part:
This subchapter shall not apply ... to a religious corporation, association, educational
institution, or society with respect to the employment of individuals of a particular
religion to perform work connected with the carrying on by such corporation, association,
educational institution, or society of its activities.
42 U.S.C. Sec. 2000e-1. The district court rejected this argument, as do we.
A brief review of the relevant legislative history is necessary. In 1963, the House
Judiciary Committee drafted H.R. 7152, the bill which was the basis of much of the Civil
Rights Act of 1964. Title VII of the bill included a section that stated the title would not
apply to a “religious corporation, association, or society.” The committee report
accompanying the bill did not elaborate on the section. However, the section was the
subject of some debate in the House after Representative Purcell proposed amending
H.R. 7152 to allow an educational institution to discriminate on the basis of religion if the
institution was wholly or partly supported or managed “by a particular religion or by a
particular religious corporation, association, or society,” or if the institution’s curriculum
was “directed toward the propagation of a particular religion.” EEOC Legislative History
of Titles VII and XI of the Civil Rights Act of 1964, at 3197 (1968).
The debate on this proposal is relevant because an issue in the debate was whether
such institutions were already protected by the “religious corporation” exemption. The
consensus was that they were not protected if they were merely “affiliated” with a
religious organization. For example, Representative Celler, the chairman of the Judiciary
Committee and one of the drafters of the bill, was asked whether a church-supported
orphanage would already be covered by the bill. He said, “If it is a wholly church
supported organization, that is, a religious corporation that comes under [then] section
703.” Id. at 3204 (emphasis added). This coverage was considered too narrow, and the
House passed the proposed amendment.
Although this debate is far from comprehensive, it is the only useful legislative
history we have on this section. Section 702 was amended by the Senate in 1964, and
amended again by Congress in 1972, but the debate on the amendments sheds no more
light on the definition of religious corporations.12 The debate over Representative
Purcell’s amendment does indicate, however, that Congress’s conception of the scope of
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section 702 was not a broad one. All assumed that only those institutions with extremely
close ties to organized religions would be covered. Churches, and entities similar to
churches, were the paradigm.
12
In the Senate, Senators Dirksen, Mansfield, Humphrey, and Kuchel drafted a substitute bill for
the House bill. The substitute bill changed section 702 in two ways, both of which were adopted
in the final draft of the Civil Rights Act. In the words of Senator Humphrey, who presented the
bill to the Senate, the section
was amended to limit the general exemption of religious groups to those practices relating to the
employment of individuals of a particular religion to perform work connected with the employer's
religious activities, and to extend the exemption to private educational institutions with respect to
the employment of individuals to perform work connected with the educational activities of such
institutions.
Legislative History, supra, at 3004.
The Equal Opportunity Act of 1972 changed section 702 to its present form. First, it deleted the
clause exempting all educational institutions, and included educational institutions among the
religious organizations listed in the section. Second, it amended the section to allow the
organizations to discriminate on the basis of religion with respect to all their activities, not just
their religious ones.
As the district court noted, the case law on this question is not very helpful. In
most cases, the defendant is clearly a “religious corporation, association, educational
institution, or society” within the meaning of section 702 of the statute. See, e.g., EEOC
v. Fremont Christian School, 781 F.2d 1362, 1364 (9th Cir.1986) (defendant was “private
educational institution ... wholly owned and operated by the Assembly of God church”);
EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272, 1274 (9th Cir.1982) (defendant
was “nonprofit corporation ... affiliated with the Seventh-Day Adventist Church”
engaged in publishing “religiously oriented material”); Rayburn v. General Conference of
Seventh-Day Adventists, 772 F.2d 1164, 1164-65 (4th Cir.1985), cert. denied, 478 U.S.
1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986) (defendant was church); EEOC v.
Mississippi College, 626 F.2d 477, 478 (5th Cir.1980), cert. denied, 453 U.S. 912, 101
S.Ct. 3143, 69 L.Ed.2d 994 (1981) (defendant was college owned and operated by
convention of Southern Baptist churches). These cases, like the legislative history,
demonstrate that the central function of section 702 has been to exempt churches,
synagogues, and the like, and organizations closely affiliated with those entities.13
13
Of course, even without section 702, the First Amendment would limit Title VII's ability to
regulate the employment relationships within churches and similar organizations. See Kedroff v.
St. Nicholas Cathedral, 344 U.S. 94, 107, 73 S.Ct. 143, 150, 97 L.Ed. 120 (1952); McClure v.
Salvation Army, 460 F.2d 553, 558-61 (5th Cir.1972)
At least one case has tested the limits of this exemption. In Fike v. United
Methodist Children’s Home, 547 F.Supp. 286 (E.D.Va.1982), aff’d, 709 F.2d 284 (4th
Cir.1983), the plaintiff alleged that the Children’s Home dismissed him from his position
as director because it wanted a Methodist minister in the position. The court found that
the Children’s Home “was founded by and over the years has had close ties with the
Methodist Church.” Id. at 288. The Methodist Church became worried that the Home was
XII 8
becoming too secular, and as a result recommended that the Home hire a Methodist
minister as director “in order to bring the Home back to the Church structure.” Id. at 289.
Despite these facts, the court refused to find that the Home was a “religious corporation”
within the meaning of section 702. After examining the purported religious and secular
characteristics of the Home at length, id. at 289-90, the court stated:
While the original mission of the United Methodist Children’s Home may have been to
provide a Christian home for orphans and other children, that mission has not remained
unchanged. The facts show that as far as the direction given the day-to-day life for the
children is concerned, it is practically devoid of religious content or training, as such.
While the purpose of caring for and providing guidance for troubled youths is no doubt
an admirable and charitable one, it is not necessarily a religious one. For an organization
to be considered “religious” requires something more than a board of trustees who are
members of a church. The Court, therefore, holds that for the purposes of the exemption
in Sec. 2000e-1 the United Methodist Children’s Home is, quite literally, Methodist only
in name. It is a secular organization.
Id. at 290.
Like the Fike court, we shall not attempt to outline section 702’s precise scope.
The effort to do so would fail. Rather, each case must turn on its own facts. All
significant religious and secular characteristics must be weighed to determine whether the
corporation’s purpose and character are primarily religious. Only when that is the case
will the corporation be able to avail itself of the exemption.
Townley and the EEOC do not dispute the “primarily religious” standard. They
differ over whether Townley is primarily religious or secular. On the secular side, the
company is for profit. It produces mining equipment, an admittedly secular product. It is
not affiliated with or supported by a church. Its articles of incorporation do not mention
any religious purpose. Against these elements are the facts that Townley encloses Gospel
tracts in its outgoing mail, prints Bible verses on its commercial documents (such as
invoices and purchase orders), financially supports churches, missionaries, a prison
ministry, and Christian radio broadcasts, and, of course, conducts a weekly devotional
service. Underlying these facts, of course, is “the discipleship Jake and Helen Townley
have for the Lord Jesus Christ.”
When viewed together, we have no difficulty in holding that these characteristics
indicate that Townley is primarily secular. We do not question the sincerity of the
religious beliefs of the owners of Townley. Nor do we question that they regard the
conduct of their company as subject to a compact with God. We merely hold that the
beliefs of the owners and operators of a corporation are simply not enough in themselves
to make the corporation “religious” within the meaning of section 702. We therefore
agree with the district court that Townley is not exempt under section 702 from Title
VII’s prohibition against religious discrimination.
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E.E.O.C. v. Kamehameha Schools/Bishop Estate
990 F.2d 458 (9th Cir. 1993)
JAMES R. BROWNING, Circuit Judge:
I. Overview. Bernice Pauahi Bishop was a member of the Hawaiian royal family and, at
the time of her death in 1884, the largest landowner in Hawaii. Mrs. Bishop’s will
provided that the bulk of her estate should be placed in a charitable trust “to erect and
maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for
boys and one for girls, to be known as, and called the Kamehameha Schools.” Mrs.
Bishop’s will also directed that “the teachers of said schools shall forever be persons of
the Protestant religion.” FN1
FN1. The provision reads:
I give, devise and bequeath all of the rest, residue and remainder of my estate ... unto the trustees
below named ... to erect and maintain in the Hawaiian Islands two schools, each for boarding and
day scholars, one for boys and one for girls, to be known as, and called the Kamehameha
Schools.... I direct my trustees ... to expend the annual income in the maintenance of said schools
... and to devote a portion of each year’s income to the support and education of orphans, and
others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal
blood.... I desire my trustees to provide first and chiefly a good education in the common English
branches, and also instruction in morals and in such useful knowledge as may tend to make good
and industrious men and women; and I desire instruction in the higher branches to be subsidiary to
the foregoing objects.... I also give unto my said trustees full power to make all such rules and
regulations as they may deem necessary for the government of said schools and to regulate the
admission of pupils.... I also direct that the teachers of said schools shall forever be persons of the
Protestant religion, but I do not intend that the choice be restricted to persons of any particular sect
of Protestants.
Carole Edgerton, who is not a Protestant, contacted the Schools to apply for an
advertised position as a substitute French teacher. Edgerton was informed of the
Protestant-only requirement and filed a charge of religious discrimination with EEOC.
EEOC attempted conciliation, but the Schools informed the Commission they were
bound by Mrs. Bishop’s will.
EEOC filed suit, alleging religious discrimination in employment in violation of
[Title VII]. The Schools conceded Mrs. Bishop’s will requires discrimination in
employment contrary to §2000e-2(a)(1), but sought to bring themselves within three
exemptions provided elsewhere in the Act:
(1) § 2000e-1, which provides that the equal employment provisions of the Act do not
apply to employment by a “religious ... educational institution” of individuals of a
particular religion to carry on its activities;
(2) § 2000e-2(e)(1), which provides that “it shall not be an unlawful employment
practice for an employer to hire and employ employees ... on the basis of [ ] religion”
if religion is “a bona fide occupational qualification reasonably necessary to the
normal operation of that particular business or enterprise;” and
(3) § 2000e-2(e)(2), which provides that “it shall not be an unlawful employment
practice for a school ... to hire and employ employees of a particular religion ... if the
curriculum of such school ... is directed toward the propagation of a particular
religion.”
XII 10
The parties agreed to litigate the applicability of the three exceptions before
considering the merits of Edgerton’s claim. EEOC and the Schools filed cross-motions
for summary judgment. The district court found the Schools exempt on all three grounds.
EEOC v. Kamehameha Schools/Bishop Estate, 780 F.Supp. 1317 (D.Haw.1991). …
We construe the statutory exemptions narrowly, Korherr v. Bumb, 262 F.2d 157,
162 (9th Cir.1958), and the Schools bear the burden of proving they are exempt, see
United States v. First City Nat’l Bank, 386 U.S. 361, 366, 87 S.Ct. 1088, 1092, 18
L.Ed.2d 151 (1967) (party seeking benefit of exemption from statute bears burden of
proof); EEOC v. Boeing Co., 843 F.2d 1213, 1214 (9th Cir.1988) (party seeking benefit
of bona fide occupational qualification exception bears burden of proof).
We conclude the Schools failed to establish their entitlement to any of the three
exemptions claimed, and reverse.
II. Exemption for Religious Educational Institutions. The district court weighed the
religious characteristics of the Schools against their secular characteristics and concluded
the Schools were exempt under §2000e-1 as religious educational institutions because the
purpose and character of the Schools is primarily religious. In applying § 2000e-1 the
district court adopted the approach approved by this court in Townley, 859 F.2d at 618, of
weighing “[a]ll significant religious and secular characteristics ... to determine whether
the corporation’s purpose and character are primarily religious.” We reaffirm that
approach. We differ from the district court only in evaluating the facts of this case in light
of Congress’ intention as to the scope of the exemption for religious organizations. …
The ownership and affiliation, purpose, faculty, student body, student activities,
and curriculum of the Schools are either essentially secular, or neutral as far as religion is
concerned,FN6 and we conclude the general picture of the Schools reflects a primarily
secular rather than a primarily religious orientation.
FN6. The record does not disclose many details about the administration of the Schools. Mrs.
Bishop’s will requires that the trustees be Protestants, and grants the power of appointing them to
the justices of the Hawaii Supreme Court. There is no requirement that other administrative
positions be filled by Protestants, and there is nothing in the record to indicate that the Schools’
administration reflects a Protestant perspective, or has organized the Schools so as to promote
Protestant beliefs. Indeed, the record reveals recent generations of administrators have shifted the
focus of the Schools away from promoting religion.
1. Ownership and Affiliation-No religious organization has ever controlled or
supported the Schools, and the Schools are not affiliated with any denomination of
Protestants or with any organization or association of religious schools. The Schools are a
part of the Bishop Trust, which is a large and overwhelmingly secular business. Recent
annual reports for the Bishop Estate make no mention of religion. Recent annual reports
by the Schools to the trustees mention religion only as a form of “ancillary support.”
2. Purpose-In the advertisement for a substitute French teacher that gave rise to
this litigation, the Schools described themselves as “Protestant.” However, the record
reveals the purpose and emphasis of the Schools have shifted over the years from
providing religious instruction to equipping students with ethical principles that will
enable them to make their own moral judgments. A 1955 School Survey Report lauded
the “aim of developing in the students an attitude of worship and reverence.” By 1961,
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the Schools’ Introductory Pamphlet described religion as “a powerful influence for the
stabilizing of personality,” and asserted religious education at the Schools “seeks to
provide an atmosphere in which young people accept as their own the finest ideals of
conduct; and in cases where problems have arisen, to show moral and spiritual standards
by which the students can set up inward guidance to correct their problems.” The 198990 Course Catalog states each student “will be expected to develop to the best of his or
her ability, skills needed to relate positively to self and others, maintain health, continue
learning, enrich existence and participate in contemporary society for a rewarding and
productive life.” Students should “[d]efine a system of values which reflects positive
feelings about self and others and awareness of the rights and responsibilities of the
individual within society.”
3. Faculty-The Schools have consistently adhered to the Protestant-only
requirement for on-campus teachers, although there is no religious requirement for
teachers in off-campus programs. Until 1988, the Schools required prospective teachers
to present a baptismal record or letter of membership reflecting affiliation with a
Protestant church, but now require only that teachers certify their “membership in the
Protestant religion.” The Schools have never required their teachers to maintain active
membership in a church, and do not inquire into the substance of a teacher’s beliefs or the
extent to which teachers integrate those beliefs into their work. Of the two hundred and
fifty full-time on-campus faculty members, only three, including the Chaplain, have
specific religious teaching duties. The Chaplain teaches religious education and serves as
pastor of the Bishop Memorial Church, which is located on campus in a structure owned
by the Schools. With the exception of religious education, the Chaplain has no authority
over the curriculum.
4. Student Body-The Schools enroll more than 3,000 boarding and day students in
kindergarten through twelfth grade; more than two-thirds of whom attend grades seven
through twelve. The Schools operate off-campus programs for more than 16,000
additional students and administer community outreach programs for another 20,000
Hawaiians. The Schools do not consider the religious affiliation of prospective students
on or off campus, or of the persons participating in outreach programs. Less than onethird of the “on-campus” students are Protestants.
5. Student Activities-Students participate in a wide variety of activities, including
interscholastic athletics, canoe and weightlifting clubs, the Future Secretaries
Association, and French Club. As at public and private schools across the nation, students
may participate in Bible studies, or become members of the Fellowship of Christian
Athletes and Young Life (an inspirational society for high school students).
Some official school activities have religious overtones. Teachers in kindergarten
through eighth grade lead their classes in a daily prayer, and all boarders say grace before
dinner. Athletic teams pray before games, and the School’s daily bulletin usually reprints
a Bible verse. The Bishop Memorial Church holds services every Sunday during the
school year which all boarding students must attend (however, no students and only
nineteen of faculty were members of the church during the 1988-89 school year). The
Chaplain and the church coordinate “deputation teams” of students from the Schools who
lead services several times a year on other islands, although the number of students and
the number of visits has decreased over the years. Other mandatory school functions-such
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as Founder’s Day, Baccalaureate, and Graduation-include prayer and hymns in addition
to celebrations of Hawaiian culture. Another mandatory function-the Song Contest-seeks
“to build up the repertoire of the best in Hawaiian music for the cultural heritage of any
student who attends Kamehameha.”
6. Curriculum-The Schools describe themselves as “a comprehensive school”
with “programs in vocational, business, and college preparatory fields.” They offer a
complete array of courses in math, science, English, languages, and social studies, all of
which are taught from a secular perspective. No effort is made to instruct students in
Protestant doctrine, and the Schools have explicitly disavowed any effort to convert nonProtestant students. However, the Schools require each student to fulfill a limited
religious education requirement, as described below.
Religious instruction in kindergarten through sixth grade is provided by a
religious education teacher and consists of Bible stories, religious songs, and prayer for
15-30 minutes once a week for one semester. The present teacher describes her work as
“an important opportunity to expose children to the Christian faith. The emphasis is not
on any ‘religion’ but to teach the basic truths about how God and through his son Jesus
Christ teaches us how to live a joyous and fulfilling life.”
Religious education in the upper grades exposes students to the comparative study
of religions, and to the place religion has held in Hawaiian culture and history. Seventh
and eighth graders spend 10-14 hours a year in religious education classes. The single
course offered to seventh grade students is described as involving an examination of “The
Nature of ‘God,’ ” “The Nature of Man,” and “The Nature of Religion.” The course
description defines “God” as “the center, focus and object of any belief system, whether
person, idea or spirit,” and defines “religion” as “a structure that attempts to overcome
the separation between Man and ‘God,’ and to teach man how this can be achieved.” The
eighth grade course explores the historical development and beliefs of “Hinduism,
Buddhism, Judaism, Christianity and Islam.”
High school students must complete the requirements of the “Ekalesia” program,
which includes coursework and mandatory attendance at devotional services every other
week.FN10 In 1988-89, the course included study of “the Kumulipo, the Hawaiian creation
chant, ... [with] a comparative look at the creation chants of other religions,” and an
“historical study approach to three major Christian faiths [Congregationalism,
Catholicism, and the Church of Jesus Christ of Latter-Day Saints] that have impacted on
the Hawaiian people and the Hawaiian society today.” In 1987-88 students studied “the
Hawaiian and Christian heritage” of the Schools, and examined “the Congregational
missionaries and their impact upon the life and culture of the Hawaiian Kingdom.” In
addition to “Ekalesia,” the Schools offer high school students an elective class on the
Bible as literature.
FN10. In 1988-89, students were expected to complete one quarter of Ekalesia coursework each
year. The Schools modified the coursework component in 1989-90 so that only freshmen were
required to complete one quarter of coursework, although all students were still required to attend
devotions. The record does not disclose the form or content of the devotional services.
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In sum, the religious characteristics of the Schools consist of minimal, largely
comparative religious studies, scheduled prayers and services, quotation of Bible verses
in a school publication, and the employment of nominally Protestant teachers for secular
subjects. References to Bible verses, comparative religious education, and even prayers
and services are common at private schools and cannot suffice to exempt such schools
from §2000e-1; the addition of nominally Protestant teachers does not alter this
conclusion. We conclude the Schools are an essentially secular institution operating
within an historical tradition that includes Protestantism, and that the Schools’ purpose
and character is primarily secular, not primarily religious.
III. Religious Curriculum Exemption. … The district court ruled the Schools satisfied
the requirements of [42 U.S.C. §2000e-2(e)(2)] because “ ‘religion ... is an integral part
of the child’s daily life’ ” at the Schools. …
We turn first to the language of § 2000e-2(e)(2). The statute does not define
“propagate” or “curriculum,” but in the context of § 2000e-2(e)(2) and in light of their
ordinary meanings, “propagate” carries at least the general meaning of spreading or
instilling particular religious values, while “curriculum” is limited to coursework and
required school activities.
Sec. 2000e-2(e)(2) was added to the statute by floor amendment; its legislative
history is limited and does not change our understanding of the meaning of the term
“religious curriculum.” Representative Purcell offered the amendment and stated it was
“limited to church affiliated colleges and universities, part of whose mission ... is to
propagate the belief of the denomination that is supporting that educational institution.”
110 Cong.Rec. 2585-86 (Feb. 8, 1964), reprinted in EEOC, Legislative History of Titles
VII and XI of Civil Rights Act of 1964 3198 (1968). Representative Roush declared such a
school “should have the right to compel the individuals it employs to adhere to its beliefs,
for that [school] exists to propagate and to extend to the people with whom it has
influence its convictions and beliefs.” Id. at 2587, Legislative History at 3201.
Representative Edmondson indicated the exemption was intended to apply to “a college
that is dedicated primarily to the propagation of its faith.” Id. at 2590, Legislative History
at 3206. Although these comments do not address the meaning or scope of the curriculum
exemption directly, they are consistent with our conclusion that Congress did not
anticipate schools that disavow any effort to instill particular religious beliefs in their
students would come within the exemption.
There is no case law on the curriculum exemption. EEOC has interpreted the
provision in only one ruling, EEOC decision 75-186, reprinted in 1983 EEOC Decisions
¶ 6553. This decision rested primarily on the ground the school involved was wholly
owned, supported, controlled, and managed by a church and therefore was expressly
exempt under § 2000e-2(e)(2) whether or not it also fell within the curriculum exemption.
The opinion’s limited references to the curriculum exemption are not inconsistent with
our own understanding that application of this exemption is to be determined by an
essentially fact-based inquiry into the extent to which a school’s curriculum reflects an
effort to spread and inculcate particular religious beliefs.
As we have noted, the curriculum of the Schools has little to do with propagating
Protestantism, especially in grades 7-12. Seventh and eighth grade students study the
XII 14
nature of religious belief and the tenets of major faiths, and high school students take a
one quarter course exploring the interrelationship of western religions and Hawaiian
culture, but efforts to propagate Protestantism are not evident in this or any other
coursework or in required activities of the Schools. Courses about religion and a general
effort to teach good values do not constitute a curriculum that propagates religion,
especially in view of the Schools’ express disclaimer of any effort to convert their nonProtestant students. The Schools’ publications demonstrate religion is more a part of the
general tradition of the Schools than a part of their mission, and serves primarily as a
means for advancing moral values in the context of a general education.
[The BFOQ Discussion is found below in Part(C)(2) of this week’s materials.]
    
Discussion Question: Religious Institution Exception
93. Do you agree with the analysis in the cases in this section? Are they consistent with
the underlying purposes of the religious institution exceptions?
   
3. The Scope of the Exceptions
Saeemodarae v. Mercy Health Services
456 F.Supp.2d 1021 (N.D.Iowa 2006)
BENNETT, Chief Judge. The plaintiff in this action, a practicing Wiccan,FN1 asserts
religious discrimination and retaliation claims under federal and state law arising from
the termination of her employment with a medical center that claims to have a Roman
Catholic identity. … The court must now consider whether the plaintiff has generated
genuine issues of material fact on the defendant's qualification for the “religious
organization” exemptions from discrimination and retaliation claims under federal and
state law.
FN1. Federal courts have recognized Wicca (also known under various names, including “the
Wiccan (or Wiccian) religion,” “the Craft,” “witchcraft,” or “the Old Religion”) as a bona fide,
established, or sincerely held religion that is protected, for example, by the Free Exercise clause
of the First Amendment to the United States Constitution or Title VII of the Civil Rights Act of
1964. See, e.g., Dettmer v. Landon, 799 F.2d 929, 931-32 (4th Cir.1986) (Wicca is a religion
protected by the Free Exercise clause of the First Amendment to the United States Constitution);
Van Koten v. Family Health Mgmt., Inc., 955 F.Supp. 898, 902 (N.D.Ill.1997) (finding that Wicca
was a “religion” within the meaning of Title VII), aff'd, 134 F.3d 375, 1998 WL 54615 (7th
Cir.1998) (table op.) (finding sufficient evidence to assume a prima facie case, including that the
plaintiff was asserting protection on the basis of a “religion” within the meaning of Title VII).
I. INTRODUCTION. … B. Factual Background. … Mercy Medical Center-Sioux City
(the Hospital), where plaintiff Jackie Saeemodarae was employed, is owned and operated
by defendant Mercy Health Services-Iowa Corp. (Mercy). The Hospital is one of many
hospitals founded by the Sisters of Mercy, a Roman Catholic religious order, founded in
Ireland, and dedicated to serving the poor. As the Sisters of Mercy spread throughout
XII 15
Europe and settled in the United States, the Order established educational institutions,
hospitals and social service ministries. Among the institutions founded by the Sisters of
Mercy was the first Mercy Hospital, which was founded in the United States on
approximately January 1, 1847, in Pittsburgh, Pennsylvania. Since that time, the Sisters
of Mercy have come to sponsor or co-sponsor approximately 140 health-related facilities
throughout the United States, including hospitals, long term care facilities, rehabilitation
centers, and family care and outreach centers. There are presently six Mercy-sponsored
and co-sponsored health systems in the United States, including Trinity Health
Corporation, as well as a number of independent hospitals. Trinity Health Corporation is
the fourth largest Catholic Healthcare System in the United States.
The Sisters of Mercy first established a hospital in Sioux City, Iowa in 1890, at
the request of civic leaders who sought to establish a new hospital that was not associated
with city government. The hospital was established when Mother Mary Agatha Murphy
purchased a house and converted it into a hospital. That hospital was named St. Joseph
Mercy Hospital. The Sisters of Mercy purchased St. Vincent's Hospital in Sioux City,
Iowa, from the Benedictine Sisters in 1977, and merged the two hospitals under the name
Marian Health Center. In 1999, Marian Health Center's name was formally changed to
Mercy Medical Center-Sioux City.
Mercy Medical Center-Sioux City (the Hospital) is one of the hospitals owned
and operated by defendant Mercy Health Services-Iowa Corp., doing business as Mercy
Medical Center (Mercy). Mercy is, in turn, a Delaware, non-stock corporation. Mercy is a
non-profit corporation under Section 501(c)(3) of the Internal Revenue Code, 26 U.S.C. §
501(c)(3). Mercy owns and operates hospitals and other health services entities in the
state of Iowa, including Mercy Medical Center-Sioux City (the Hospital). Mercy is a
wholly controlled subsidiary of Trinity Health-Michigan, and Trinity Health-Michigan is
the sole corporate member of Mercy. Trinity Health-Michigan is a Michigan non-profit
corporation that seeks to act in ways that promote the spiritual teachings and principles of
the Roman Catholic Church. Trinity Health-Michigan is, in its turn, a wholly controlled
subsidiary of Trinity Health Corporation, an Indiana non-profit corporation.
Trinity Health Corporation and Mercy are sponsored by Catholic Health
Ministries. Catholic Health Ministries is a public juridic person of the Roman Catholic
Church, and its activities are carried out in a manner consistent with the guidelines and
directives of Catholic Health Ministries and the Roman Catholic Church. The Roman
Catholic Church recognizes Catholic Health Ministries as an entity that acts in the name
of the Church with respect to Church sponsored work.
In the event of dissolution, all of Mercy's assets must be distributed to Trinity
Health-Michigan, provided that upon dissolution Trinity Health-Michigan is an existing,
benevolent, charitable, scientific, religious, or educational institution, and is qualified as a
tax exempt organization under Internal Revenue Code section 501(c)(3). If Trinity
Health-Michigan, is not so qualified, the assets of Mercy must be distributed to an
organization that Trinity Health-Michigan designates, provided that organization meets
all of the criteria set forth above.
Mercy's mission is to continue the healing ministry of the Catholic Church and to
promote the well being of the people it serves by living the values of compassion,
XII 16
respect, concern for the poor, excellence, and stewardship. Mercy fulfills its mission, and
thus advances the healing ministries of the Catholic Church, by engaging in activities that
permit Mercy to prevent disease and promote public health; care for the sick, injured and
disabled; conduct medically related research; and otherwise further charitable, scientific,
and educational endeavors and support and provide services and programs for the health,
well being, and benefit of all people. To further its mission, Mercy owns, operates, and
manages hospitals, health care and related supporting or ancillary facilities, office
buildings, clinics, outpatient facilities, intermediate care facilities, nursing homes, and
other facilities that promote or support the aforementioned health services activities.
Under its Bylaws, Mercy must conduct its activities in a manner consistent with The
Guiding Principles for Catholic Health Ministries and its Apostolic Works, the teachings
of the Roman Catholic Church, and other directives promulgated by Catholic Health
Ministries. It must also act in a manner that promotes the values and principles inherent
in the medical-moral teachings of the Church, including the Ethical and Religious
Directives for Catholic Health Care Services, as approved by the National Conference of
Catholic Bishops.
During orientation, new employees of the Hospital are informed of Mercy's
Catholic history, its Catholic identity, and its Catholic mission. The Hospital's employee
policy manual informs employees of the Hospital's Catholic background and of its
Catholic mission. A chaplain from the medical center's Pastoral Care Department leads
morning and afternoon prayers and devotions on a daily basis. The prayers and devotions
are broadcast over the Hospital's loudspeakers. All employees are invited to participate.
The Hospital has a chapel on its premises. A Catholic mass, including scripture readings
from the Bible, is held in the chapel at noon on a daily basis. The Hospital also holds
services at its chapel on Catholic Holy Days of Obligation, including traditional Stations
of the Cross during Lent. Bibles are made available to patients and family members, both
in the chapel and in the patient rooms. During Advent, the Hospital displays two nativity
scenes depicting Christ's birth. One of the nativity scenes is live. The Hospital displays
other religious symbols throughout its facilities. All patient rooms have a cross on the
wall. Crosses are displayed throughout the Hospital's facilities. There is a statue of Jesus
Christ at the main entrance to the Hospital. At the patient entrance to the Hospital, a
religious painting is displayed. Artworks depicting Christ or other religious scenes are
also displayed throughout the Hospital.
Beginning in 2002, the Hospital began an initiative that resulted in promoting the
“Renewed Culture” of Mercy. Mercy chose “F.I.S.H.” as a symbol of its Renewed
Culture. The symbol associated with F.I.S.H. was used by early Christians to share their
faith while avoiding persecution. As an acronym, F.I.S.H. stands for “Faith-Inspired
Service and Healing.” Mercy's Faith-Inspired Service and Healing initiative is explained
to all new employees during orientation. New employees are taught that each of these
four characteristics, Faith, Inspired, Service and Healing, is essential to Mercy fulfilling
its mission. During orientation, new employees are provided a bookmark and lapel pin
both of which display the F.I.S.H. symbol. The F.I.S.H. symbol is displayed throughout
the Hospital, on letterhead, on the website, on the intranet, on computer screen savers,
and on murals and walls. The Hospital annually honors an employee who illustrates
exceptional performance that represents and demonstrates the employee's commitment to
the Hospital's values and the Hospital's culture of Faith Inspired Service and Healing. The
XII 17
award is named after Sister Catherine McAuley, and nominees are evaluated in areas
including compassion, stewardship, respect, concern for those who are poor, excellence,
faith, inspiration, service, and healing. In May of 2006, Sister Marlys Becker, a Chaplain
at Mercy, was honored as the most recent recipient of the award.
The Pastoral Care Department includes four full-time chaplains, one part-time
chaplain, and three on-call chaplains. Volunteers also provide Chaplain services,
including Deacon candidates from the Sioux City and Sioux Falls Catholic Dioceses.
Consistent with Trinity Health guidelines, Mercy has a Director of Mission Services and
Ethics who provides leadership for Mercy's mission services and who promotes the
mission and philosophy of Trinity Health and Mercy Health Network. The person who
holds this position is required to be Roman Catholic. The Director of Mission Services
and Ethics also serves as the Director of the Pastoral Care Department. …
The parties agree that Mercy has 2,100 employees in the Siouxland area. Mercy
recruits its employees from many sources, but while Saeemodarae contends that none of
those sources are church or religion based, Mercy contends that some of the referral
sources may be church or religion based. The parties do agree, however, that Mercy has
an Equal Employment Opportunity/Workforce Diversity Policy, although they dispute
the precise language of that policy. Mercy submits that the language is as follows:
It is the policy of Mercy to provide equal employment opportunities in all aspects of
employer/staff member relations and not discriminate for any reason prohibited by law.
Mercy is further committed to going beyond the legal requirements of equal employment
opportunity to take action to achieve diversity in our working environment.
Mercy does not require its employees to disclose their religious affiliations, with
one exception: Pursuant to a mandate in the Ethical and Religious Directives for Catholic
Health Care Services, the Director of Mission and Ethics is required to disclose his or her
religious affiliation, because the position requires the employee serving in that capacity to
have a Roman Catholic religious affirmation. Mercy also admits that it does not require
all of its employees to attend specific religious instruction, seminars, or workshops, but
argues that certain employees are required to attend religious instructions, seminars, and
workshops in the course of performing their jobs. Only the person in the Pastoral Care
Chaplain position at Mercy is required to conduct religious activities as an essential
function of the job. According to Saeemodarae, ten of the fifteen members of Mercy's
Board of Directors are Catholic, while Mercy admits that two-thirds of the board
members are “of the Roman Catholic religious affiliation.”
… Saeemodarae filed … complaint[s] with the Iowa Civil Rights Commission
(ICRC) alleging religious discrimination by Mercy, and … retaliation. … ICRC
conducted an investigation of Saeemodarae's administrative complaints and issued
“probable cause” findings that there was probable cause to believe that religious
discrimination and retaliation had taken place. However, Mercy points out that it did not
raise the “religious organization” exemptions in the administrative proceedings. …
II. LEGAL ANALYSIS. … B. Title VII's “Religious Organization” Exemption. Mercy
contends that it is entitled to summary judgment on Saeemodarae's Title VII religious
discrimination and retaliation claims, because it is a “religious organization” exempt from
such claims pursuant to 42 U.S.C. § 2000e-1(a). Saeemodarae disputes that contention.
XII 18
1. The applicable exemption: “Section 702 of the Civil Rights Act of 1964, 78
Stat. 255, as amended, 42 U.S.C. § 2000e-1, exempts religious organizations from Title
VII's prohibition against discrimination in employment on the basis of religion.”
Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos,
483 U.S. 327, 329, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987). … [I]t is not necessary that
the activities of the employer be “religious” activities for the exemption to apply. … On
the other hand, the provision does not “confer upon religious organizations the right to
make those same [employment] decisions on the basis of race, sex, or national origin.”
Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1166 (4th
Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986)….
2. Can Mercy assert the exemption?: Saeemodarae asserts that Mercy simply is
not a “religious organization” that is entitled to assert the “religious organization”
exemption in § 2000e-1(a). In determining whether an institution or entity is entitled to
assert the exemption, the court must “look at all the facts,” and in making this inquiry,
“[i]t is appropriate to consider and weigh the religious and secular characteristics of the
institution.” Hall, 215 F.3d at 624 (considering the applicability of both the “religious
organization” exemption in §2000e-1(a) and the “religious school” exemption in §2000e2(e)(2)).
In Hall, the court treated the “religious school” exemption in § 2000e-2(e)(2) as a
more specific exemption than the “religious organization” exemption in § 2000e-1(a). See
id. (quoting § 2000e-1(a), then noting “[a]nother, more specific exemption [in § 2000e2(e)(2)] applies only to religious educational organizations.”). Thus, if anything, Hall
stated more specific factors, for purposes of the § 2000e-2(e)(2) exemption, than are
required for application of the § 2000e-1(a) exemption. In Hall, the court identified
pertinent factors for determining whether the exemptions should apply as including an
examination of the “religious nature” of the purported “religious organization,” as
demonstrated by such things as whether it was supported and controlled by a religious
corporation; whether and to what extent its purpose was making the interrelated
religious/service mission of the pertinent religious denomination a reality; and whether
the institution was founded by sectarian entities. Id. at 624-25. The court also looked at
the “atmosphere” of the entity, including whether that “atmosphere” was “permeated with
religious overtones”; where and how it recruited its students or employees; whether
prospective students were informed of the religious mission of the entity; whether
incoming students were informed of the religious mission at orientation; whether
materials and facilities were decorated with religious images; whether religious studies
were required; whether regular religious ceremonies and practices were observed; and
whether the entity hosted religious programs. Id. at 625. The court held that the fact that
the institution trained its students in secular professions, in that case, health care, did not
transform the institution into one that was secular. Id.
In an earlier case, Killinger v. Samford University, 113 F.3d 196 (11th Cir.1997),
the Eleventh Circuit Court of Appeals addressed the qualification of an ostensibly
religious university to assert the “religious organization” exemption in § 2000e-1(a),
rather than the more specific “religious school” exemption in § 2000e-2(e)(2). See
Killinger, 113 F.3d at 198. In finding that the university was a “religious organization”
within the meaning of § 2000e-1(a), the court rejected the plaintiff's contention that the
XII 19
university was not sufficiently “sectarian,” because “rigid sectarianism” is not required to
invoke the exemption, nor had prior decisions required that all employees (or students) of
the institution belong to the sponsoring sect. Id. at 198-99 (noting that, in EEOC v.
Mississippi College, 626 F.2d 477, 479 (5th Cir.1980), 95% of the faculty and 88% of a
Baptist college were Baptist). The court then noted numerous factors that were pertinent
to its conclusion that the university qualified for the “religious organization” exemption:
The college was founded as a “theological” institution by the Alabama Baptist State
Convention, and while the Convention no longer had the authority to elect the school's
trustees, all of the trustees were and, with only one exception, always had been Baptist;
seven percent of the institution's annual budget came from the Convention, and that sum
was the largest single source of funding; the university reported its financial status to the
Convention and another Baptist institution; the school was a member of the Association
of Baptist Colleges and Schools; all faculty were required to subscribe to the 1963 Baptist
Statement of Faith and Message, and both faculty contracts and the faculty handbook
affirmed this commitment; the school's charter designated its chief purpose to be the
promotion of the Christian religion; all students were required to attend chapel; and the
IRS had granted the school religious exemptions. Id. at 199. The court never suggested,
however, that any or all of these factors were required for an institution to assert the
exemption. Moreover, in Killinger, the court rejected the plaintiff's contention that there
is an “institutional policy” requirement that would require the institution to establish a
causal relationship between a specific religious policy and the termination of the
employee, because the university's policy included its general purpose, principles, and
tendencies as a religious institution, and there was no requirement that a strict policy of
religious discrimination in employment decisions was required to assert the exemption.
Id. at 199-200; see also Wirth v. College of the Ozarks, 26 F.Supp.2d 1185, 1188
(W.D.Mo.1998) (finding that a college founded by the Presbyterian Church Synod was a
“religious corporation” exempt from claims of religious discrimination, because the
college was incorporated as a not-for-profit corporation, its charter mission was to
provide a Christian education, the college was a member of the Coalition for Christian
Colleges and Universities, a national organization of evangelical Christian institutions,
and a member of the Association of Presbyterian Colleges and Universities; the fact that
the college was non-denominational did not undermine its exempt status, because the
exemption applied notwithstanding the particular beliefs that the religious corporation
sought to foster).
Here, the court finds that there is no genuine issue of material fact that both the
“nature” of Mercy and the “atmosphere” at Mercy are unequivocally “religious.” See
Hall, 215 F.3d at 624-25. Mercy's “nature” is undisputedly religious, because it was
founded by sectarian entities, the Sisters of Mercy; it is supported and controlled by a
Catholic institution, Trinity Health-Michigan, which is a Michigan non-profit corporation
that seeks to act in ways that promote the spiritual teachings and principles of the Roman
Catholic Church; and its purpose is making the interrelated religious/service mission of
the Catholic Church a reality, because it is undisputed that Mercy's mission is to continue
the healing ministry of the Catholic Church and to promote the well being of the people it
serves by living the values of compassion, respect, concern for the poor, excellence, and
stewardship. See id. (identifying similar factors); Killinger, 113 F.3d at 199 (also looking
at whether the purported “religious organization” was founded, controlled, and funded by
XII 20
sectarian institutions). Mercy's “atmosphere” is also undisputedly “religious,” because as
in Hall, the “atmosphere” is “permeated with religious overtones,” as demonstrated by
religious decoration and iconography throughout the Hospital; handbooks and orientation
materials for employees that inform them of Mercy's religious mission and religious
foundation; the F.I.S.H. initiative, which reaffirmed the religious values of the institution;
the regular practice of religious ceremonies, such as prayers and devotions broadcast on
the hospital speaker system; and the well-developed pastoral care program with a staff of
on-site chaplains. See id. (identifying similar factors contributing to the religious
“atmosphere” of the institution); Killinger, 113 F.3d at 199 (noting that faculty contacts
and handbooks and student orientation materials informed faculty and students of the
religious mission and purpose of the institution, that religious education was required,
and that religious ceremonies were observed).
Saeemodarae contends, however, that members of Mercy's governing board are
not required to be Catholic and, in fact, only ten of the fifteen members of the board are
Catholic, that Mercy recruits its employees from the population at large, using many
sources, none of which could be characterized as “Catholic,” and that Mercy does not
require its employees to take religious instruction or require a particular religious
affiliation for any employee other than the Director of Mission and Ethics, who is also the
Director of the Pastoral Care Department. First, Mercy disputes Saeemodarae's
contention that none of the sources from which it recruits its employees could be
characterized as “Catholic.” Second, leaving aside whether Mercy disputes
Saeemodarae's contentions, nothing Saeemodarae has cited is more than an isolated
factor in what is an otherwise overwhelmingly religious context. Third, as to the “mixed
membership” of the board and the employee pool, and the fact that only one position is
expressly required to be occupied by a Catholic, “strict” or “rigid” sectarianism simply is
not required. See Killinger, 113 F.3d at 198-99. Moreover, Mercy clearly articulates to its
employees and actively pursues a policy that includes its general purpose, principles, and
tendencies as a religious institution; there is no requirement that Mercy employ a strict
policy of religious discrimination in employment decisions to assert the exemption.
Killinger, 113 F.3d at 199-200. Nor does Saeemodarae's contention that Mercy's purpose
to provide health care is “secular” change the outcome, because it is not necessary that
the activities of the organization be “religious” activities for either the organization or the
activities to be exempt. See Amos, 483 U.S. at 332 n. 9, 107 S.Ct. 2862….
Saeemodarae next asserts that Mercy waived the exemption in two ways: (1) by
holding itself out as an equal opportunity employer; and (2) by failing to assert the
exemption in proceedings before the ICRC. The first argument failed in Hall, because the
court found that “the statutory exemptions from religious discrimination claims under
Title VII cannot be waived by either party.” Hall, 215 F.3d at 625…. As the court
explained in Hall,
The exemptions reflect a decision by Congress that religious organizations have a
constitutional right to be free from government intervention. Id. “Once Congress stated
that ‘[t]his title shall not apply’ to religiously-motivated employment decisions by
religious organizations,” neither party could expand the statute's scope. Siegel, 13
F.Supp.2d at 1345 (quoting Little, 929 F.2d at 951). Accordingly, the court in Ward v.
Hengle, 124 Ohio App.3d 396, 400, 706 N.E.2d 392 (1997), held that the trial court need
not even determine whether a church waived its Title VII exemption from religious
XII 21
discrimination claims based on a statement in its employment handbook that it would not
discriminate against its personnel on the basis of religion. See also Siegel, 13 F.Supp.2d
at 1344 (government funds are most likely available to all institutions of higher learning
whether or not they have a religious affiliation).
Hall, 215 F.3d at 625. The inability of either party to waive the “religious organization”
exemption applies here to both Saeemodarae's assertion of waiver based on Mercy's equal
employment opportunity policy and her assertion of waiver based on Mercy's failure to
raise the exemption before the ICRC.
Moreover, while Mercy did have an Equal Employment Opportunity/Workforce
Diversity Policy, that policy contained no undertaking not to discriminate against its
personnel on the basis of religion. Compare Siegel, 13 F.Supp.2d at 1344 (the religious
organization's employment handbook contained such an undertaking). Rather, as Mercy
points out, its policy only states that Mercy will not discriminate “for any reason
prohibited by law,” and religious discrimination in employment by a religious
organization is not “prohibited by law.” Thus, Mercy's equal employment opportunity
policy does not waive an exemption for religious discrimination claims.
The court finds that, as a matter of law, Mercy is a “religious organization”
entitled to assert the exemption to Title VII religious discrimination claims set forth in
§2000e-1(a).
3. Does the exemption apply to Saeemodarae's claims?: … Saeemodarae maintains that
there is a “fighting issue” as to whether Mercy's “religious organization” exemption
extends to her Title VII retaliation claim, even if the exemption extends to her Title VII
religious discrimination claim. In Lown v. Salvation Army, Inc., 393 F.Supp.2d 223
(S.D.N.Y.2005), the court disposed of the Title VII retaliation claim of employees of a
“religious organization” succinctly as follows:
Plaintiffs' Title VII retaliation claim must be dismissed because the broad language of
Section 702 provides that “[t]his subchapter shall not apply ... to a religious ... institution
... with respect to the employment of individuals of a particular religion....” 42 U.S.C. §
2000e-1(a). Title VII's anti-retaliation provision, 42 U.S.C. § 2000e-3(a), is contained in
the same subchapter as Section 702. Accordingly, it does not apply here. See Hall, 215
F.3d at 625 (Section 702 “reflect[s] a decision by Congress that religious organizations
have a constitutional right to be free from governmental intervention.”).
Lown, 393 F.Supp.2d at 254. This court agrees that, as a matter of “plain language,” the
exemption in § 2000e-1(a) for “religious organizations” from “[t]his subchapter,”
necessarily includes an exemption from the anti-retaliation provision in 42 U.S.C.
§2000e-3(a), which is in the same subchapter. … Moreover, as Mercy contends, it makes
little sense to permit retaliation claims, because to do so would erode the intended effect
of the exemptions, which is to recognize “the constitutionally-protected interest of
religious organizations in making religiously-motivated employment decisions,” Hall,
215 F.3d at 623, at least where the underlying claim that the employee was allegedly
retaliated against for asserting is a religious discrimination claim.
Therefore, the court concludes that, as a matter of law, Mercy's §2000e-1(a)
“religious organization” exemption extends to Saeemodarae's retaliation claim, based on
retaliation for asserting religious discrimination, as well as her underlying religious
XII 22
discrimination claim….
C. The ICRA's “Bona Fide Religious Institution” Exemption. Saeemodarae has
also asserted religious discrimination and retaliation claims pursuant to the Iowa Civil
Rights Act (ICRA), IOWA CODE CH. 216. Mercy has also asserted that it entitled to
summary judgment on those claims, because Mercy contends that, as a matter of law, it is
entitled to assert an exemption for “bona fide religious institutions” to claims of religious
discrimination under the ICRA similar to the Title VII exemption.
1. The applicable exemption:
The ICRA defines various “unfair or
discriminatory” employment practices, including discrimination in employment “because
of the age, race, creed, color, sex, national origin, religion, or disability” of the employee
or applicant. IOWA CODE § 216.6(1)(a). However, like Title VII, § 216.6 of the ICRA
also provides exemptions for religious entities from claims of religious discrimination, as
follows:
6. This section shall not apply to:
******
d. Any bona fide religious institution or its educational facility, association,
corporation, or society with respect to any qualifications for employment based on
religion when such qualifications are related to a bona fide religious purpose. A
religious qualification for instructional personnel or an administrative officer, serving
in a supervisory capacity of a bona fide religious educational facility or religious
institution, shall be presumed to be a bona fide occupational qualification.
IOWA CODE § 216.6(6)(d). The parties assert that no Iowa court has interpreted this
provision, and the court has found no Iowa or other court that has done so. On what
appears to be an issue of first impression, Saeemodarae argues that this exemption
employs different language than the Title VII exemption and should be interpreted
differently. While Mercy concedes that there are differences in the language of the state
and federal exemptions, Mercy contends that the language is not so materially different
that the state exemption should be interpreted differently.
2. Should the court exercise supplemental jurisdiction to interpret the exemption?:
…[T]he court finds that comity strongly suggests that the court should decline to consider
whether Mercy is entitled to assert the ICRA “bona fide religious institution” exemption
or whether that exemption, if Mercy is entitled to raise it, exempts Mercy from
Saeemodarae's religious discrimination and retaliation claims. First, the language of the
ICRA exemption is different, perhaps in material ways, from the Title VII exemption. …
Second, except where other factors weigh strongly in favor of exercising supplemental
jurisdiction, the court believes that interpretation of a state statute as a matter of first
impression should be left to the state courts. …
III. CONCLUSION. … While this court is sensitive to the issues of discrimination
against protected persons, including adherents of a “minority” religion, the court
nevertheless finds that the broad exemption for “religious organizations” from religious
discrimination claims under Title VII plainly applies to Saeemodarae's Title VII claims of
religious discrimination and retaliation. Consequently, Mercy is entitled to summary
judgment on Saeemodarae's Title VII claims. On the other hand, … the court declines to
exercise supplemental jurisdiction … over Saeemodarae's remaining state-law claims of
XII 23
religious discrimination and retaliation in violation of the ICRA, where the interpretation
of the ICRA exemption for “bona fide religious institutions” is a matter of first
impression.
One final point. This opinion addresses only the question of whether Mercy, in
allegedly discriminating against an employee on the basis of her Wiccan religion,
violated Title VII. Just because Congress has broadly enabled religious organizations to
discriminate against employees on the basis of their religion does not mean that they must
or should do so. Thus, this opinion does not address whether Mercy's actions were fair,
just, or moral. Some will wonder why a Catholic religious organization like Mercy did
not have room in its employee ecumenical tent for Ms. Saeemodarae. Was it fear of a
perceived odd or strange religion like the Wicca religion? Was it religious intolerance or
bigotry? Was the discharge “a Christian thing to do”? Were Mercy's actions consistent
with its Catholic theology and teachings? These questions, interesting and probing as
they may be, are clearly far beyond the reach of this federal court. …
   
Discussion Questions: Saeemodarae
94. Do you agree with the court that the hospital is covered by the religious institution
exception?
95. Assuming that the hospital’s non-discrimination policy explicitly stated that the
hospital would not discriminate on the basis of religion with regard to the plaintiff’s job,
should that count as a waiver of the exception?
96. As a matter of statutory interpretation, the court is probably correct that the
exception governs the retaliation claim. If the language of the exception were more
ambiguous, are there reasons to treat retaliation claims differently from underlying
religious discrimination claims?
97. If you were asked to apply the Iowa statutory language to this case, would the
hospital be eligible for the exception with regard to the plaintiff?
   
(B) Religious Organizations (FHA)
Statutory Provision (42 U.S.C.)
§3607(a) Nothing in this subchapter shall prohibit a religious organization, association, or
society, or any nonprofit institution or organization operated, supervised or controlled by or in
conjunction with a religious organization, association, or society, from limiting the sale, rental or
occupancy of dwellings which it owns or operates for other than a commercial purpose to persons
of the same religion, or from giving preference to such persons, unless membership in such
religion is restricted on account of race, color, or national origin.
    
XII 24
UNITED STATES v. COLUMBUS COUNTRY CLUB
915 F.2d 877 (3rd Cir. 1990)
SEITZ, Circuit Judge. The government appeals from two orders of the district court
resulting in the dismissal without trial of its action to enforce the Fair Housing Act.
I. The facts material to our disposition are not in dispute. The Columbus Country Club
(defendant) was formed in 1920 by the Knights of Columbus, a Roman Catholic men’s
organization.... In 1936, defendant eliminated the requirement that members belong to
the Knights of Columbus but retained the requirement that members be Catholic males.
There is no legal relationship with the Knights of Columbus.
Defendant presently maintains a community of 46 summer homes (called
“bungalows”) located on a 23-acre tract of land along the Delaware River north of
Philadelphia. Defendant’s by-laws prohibit members from occupying their bungalows
from October through April. Even if a family wanted to live in a bungalow year round,
the lack of running water and heating facilities would make it impracticable. In addition
to the summer homes, the property includes a clubhouse, a barn for lawn care equipment,
a chapel and a grotto. Recreational facilities include a tennis court, playground,
shuffleboard court and a swimming area. Defendant has a liquor license.
Defendant is organized as a non-profit organization, and its membership is
comprised of annual, associate and social members. Annual members are those members
who own bungalows and vote on all matters affecting the organization. The annual
members own the land collectively. Pursuant to a leasehold agreement, defendant leases
bungalow lots to the annual members for an annual fee. Annual members must be
members in good standing of the Roman Catholic Church.1 Associate members are
adults over age 21 who live in the bungalows throughout the summer, but are not annual
members. These individuals are generally the immediate family of annual members.
Social members are close friends and relatives of annual members who do not occupy
bungalows throughout the summer. Neither associate members nor social members are
required to be Roman Catholic.
Defendant is not formally affiliated with the Roman Catholic Church, nor with
any Catholic organization. Prior to 1987, the “purpose” section of defendant’s by-laws
did not mention Catholicism or affiliation with the Roman Catholic Church. As laid out
in the original charter:
The purpose for which the corporation is formed is the maintenance of a Club for social
enjoyments, in order to cultivate cordial relations and sentiments of friendship among its
members and provide accommodations for social intercourse, outdoor sport, and healthful
recreation for them.
Notwithstanding the lack of formal ties between the Church and defendant, many
of its members are practicing Catholics. In 1922, the Archbishop of Philadelphia granted
the club special permission for the celebration of mass on the club grounds each Sunday
and provided a priest from a nearby town for such services. Some members conduct the
1
Until amendment of the by-laws in 1987, the club restricted annual membership to men.
XII 25
rosary each night in the chapel. A statue of the Virgin Mary stands in the grotto near the
entrance to the club.
Defendant follows a formal procedure in admitting new members to the
community. Since the 1987 amendments to the by-laws, the membership applications
must be accompanied by a written recommendation from the applicant’s parish priest
stating that the applicant is a practicing Roman Catholic in good standing. The full
Board, by majority vote, makes the final decision on the admission of new members.
There have been thirty-one transfers of ownership interests in bungalows since 1970.
Since 1968, only four applicants have not been approved for annual membership.
II. This lawsuit stems from the efforts of associate member Anita Gualtieri to become an
annual member. Mrs. Gualtieri first applied for membership in 1986 so that she could
purchase from her mother the leasehold on the bungalow that her family had held since
the 1950’s. She was informed that she was not eligible for annual membership because
she was a woman. Her husband was also ineligible for annual membership because he
was not a member of the Roman Catholic Church. Failing to have the eligibility
requirements amended, Mrs. Gualtieri wrote to the Cardinal’s Commission on Human
Relations and Urban Ministry to complain of defendant’s discriminatory practices. After
an investigation, the Archdiocese informed defendant that the allegations were not
unwarranted and threatened to withdraw permission to hold mass at the club.
Subsequently, defendant revised its by-laws to make them gender-neutral, but did not
alter the requirement that annual members be Roman Catholic. Rather, language was
added to the purpose section emphasizing the religious aspects of the community’s life
and adding the requirement of a written statement from the parish priest attesting to an
applicant’s status as a member of the Roman Catholic Church.
Mrs. Gualtieri reapplied for annual membership in 1987. The Board of Governors
considered and voted against her application based allegedly on the family’s prior
demonstrated lack of ability to get along with the community and lack of interest in the
religious aspects of the community.
Mrs. Gualtieri notified the Civil Rights Division of the Department of Justice of
defendant’s policies, and it subsequently filed suit, alleging a pattern and practice of
discrimination in the sale of dwellings, on account of religion and sex, in violation of the
Fair Housing Act. After a hearing on the parties’ cross-motions for summary judgment,
the district court held that defendant was exempt from the Act under both the religious
organization and private club exemptions. …
IV. Statutory Exemptions. Defendant asserts that ... it is exempt from the Fair Housing
Act under the exemptions provided by 42 U.S.C. §3607(a) for religious organizations and
private clubs. “Under general principles of statutory construction, ‘[o]ne who claims the
benefit of an exception from the prohibition of a statute has the burden of proving that his
claim comes within the exception.’“ Mills Music, Inc., v. Snyder, 469 U.S. 153, 188 n.20
(1985) (White, J., dissenting) (quoting 2A C. SANDS, SUTHERLAND ON STATUTORY
CONSTRUCTION §47.11, at 145 (rev. 4th ed. 1984)). Thus, defendant has the burden of
proving that it falls within the statutory exemption provided for religious organizations or
private clubs as a matter of law.
XII 26
Religious Organization Exemption. Defendant’s first affirmative defense is that it
is exempt from the Fair Housing Act under [§3607’s] exemption for religious
organizations. ... To fit into this exemption, defendant must prove that it is either: (1) a
religious organization, or (2) a non-profit organization “operated, supervised or
controlled by or in conjunction with” a religious organization. The district court
concluded and defendant does not dispute that it is not itself a “religious organization.”
The dispute centers instead upon whether defendant is “operated, supervised or controlled
by or in conjunction with” a religious organization.
The government argues that the quoted language implies a hierarchical
relationship in which the non-profit entity is subordinate to the religious organization. At
the very least, the government contends, there must be some direct affiliation between the
religious organization and the other organization, as would be the case with a religious
school, for example. This interpretation finds some support in the limited legislative
history. Senator Mondale, whose amendment to the 1968 Civil Rights Act was adopted
by Congress to create Title VIII, stated: “There is an exemption to permit religious
institutions or schools, etc., affiliated with them, to give preference in housing to persons
of their own religion despite the Act.”
As the government argues, the Catholic Church does not operate, supervise or
control defendant. There is no formal or legal relationship between them. At the most,
the Church approves of and supports defendant by permitting religious services to be
conducted on the premises.
Defendant responds that it is “operated in conjunction with a religious
organization” and is directly affiliated with the Catholic Archdiocese. In support of its
response, defendant argues that the exemption for religious organizations should be read
broadly, and that the undisputed facts demonstrate that defendant is entitled to the
exemption as a matter of law.
Defendant contends that the broad language of the exemption and the common
dictionary meaning of the words used indicate that the relationship between the religious
organization and the non-profit organization may consist of anything ranging from a
formal, highly structured, hierarchical relationship to an informal, loosely-structured
relationship. Additionally, defendant asserts, the religious exemption reflects Congress’s
sensitivity to first amendment rights. Consequently, defendant argues, the exemption
should be broadly construed to cover activity that is permitted, but not required, by the
Church.
We cannot agree with defendant’s contention that the exemption is to be read
broadly. A unanimous Supreme Court mandated in Trafficante a “generous construction”
of the Fair Housing Act in order to carry out a “policy that Congress considered to be of
the highest priority.” The logical corollary to such a construction, as well as the general
rule of statutory interpretation, is to construe narrowly any exemptions to the Act. Such a
narrow reading is also supported by the only case interpreting Title VIII’s religious
exemption that we have found. See Hughes Memorial Home, 396 F.Supp. at 550 (“In
view of the Supreme Court’s holding that the Fair Housing Act must be accorded a
generous construction, the general principle requiring the strict reading of exemptions
from the Act applies here with even greater force.”).
XII 27
In holding that defendant fell within the exemption for religious organizations, the
district court relied upon the defendant’s affiliation with the Church as evidenced by the
Church’s grant of the privilege of having weekly mass celebrated on the grounds and its
tacit approval of the recital of the rosary. In reaching its conclusion, the district court
found that the Catholic Church does not actually “control” the club or its operations. The
district court did state, however, that “the persons who, over the years, have operated and
controlled the club, have done so ‘in conjunction with’ their continuing obligations as
members of the Roman Catholic faith,” and went on to conclude that “[a]s a practical
matter, by virtue of its ability to grant or withhold the privilege of holding religious
services in the club chapel ... the Archdiocese does possess a very significant degree of
control over the club itself.”
We do not think that these undisputed facts are sufficient to hold that defendant
carried its burden. The critical words of the exemption are “in conjunction with,” and so
there must be a mutual relationship between the non- profit society and a religious
organization. The existence of this relationship cannot depend solely on the activities of
the non-profit organization nor be viewed only from its perspective. Indeed, evidence of
the club’s unilateral activities would go to whether it is itself a religious organization not
to whether it is operated “in conjunction with” a religious organization. Furthermore, the
Church’s ability to withdraw permission to hold mass and the fact that on one occasion it
may have indirectly influenced the club’s Board of Governors by threatening to do so are
not enough. Without further evidence of interaction or involvement by the Church, we
cannot conclude that as a matter of law the Church controlled the defendant or that the
defendant was operated “in conjunction with” the Church. Consequently, on this record
and in light of our unwillingness to read the statutory exemption broadly, we hold that the
defendant failed to carry its burden of proving its entitlement to the religious organization
exemption. …
MANSMANN, Circuit Judge, dissenting. I dissent because I believe that the panel
majority, in construing the religious exemption from the Fair Housing Act, unduly
minimizes significant connections between the Columbus Country Club and the Catholic
Church. By insisting that a formal hierarchical relationship be established between the
Church and the Club before the exemption may be invoked, the majority reaches a result
which, in my view, was not anticipated by those drafting the Fair Housing Act. The
narrow construction of the exemption has potentially significant implications for those
wishing sincerely to live and associate in religious community.
It is important to note, at the outset, that this case is the first … to construe the
Act’s religious exemption provision.1 This has not been a fertile ground for litigation and
I believe that our analysis should reflect that fact, by being firmly grounded in the
statutory language and the facts of this case.
I. In order to assess the majority’s conclusions regarding the inapplicability of the
religious exemption, I must detail the history and dimension of Columbus Country Club’s
While the panel majority cites Hughes Memorial Home as having interpreted Title VIII’s
religious exemption, that court did not address the exemption substantively as it determined,
initially, that the exemption was totally inapplicable to the facts presented.
1
XII 28
connection with the Roman Catholic Church. It is against this background that the
statutory exemption must be evaluated.
The Columbus Country Club was organized in 1920 by the Knights of Columbus,
a Roman Catholic men’s organization. In 1922, while members were still required to
belong to the Knights of Columbus, title to the land was taken in the name of a separate
non-profit corporation. In 1924, the Club was given its current name and, in 1936, the
Club eliminated the requirement that members be affiliated with the Knights of
Columbus; membership continued to be limited to Catholic males.
As the majority points out, the Club’s annual members are required to be
members in good standing of the Roman Catholic Church. Prospective annual members
are required to obtain the endorsement of an annual member and complete a one-page
application form containing, among other things, the name of the prospective purchaser’s
parish. The applicant must demonstrate that he or she, too, is a practicing Roman
Catholic in good standing with his or her parish church; a statement to this effect from
the parish priest must accompany the application.
The Club contends that, from its inception, religious expression has been an
integral feature of the Club community. When the Club opened, the grounds were
dedicated in a special ceremony led by the organization’s spiritual director and two
priests. During the period from 1920-1922, a special mass was celebrated each Sunday in
the local parish for the benefit of Club members.
In 1922, and for the succeeding sixty-eight years, the Archbishop of Philadelphia
has granted the Club special permission to have mass celebrated in a chapel on the Club
grounds on each Sunday of the summer season. The Catholic Archdiocese of
Philadelphia provides the Club with the services of a priest who celebrates the weekly
mass and leads other special religious ceremonies observed by the Club members.
Family members meet in the chapel each summer evening to pray the rosary and a
consecrated statue of the Blessed Mother stands in an area of the grounds known as the
“grotto.” Both the chapel and the grotto are maintained by club members and the Sunday
offering taken in the chapel is remitted to the local parish.
The affidavit of Reverend Richard J. Fleming, pastor of the parish in which the
Club is located, was appended to the Club’s motion for summary judgment. [It] states
that because Columbus Country Club, “a community of Roman Catholic families who
live, pray, and worship together through the summer months ... is a Roman Catholic
organization, the Archdiocese of Philadelphia provides it with the special privilege of
celebrating mass on its grounds. This is a very rare and unusual privilege.” The affidavit
also establishes that a parish priest celebrates mass at the Club on the Fourth of July and
on August 15, a holy day of obligation. Club families take an active role in celebration of
the Mass which, each week, is said in honor of the deceased members of a particular Club
family.
The same affidavit notes that the statue of the Blessed Mother on Club grounds
was consecrated by a priest in a special ceremony for the benefit of Club families and the
Club is in the process of applying for the special privilege of having the chapel named in
honor of a woman soon to be canonized a saint.
XII 29
Church doctrine recognizes the value of the assembly of a community of believers
as an integral facet of the practice of Catholicism. Furthermore, the affidavit states that
“the Roman Catholic church recognizes and approves of the assembly of a group of
Roman Catholic families for a summer retreat of weekly worship and daily prayer
together as a valuable and legitimate exercise of their religious beliefs.”
II. Congress drafted the religious organization exemption broadly to apply to any
“religious organization, association, or society or any non-profit institution or
organization operated, supervised or controlled by or in conjunction with a religious
organization....” 42 U.S.C.§3607(a). Given the use of the disjunctive form here, the
Club argues that Congress intended that the statutory exemption apply to any non-profit
organization that is “operated by” or “supervised by” or “controlled by” or “operated in
conjunction with” or “controlled in conjunction with” a religious organization. The
district court found that, at the very least, the Club operated in conjunction with the
Roman Catholic Church, and was, therefore, entitled to the Act’s religious exemption:
[A]lthough, as a strictly legal proposition, the Roman Catholic Archdiocese does not
actually “control” the club or its operations, it is clear that the persons who, over the
years, have operated and controlled the club have do so “in conjunction with” their
continuing obligations as members of the Roman Catholic faith. As a practical matter, by
virtue of its ability to grant or withhold the privilege of holding services in the Club
chapel—a privilege which is central to the traditional operations of the club—the
Archdiocese does possess a very significant degree of control over the club itself.
The majority, evaluating all of the undisputed facts detailed above …, concludes,
surprisingly to me, that the Country Club has not carried the burden of establishing
entitlement to the religious organization exemption. According to the majority, the words
“in conjunction with” imply a “mutual relationship between a non-profit society and a
religious organization. The existence of this relationship cannot depend solely on the
activities of the non-profit organization nor be viewed only from its perspective.” The
majority concludes that “[w]ithout further evidence of interaction or involvement by the
Church, we cannot conclude that as a matter of law the Church controlled the defendant
or that the defendant was operated ‘in conjunction with’ the Church.”
This result is not compelled by the text of the exemption itself. The language of
the exemption does not focus solely upon “control” or “mutuality” but describes a
number of different types of relationships which serve to bring an organization within the
terms of the exemption. The majority’s reliance on equivocal legislative history
notwithstanding, I think it clear that the Columbus Country Club, under the terms of the
statute itself, qualifies for the religious organization exemption. If Congress had meant to
make control or mutuality the determinative evaluative criterion, it certainly would have
expressed this intention more clearly. The exemption here must be interpreted at least as
broadly as the common meaning of its text, rather than restricted to circumstances far
more narrow than the meaning conveys. The majority approach simply is not supported
by the plain language of the exemption.
III. Even if a mutuality standard were clearly expressed…, I would find that that
standard has been met. In examining the history of Columbus Country Club and, the
uncontroverted details of its connections to the Catholic church, I find it difficult to
imagine what more the panel majority could want in terms of mutuality. The Club has
XII 30
operated to support the Church, both monetarily and by its members’ living and
practicing the tenets of the Roman Catholic faith. The Church, in turn, has supported the
Club, by participating in its founding, by providing prayer support and by making clergy
available to the community where it does not do so in other cases; the Church’s
provision of a priest to conduct services is central to the Club’s purpose and philosophy
and, as the district court concluded, certainly provides the Church with a substantial
measure of de facto control over Club operations. The Church has, in fact, exercised its
influence over the Club in bringing it into compliance with the Church’s policy against
sex discrimination.
Throughout this litigation, the government has taken the position, which the
majority apparently accepts, that the Columbus Country Club is nothing more than a
homeowner’s association whose “one link” to the Church—the weekly mass—is not
sufficient to support exemption from the Fair Housing Act. In the government’s view—
again tacitly adopted by the majority—the extremely narrow interpretation of the
exemption’s phrase “in conjunction with” is appropriate. Otherwise, the argument goes,
any group of persons holding the same religious beliefs could exclude others from their
housing development simply by calling themselves a religious organization and arranging
for a local church to hold certain services on the development’s grounds.
Where the legislative history underlying this exemption is, by the majority’s
admission, scant, there is no guiding caselaw, and the wording of the exemption itself is
quite broad, I think it inadvisable to read into the exemption a requirement of formality
that is not clearly expressed. This is especially so given the first amendment implications
of this case.
I conclude that the uncontroverted record does not support the conclusion that the
Club is nothing more than a homeowner’s association bent on excluding non-Catholics.
The religious dimension of this Club is substantial and does not, as the parties agree,
represent a subterfuge to evade the requirements of the Fair Housing Act. The Club’s
organization and religious character preceded enactment of the Fair Housing Act by more
than 48 years and there is not the slightest indication of bad faith in the Club’s having
limited its annual membership to those of the Catholic faith. Subjecting the Club to the
Fair Housing Act will destroy its character as a religious community where like-minded
individuals are able to support one another, communally express their beliefs and model
their values to their children. I cannot believe that this was the kind of “wrong” which
the Fair Housing Act was drafted to remedy. From a policy viewpoint, the conclusion
reached by the majority here today may have far-reaching impact on groups such as
church camps, retreats and other organizations through which individuals associate to
practice their faith.
    
Discussion Questions: Columbus Country Club
98. Columbus Country Club holds that the defendant does not qualify for the “religious
organization” exemption of §3607(a). What test does the court develop for determining
whether a housing provider qualifies for that exemption? What evidence suggests the
test is met here? What evidence suggests it is not? Does the majority or the dissent
have the stronger argument on this point?
XII 31
99. What is the purpose of the religious exemption? Is it met in Columbus Country
Club? Note that the exemption allows qualified defendants to discriminate on the basis
of religion or sex or handicap, but not race or color or national origin. Does this make
any sense?
    
(C) Bona Fide Occupational Qualification (Title VII)
1. Statutory Provision (42 U.S.C.)
§2000e-1(e)(1) [I]t shall not be an unlawful employment practice for an employer to hire and
employ employees, for an employment agency to classify, or refer for employment any
individual, for a labor organization to classify its membership or to classify or refer for
employment any individual, or for an employer, labor organization, or joint labor-management
committee controlling apprenticeship or other training or retraining programs to admit or employ
any individual in any such program, on the basis of his religion, sex, or national origin in those
certain instances where religion, sex, or national origin is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or enterprise….
    
2. Religion as a BFOQ
PIME v. LOYOLA UNIVERSITY OF CHICAGO
803 F.2d 351 (7th Cir. 1986)
FAIRCHILD, Senior Circuit Judge. Appellant Jerrold S. Pime brought suit against
Loyola University of Chicago under Title VII…. for religious discrimination in the hiring
of tenure track professors in Loyola’s College of Arts and Sciences, Department of
Philosophy. The Department of Philosophy had passed a resolution reserving the next
three vacancies in tenure track teaching positions for Jesuits, members of the Society of
Jesus. … The district court judge, after a bench trial, granted judgment in favor of
Loyola after finding that being a Jesuit was a BFOQ. …
I. BACKGROUND. The Society of Jesus is a religious order of the Roman Catholic
Church. Its members, who are, with few exceptions, priests, are called Jesuits. The order
has been characterized by interest and particular energy in the promotion of education,
and has established twenty-eight universities in the United States. Jesuits are required to
complete a protracted course of training and to make perpetual vows. Once they accept
positions as professors they continue to incorporate their religious mission into their
professional work.
Loyola University of Chicago has a long Jesuit tradition. Since 1909 its legal
entity has been an Illinois not-for-profit corporation. Until 1970, it was governed by a
Board of Trustees, all members of which were Jesuits. It has become a large university,
consisting of ten schools and colleges, a medical center and a hospital. Presently 93% of
academic administrators are non-Jesuit, as are 94% of the teaching staff.
XII 32
In 1970, apparently to respond to the needs of growth, the Board amended the Bylaws, enlarging the Board to 23, but requiring that one more than one-third must be
Jesuits. The majority are in fact non-Jesuit. Amendment of the By-laws requires a twothirds vote. The By-laws provide, however, that the president, who is the principal
executive officer, must be a Jesuit.
Every undergraduate must take three Philosophy courses. About 75% of the
students come from Catholic backgrounds. There was testimony by the President that,
“I’m convinced that of all the things we say about Loyola, the most effective single
adjective in attracting students and alumni support and benefactors is its Jesuitness.”
In the fall of 1978, there were 31 tenure track positions in the Philosophy
Department. Seven had been held by Jesuits, but one had resigned and two more
retirements were imminent. On October 12, the department chairman reported to a
meeting of the department faculty as follows:
We anticipate 3 full-time faculty openings in the Philosophy Department beginning
September 1979. They are the position of Fr. Dehler and those of Fr. Grant and Fr. Loftus
after they retire at the end of the current academic year. There are two different kinds of
departmental needs which seem to bear heavily on the decision as to the kind of persons
we should seek to hire for these openings.
1. The first is a need which the Chairman voiced two years ago just after Fr. Dehler’s
resignation. That is, the need for an adequate Jesuit presence in the Department. We are a
Philosophy Department in a University with a Jesuit tradition. It is mainly by reason of
this tradition that philosophy has the importance it does in the education of Loyola
undergraduates. Therefore, it behooves us, however strongly we may feel about “the
autonomy of philosophy,” to acknowledge our association with this tradition. One very
basic and obvious way of making such acknowledgement is by insisting upon an
adequate Jesuit presence in the faculty of the Department. With the retirement of Father
Grant and Father Loftus, we shall be left with 4 out of 31 faculty positions occupied by
Jesuits. 4 out of 31 is not an adequate Jesuit presence in the Department. In the judgment
of the Chairman, it would be highly desirable to fill all three openings with professionally
competent Jesuit philosophers. And it is his recommendation that we do so if we can.
2. The second kind of departmental need is for faculty especially qualified to teach
courses in the following areas: a. Applied ethics, especially medical ethics. There is an
increasing student demand for such courses and for additional undergraduate course
offerings at the Medical School. b. Philosophy of Law. This is one of the most popular of
our 300-level course offerings. It needs to be offered annually both at Lake Shore
Campus and Water Tower Campus and there seems to be some desire that we offer it
annually in the Law School. c. Logic. There is an exceedingly heavy student enrollment
at both Lake Shore Campus and Water Tower Campus. Additional sections of courses in
logic should be offered on each campus.
Consequently, we should seek persons who have special competence and interest in
teaching courses in these areas. The Chairman’s recommendation is that we seek to hire
persons who will help teach in these areas.
These two kinds of needs are different though not incompatible. The Chairman’s
recommendations as to hiring is the following:
That for each of these 3 positions we seek to hire a professionally competent Jesuit
philosopher-preferably a young Jesuit with competence to teach in one or several of the areas
XII 33
mentioned above.
At the November 30 meeting, the following resolution was adopted:
That for each of the 3 positions we seek to hire a professionally competent Jesuit
philosopher-preferably a young Jesuit with competence to teach in one or several of the
following areas: a) applied ethics, especially medical ethics; b) philosophy of law; and c)
logic; and that if we should be unable to hire such, we hire temporary full-time person(s)
with special competence to teach in one or several of these areas.
Plaintiff Pime, a Jew, had been employed in 1976 as a part-time lecturer in the
department. He taught several courses. He expected to receive his doctorate in June, 1979
and had received indications of approval of his work. He knew of the resolution of
November 30, and asked the department chairman when there would be a full-time tenure
track position for him. The chairman said he saw nothing in the way of a position for
Pime in the next three or four years. Disappointed, Pime left Loyola after the spring
semester.
He filed a timely charge of employment discrimination with EEOC and received
notice of his right-to-sue. Then he filed this action.FN1
FN1. Even though appellant did not formally apply for a tenure track position no standing
question arises. One does not have to apply for a job when it is obvious that it would be a futile
act. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52
L.Ed.2d 396 (1977); Berkman v. City of New York, 705 F.2d 584 (2nd Cir.1983).
There is no hint of invidious action against Pime on account of his religion. The
faculty resolution excluded every non-Jesuit from consideration, whether of the Catholic
faith or otherwise. We shall assume, however, that because Pime’s faith would prevent
his being a Jesuit, he has a claim of discrimination on account of religion.
II. BFOQ. …The BFOQ involved in this case is membership in a religious order of a
particular faith. There is evidence of the relationship of the order to Loyola, and that
Jesuit “presence” is important to the successful operation of the university. It appears to
be significant to the educational tradition and character of the institution that students be
assured a degree of contact with teachers who have received the training and accepted the
obligations which are essential to membership in the Society of Jesus. It requires more to
be a Jesuit than just adherence to the Catholic faith, and it seems wholly reasonable to
believe that the educational experience at Loyola would be different if Jesuit presence
were not maintained. As priests, Jesuits perform rites and sacraments, and counsel
members of the university community, including students, faculty, and staff. One witness
expressed the objective as keeping a presence “so that students would occasionally
encounter a Jesuit.”
It is true that it has not been shown that Jesuit training is a superior academic
qualification, applying objective criteria, to teach the particular courses. It is also true that
in looking at claims of BFOQ, courts have considered only the content of the particular
job at issue. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613,
622, 83 L.Ed.2d 523 (1985). Yet it seems to us that here the evidence supports the more
general proposition that having a Jesuit presence in the Philosophy faculty is “reasonably
necessary to the normal operation” of the enterprise, and that fixing the number at seven
out of 31 is a reasonable determination.
XII 34
Judge Leighton found as follows:
Clearly, religion, the fact that the three full-time vacancies were reserved for Jesuits,
persons who were Catholics, was the basis for the decision which the tenured faculty
made on October 12, 1978, at the general meeting of the Department of Philosophy. In
good faith, Loyola, through its tenured faculty in the Department of Philosophy, decided
that being a Jesuit, again a matter of religion, was to be required of those who were to fill
the three vacancies. This was a bona fide determination of qualification for the position.
Finally, the full-time faculty determined that it was necessary for the future of the
department, and for Loyola, that a “Jesuit presence” in the university be maintained, and
that the designated areas of teaching be done by competent Jesuit philosophers.
Therefore, Loyola qualifies for the [BFOQ] exemption....
The finding is not clearly erroneous. The judgment appealed from is AFFIRMED.
POSNER, Circuit Judge, concurring. I agree that Pime must lose this Title VII case.
But my ground is different from and narrower than my brethren’s ground, and although
not emphasized by the defendant is sufficiently argued that we need not treat it as waived.
Pime was turned down for a tenure-track position in Loyola’s philosophy
department not because he is a Jew, not because he is not a Catholic, but because he is
not a member of the Jesuit order. I therefore do not think he has been deprived of an
employment opportunity because of his religion. 42 U.S.C. § 2000e-2(a). It is true that
you cannot be a Jesuit if you are not a Catholic; but only a tiny fraction of Catholics are
Jesuits. If Pime were a Catholic but not a Jesuit he would be just as ineligible for the
position as he is being a Jew, yet it would be odd indeed to accuse Loyola of
discriminating against Catholics because it wanted to reserve some positions in its
philosophy department for Jesuits, thus excluding most Catholics from consideration. Not
only is Pime’s being Jewish an adventitious circumstance in this case but so is the fact
that Loyola is a Catholic school. It is hard to believe that the philosophy department of
the University of Chicago-or of Brandeis University-would be guilty of a prima facie
violation of Title VII if it reserved a few slots for Jesuits, believing that the Jesuit point of
view on philosophy was one to which its students should be exposed; and Loyola should
have the same right. To take another example, suppose Loyola reserved a slot for a rabbi,
to teach Jewish theology; would this be a prima facie violation of Title VII? I cannot
believe it would be; and if this conclusion is right it casts doubt on my brethren’s
assumption that the mere fact of reserving one or more slots for members of a religious
order establishes a prima facie case.
Of course my argument would fall to the ground if the Jesuit order were itself a
religion within the meaning of Title VII. But the statute seems to use the term in its
ordinary sense, see 42 U.S.C. § 2000e(j) (“The term ‘religion’ includes all aspects of
religious observance and practice, as well as belief”), and in ordinary language Jesuits are
a Catholic order, not a separate religion.
No cases bear directly on my argument but several provide analogies. In General
Electric Co. v. Gilbert, 429 U.S. 125, 97 S.Ct. 401, 50 L.Ed.2d 343 (1976), the Supreme
Court held that an employer’s denying benefits under its disability plan to women who
missed work because of pregnancy was not sex discrimination under Title VII, even
though all pregnant persons are female; and while Congress promptly undid the result it
did so by a specific grant of rights to pregnant women. See 42 U.S.C. § 2000e(k), added
XII 35
by Pub.L. 95-555, Oct. 31, 1978, 92 Stat. 2076. In holding that voluntary affirmative
action for blacks does not always violate Title VII even prima facie, United Steelworkers
of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), established
that not every racial preference is to be equated to a racial exclusion. Granted, the idea
behind affirmative action is not to benefit black people per se but to eliminate what are
believed to be consequences of past discrimination against blacks; and while there have
been times and places where Jesuits were persecuted, sometimes ferociously, Loyola
makes no argument for its Jesuit quota on the basis of a history of discrimination. On the
other hand the reservation of a few tenure slots for Jesuits in a private university founded
by and to some extent still controlled by Jesuits (to what extent I shall consider later) is
less offensive than a racial quota in a steel mill or a fire department. And then there is
Massachusetts’ veterans-preference law, held in Personnel Administrator v. Feeney, 442
U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979), not to violate the equal protection clause
of the Fourteenth Amendment even though 98 percent of the veterans in Massachusetts
were male and, as a practical matter-given past policies toward recruitment of women for
the armed forces-it would have been impossible for most women to have become
veterans. The equal protection clause, it is true, is limited to intentional discrimination, or
as it is sometimes called disparate treatment (these are synonymous terms, see American
Nurses’ Ass’n v. Illinois, 783 F.2d 716, 722 (7th Cir.1986)), whereas Title VII reaches
not only disparate treatment but also disparate impact. But we shall see in a moment that
Pime has no disparate-impact claim.
Of course if Loyola had reserved the seven slots for Jesuits because it wanted to
keep Jews or other non-Catholics out, it would be guilty of discriminating against Pime
on religious grounds. But there is no suggestion of pretext. Loyola really does want
Jesuits in these positions and really would have turned down-for all we know did turn
down-Catholic applicants who were not Jesuits. It thus is not guilty, even prima facie, of
intentional discrimination or disparate treatment.
Pime has not tried to make out a case of disparate impact. An employment
practice that on its face is neutral with respect to matters of race, religion, and sex (for
example, a height requirement or an educational requirement) can be invalidated under
Title VII upon a showing that it bears disproportionately and unjustifiably on a protected
group. See, e.g., Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786
(1977). Certainly the same showing should be good enough when as in this case the
criterion for employment, though neither applicable to all slots within the particular
employing unit (here the philosophy department) nor stated in terms of adherence to a
faith, operates to disqualify all nonadherents (although not all Catholics are eligible, all
non-Catholics are ineligible). If Loyola refused to hire any but Jesuits to teach philosophy
the effect might well be to exclude Jews and other non-Catholics disproportionately, for
only Catholics can be Jesuits. But only seven positions out of 31 are at issue, and while
there was testimony that no Jew has ever been hired for a tenure-track position in the
philosophy department, Pime has not presented evidence of discrimination against Jews
as such. The discrimination is against non-Catholics; but the record is silent on what
fraction of the 24 positions not reserved for Jesuits are filled by non-Catholics.
As Pime has not made out a prima facie case of discrimination, we need not
decide whether Loyola could rebut such a case by proving either that Loyola is a
XII 36
religious employer (the defense that the district court rejected, but that Loyola has
renewed on appeal) or that being a Jesuit is a bona fide occupational qualification (the
defense that the district court accepted, and that provides the ground of the majority
opinion in this court). By treating the case as if it involved Loyola’s refusing to consider
non-Catholics for the positions in question, yet exonerating Loyola on the basis of the
statutory defense of bona fide occupational qualification, my brethren are led to read that
defense very broadly. I am not prepared to say that their reading is wrong, but I am
troubled by it and would prefer to avoid resting decision on it.
The statute allows an employer to employ a person on the basis of his religion “in
those certain instances where religion ... is a bona fide occupational qualification
reasonably necessary to the normal operation of that particular business or enterprise.” 42
U.S.C. § 2000e-2(e)(1). Loyola wants to reserve seven of 31 tenure slots in the
philosophy department for Jesuits, without specifying any subject-matter for the seven.
There is no course that it believes only a Jesuit qualified to teach; it wants Jesuits in the
department in order to maintain (as my brethren put it) “the educational tradition and
character of the institution.” Although a worthy objective, this may not create the tight fit
that the statute appears to require by the words “reasonably necessary.” No doubt it
would be nice to have a minimum number of Jesuits in a school with a strong Jesuit
tradition but by this type of reasoning the concept of bona fide occupational qualification
could expand almost without limit. On the same type of showing made here, a men’s
clothing store could claim a right to hire only men as salesmen in order to maintain the
character of the store, or Ivy League universities the right to maintain a ceiling on the
number of Jews in some departments in order to maintain the traditional character of
those departments and of the university. Yet such results would be inconsistent with the
principle that the defense of bona fide occupational qualification “was in fact meant to be
an extremely narrow exception.” Dothard v. Rawlinson, supra, 433 U.S. at 334, 97 S.Ct.
at 2729. See, e.g., Diaz v. Pan American World Airways, Inc., 442 F.2d 385, 389 (5th
Cir.1971).
The Senate floor managers had, however, offered as an example of a bona fide
occupational qualification “the preference of a business which seeks the patronage of
members of particular religious groups for a salesman of that religion,” 110 Cong.Rec.
7213 (1964), and maybe an analogy can be drawn to Loyola’s desire to maintain a strong
Jesuit presence in a philosophy department most of whose students presumably are
Catholics, for whom the Jesuit viewpoint on philosophy holds a special interest. Such a
stipulation, moreover, is much less offensive than the examples I gave in the previous
paragraph. Indeed, I think it is totally inoffensive-but for a reason which demonstrates the
strength of my preferred ground for decision. Loyola is not saying that only Catholics
may have permanent appointments in its philosophy department or even that seven slots
shall be reserved for Catholics; the preference is not for Catholics as such but for persons
having a particular training and outlook which entail their being Catholic. The defense of
bona fide occupational qualification is narrowly interpreted in part because it is a defense
to express discrimination on grounds of religion, sex, or national origin, and Loyola is not
guilty of such discrimination.
A curious feature of the defense is that like the prima facie prohibition it speaks of
“religion” and thus seems to contemplate situations where the preference is for adherents
XII 37
to a particular faith, such as Catholics, rather than members of a particular religious
order, such as Jesuits. Contemplating as it does a more far-reaching exemption than
needed in this case, it naturally requires a more stringent showing than appropriate for
this much milder “discrimination.” That is why rather than stretching the exemption I
would prefer to interpret the prima facie case more narrowly.
If I am wrong in thinking that Loyola is not guilty of prima facie discrimination, I
would give serious consideration to interpreting the defense of bona fide occupational
qualification broadly enough to reach what Loyola has done, for it seems so remote from
any concern that Congress had when it passed Title VII. But it is not necessary to decide
whether Loyola has made out this defense and I think it would be the better part of valor
to forgo reliance on it and place decision on the narrower ground. For reasons having
nothing to do with antipathy to Jews or other non-Catholics, Loyola wants to have a
certain proportion of its philosophy professors drawn from a particular religious order to
which, as I have said, most Catholics do not belong and could not belong, because they
would be either unable to satisfy the demanding entrance requirements or unwilling to
take the vows of poverty, chastity, and obedience. In giving a modest and thoroughly
understandable preference to members of this order, in circumstances that rebut any
inference of invidious discrimination, Loyola is not discriminating against members of
any religious faith within the meaning of Title VII. …
    
E.E.O.C. v. Kamehameha Schools/Bishop Estate
990 F.2d 458 (9th Cir. 1993)
[The facts and the rest of the analysis in this case are found in Part (A)(2) of this week’s
materials]
IV. Bona Fide Occupational Qualification. The district court concluded that adherence
to the Protestant faith was a bona fide occupational requirement for teaching at the
Schools and therefore the Schools were exempt under § 2000e-2(e)(1).
EEOC and the Schools stipulated there is nothing “specific about the subject
matter of any given teacher position ... that would make a teacher being Protestant a bona
fide occupational qualification” [BFOQ].FN15 EEOC claims this stipulation is dispositive
in light of the holding in U.A.W. v. Johnson Controls, Inc., 499 U.S. 187, 111 S.Ct. 1196,
113 L.Ed.2d 158 (1991), that to qualify as a BFOQ a discriminatory job qualification
must “affect an employee’s ability to do the job,” and “must relate to the ‘essence’ or to
the ‘central mission of the employer’s business.’ ” Id. 499 U.S. at ----, 111 S.Ct. at 1205
(citations omitted). The Protestant-only requirement, EEOC argues, has no relationship to
a teacher’s ability to perform the job of teaching secular subjects-in this case, the French
language.
FN15. The stipulation reads:
[The Schools] contend[ ] that the Will of Mrs. Bishop by its language creates a bona fide
occupational qualification for all teachers to be of the Protestant religion in order that there be a
Protestant presence at Kamehameha Schools. [The Schools are] not contending that, apart from
their status as teachers generally, there is anything specific about the subject matter of any given
teacher position (such as English, science, mathematics) ... that would make a teacher being
Protestant a bona fide occupational qualification within the meaning of this exemption.
XII 38
EEOC concedes that being Protestant is a bona fide occupational qualification for the Chaplain,
Associate Chaplain, and religious education teachers.
The district court held the requirement related to the teachers’ ability to perform
their job because “the essence or central mission of [the Schools] is to provide native
Hawaiians with an education from the Protestant point of view.... Similarly, the essence
or central mission of the teachers’ jobs is to provide that viewpoint.” 780 F.Supp. at
1323. The district court defined the central mission of the Schools too narrowly. The
record demonstrates the Schools have embraced a broad mandate to help native
Hawaiians “participate in contemporary society for a rewarding and productive life” by
providing a solid education in traditional secular subjects, instruction in Hawaiian culture
and history, and the moral guidance necessary to help students “[d]efine a system of
values.” FN16 The requirement of Protestant affiliation in a teacher’s past is largely
irrelevant to this mission. There is no basis in the record for concluding a nominally
Protestant teacher will provide superior instruction or serve as a better moral guide to
students. See Johnson Controls, 499 U.S. at ----, 111 S.Ct. at 1205 (employer must show
“a high correlation” between a qualification and ability to perform job functions).
FN16. This description of the Schools’ purpose is consistent with Mrs. Bishop’s desire that the
Schools “provide first and chiefly a good education in the common English branches, and also
instruction in morals and in such useful knowledge as may tend to make good and industrious
men and women.” See note 1, supra.
Except for the Schools’ religious education teachers (as to whom Protestant
affiliation is conceded to be a BFOQ), teachers at the Schools provide instruction in
traditional secular subjects in the traditional secular way. There is nothing to suggest that
adherence to the Protestant faith is essential to the performance of this job. Teachers in
kindergarten through eighth grade lead their classes in prayer, but there is no evidence the
Schools review the content of the prayer for conformity to Protestant doctrine or that nonProtestants are not qualified to lead students in prayer. The Schools also expect teachers
to serve as role models and provide general instruction in morals, but they do not review
or inquire into their teachers’ personal religious life or general moral principles, and do
not inquire whether the teachers integrate Protestantism into their teaching. The Schools
identify no skills or aptitudes which persons affiliated with the Protestant tradition
possess as a class that are essential to the performance of those job functions. Moreover,
the record indicates the Protestant affiliation requirement is nominal-if a prospective
teacher represents he or she is Protestant, the prospective teacher is presumed able to lead
prayers and serve as a moral role model.FN17
FN17. The Schools do not apply the Protestant-only requirement to teachers in programs
receiving federal funding, although the source of funding has no apparent relationship to the
qualities required to teach such courses.
The Schools rely on the Seventh Circuit’s decision in Pime v. Loyola Univ. of
Chicago, 803 F.2d 351 (7th Cir.1986), a case decided before Johnson Controls, to argue
the Protestant-only requirement relates to the “essence” of the Schools because it is
XII 39
necessary to creation of a “Protestant presence” on campus. The district court agreed,
holding “the ‘Protestant presence’ is significant to the educational and normal operation”
of the Schools. 780 F.Supp. at 1321.
EEOC contends Pime is inconsistent with Johnson Controls. Even if Pime were
an accurate statement of the law in light of Johnson Controls, however, it could not bear
the weight the Schools would have it carry. Pime approved a Jesuit “presence” of four
positions in the Philosophy Department of Loyola University, a school with “a long Jesuit
tradition” and a largely Catholic student body. Id. at 352. The court focused on the
tradition and character of the school and the desire of administrators “ ‘that students
would occasionally encounter a Jesuit.’ ” Id. at 354 (emphasis added). The court stated it
was “wholly reasonable to believe that the educational experience at Loyola would be
different if a Jesuit presence were not maintained.” Id.
In this case, the Schools will have a Protestant “presence” equal to or greater than
the Jesuit “presence” at Loyola even if the proportion of Protestants on the faculty falls
well below one hundred percent, and there is no indication the educational experience at
the Schools will be any different if some of the teachers are not Protestants. Moreover,
the Schools seek to retain a wholly Protestant faculty at a school whose student body has
a majority of non-Protestant students and whose tradition and character is rooted more in
Hawaiian history and culture than in specific principles of Protestantism.
The fact that the Protestant-only requirement appears in Mrs. Bishop’s will cannot
in itself alter the result. Cf. Rosenfeld v. Southern Pacific Co., 444 F.2d 1219, 1225-26
(9th Cir.1971) (compliance with state law does not transform a discriminatory practice
into a BFOQ). The will does not establish a religious school, nor stipulate any relevant
qualifications Protestant teachers would bring to teaching positions at the Schools. The
will suggests only that Mrs. Bishop was stating a personal preference based on her own
experience in missionary schools. This kind of personal preference is not a BFOQ when
expressed by a living employer, and there is no reason to reach a different conclusion
because the preference is expressed posthumously. FN18
FN18. We also reject the suggestion that Mrs. Bishop’s will creates a BFOQ because failure to
comply with its provisions may violate Hawaii law and void the trust. Hawaii courts approved the
merger of the separate boys and girls schools established by the will because a change in
circumstances warranted a departure from the will. Collins v. Tavares, 37 Haw. 109 (1945); see
also Murray v. Kobayashi, 50 Haw. 104, 106, 431 P.2d 940 (1967) (“Mrs. Bishop did not direct
the trustees to establish religious schools”). These cases suggest Hawaii courts would also
approve an involuntary departure from the Protestant-only requirement to comply with Title VII.
    
RASUL v. DISTRICT OF COLUMBIA
680 F. Supp. 436 (D.D.C. 1988)
JOHN H. PRATT, District Judge. Plaintiff, a Muslim minister, brings this action
against the District of Columbia Department of Corrections (“Department”) and one of its
officers, charging that the Department denied him a position as prison chaplain because
of his religious affiliation. Plaintiff was not considered for this position because of a
XII 40
recently abandoned policy of the Department under which chaplains were recruited and
hired on a denominational basis. [We conclude that] defendants’ policy violated Title
VII’s proscription against religious discrimination. …
BACKGROUND. … Lorton Reformatory is a large prison compound located in Lorton,
Virginia, and administered by the District of Columbia. For years the Department has
solicited volunteers to administer to the religious needs of inmates incarcerated at Lorton
and at the District of Columbia Detention Facility. In addition, and as explained more
fully below, the Department hires chaplains to serve the various sections, or “facilities,”
within Lorton. These chaplains organize and implement a religious program for those
inmates who request such services.
Mansour Rasul is a Muslim minister, or “imam,” who has received advanced
degrees in both theology and criminal justice. In April 1983, Rasul signed an agreement
with the Department authorizing him to provide volunteer services to Lorton inmates. In
August of that year, Rasul applied to the Department to fill a chaplain vacancy at the
Central Facility in Lorton which had been announced on July 29, 1983. Although the
vacancy announcement stated that “[a]ll qualified candidates will receive consideration
without regard to ... religion,” it nonetheless specified that a “Protestant Chaplain” was
being sought. Moreover, the announcement stipulated that
[a]pplicants must be Ordained Protestant Minister with a Master’s of Divinity, as
required by the designated Protestant faith. In addition, applicants must have at least three
years of specialized experience in planning, directing, and maintaining a Protestant
religious program.
In a paragraph entitled “Brief Statement of Duties,” the announcement explained that the
successful applicant would be responsible for “planning, directing and maintaining a total
Religious Program for the Central Facility.” Id. The announcement proceeded to
delineate specific duties of the position in terms which, with two exceptions, were not
geared to the applicant’s particular religious affiliation.FN2
FN2. The full text of the description of job responsibilities provided as follows:
Incumbent is responsible for planning, directing and maintaining a total Religious Program
for the Central Facility. Specific duties include the following: (1) Establishes regularly
scheduled seasonal and occasional services for inmates and offers consolation and services to
inmates and their families during times of crisis; (2) Conducts instructional class aimed at
developing strong interpersonal relationship with inmates as a [sic] aide in redirection of lives
and amelioration of the maladjusted; (3) Participates with the Administrator and other
officials in the Department in policy determination with regards to religious activities, matter
of freedom of Religion and conscience; (4) Conducts orientation programs for inmates of the
designated Faith to interpret for them the role of Religion, ethics, and morals in their
rehabilitation; (5) Prepares lectures and addreses for presentation in the community for the
purposes of interpreting the role of his/her Designated Religion in the Department as well as
the role of the community in relationships to persons convicted of crimes.
Only the final two enumerated duties refer to the “Designated faith” of the applicant.
On September 5, 1983, the vacancy announcement was reissued in corrected form
to advertise two vacancies instead of one. Of the applicants for these posts, personnel
specialists in the Department compiled a list of five applicants deemed qualified.
XII 41
Plaintiff’s name did not appear on the list. Defendant James F. Palmer, Director of the
Department, reviewed the list and, in November 1983, selected two Protestant ministers
to fill the chaplain vacancies. Thereafter, by letter dated January 19, 1984, Palmer
notified Rasul that he was not considered for the chaplain positions because “[t]he
vacancy announcement specified that the Department was seeking to fill a Protestant
Chaplain position,” and that “[a]s a Muslim Imam you were not eligible for
consideration....”
At the time these two vacancies were advertized, it was the Department’s “policy”
to recruit chaplains on a denominational basis. Def. Memo at 3. On December 12, 1983,
however-one month after the vacancies were filled-Palmer circulated a Department
memorandum announcing a “policy of advertising for Chaplain positions on a nondenominational basis.” Def. Memo at 4; Def. Memo Ex. L. Pursuant to that policy, three
additional chaplain vacancies were announced on July 25, 1984. Plaintiff applied, and
was selected to fill one of these positions in October 1984, approximately fourteen
months after the denial of his original application. Plaintiff continues to hold this
position, and has consistently received superior performance evaluations. …
DISCUSSION. … Defendants submit that affiliation with the Protestant denomination is
a BFOQ for employment as a chaplain at Lorton. It is plain from the [language] of
section 703(e)(1) that the BFOQ exception applies to religious discrimination cases.
Although there is a notable paucity of case law confronting this exception in the religious
context, those courts that have considered the matter have applied the same principles
that govern any other BFOQ claim. See, e.g., Pime v. Loyola University, 803 F.2d 351
(7th Cir.1986) (BFOQ exception applies to Jesuit-affiliated university seeking only
Jesuits for designated faculty positions); Abrams v. Baylor College of Medicine, 581
F.Supp. 1570 (S.D.Tex.1984) (policy excluding Jews from surgical teams sent to hospital
in Saudi Arabia does not satisfy BFOQ exception), aff’d, 805 F.2d 528 (5th Cir.1986);
Kern v. Dynalectron Corp., 577 F.Supp. 1196 (N.D.Tex.1983) (requirement that pilots
required to fly into Mecca, Saudi Arabia convert to Islam satisfies BFOQ exception),
aff’d without opinion, 746 F.2d 810 (5th Cir.1984). See also 29 C.F.R. § 1605.1 (1987)
(statutory framework for evaluating necessity of religious qualifications).
Thus, we begin our analysis well aware that “the bfoq exception was in fact meant
to be an extremely narrow exception to the general prohibition of discrimination”
enunciated in Title VII. Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 2729,
53 L.Ed.2d 786 (1977) (considering case of alleged sex discrimination). Moreover,
defendants, the employers in this case, bear the burden of demonstrating that
denominational qualifications for the prison chaplain positions are not only relevant to
the job, Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158
(1971), but constitute the very “essence of the business operation....” Diaz v. Pan
American World Airways, 442 F.2d 385, 388 (5th Cir.1971) (emphasis in original), cert.
denied, 404 U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971); Dothard, 433 U.S. at 333, 97
S.Ct. at 2728 (quoting Diaz with approval).
We note, first, that the term “chaplain” has a denominational connotation. A
chaplain has been defined as “a minister, priest, or rabbi serving with the armed forces, or
in a prison, hospital, etc.” Webster’s New World Dictionary 238 (2d ed. 1972). By
definition, a chaplain is first of all a “clergyman.” Id. On first impression, therefore, it
XII 42
might seem illogical for the District to select prison chaplains on anything other than a
denominational basis. Given the widely varying beliefs and practices of the various
religious denominations, and the many tenets and ceremonies unique to each, one recoils
at the thought of hiring chaplains on a generic basis, without regard to their chosen
religious affiliation.
On closer examination of the role played by the Department’s prison chaplains,
however, it becomes evident that the defendants have not sustained their burden of
demonstrating the necessity of a denominational hiring policy. Indeed, a hard look at the
realities of the actual practices at Lorton suggests the contrary. First, the nature of the
chaplain’s duties suggest that an applicant’s religious affiliation is, at best, a matter of
secondary importance. Lorton chaplains are recruited and hired on a facility-wide basis,
and are entrusted with the task of “planning, directing, and maintaining a total Religion
program” for all inmates in a particular section who request such services, whatever their
respective denominations might be. … This does not mean, of course, that chaplains
administer to every religious need of each inmate within their jurisdiction. As both a
volunteer imam and a chaplain, for instance, Rasul has routinely presided over worship
services for Lorton’s Muslim inmates. On the other hand, he has never, and could never,
celebrate a Catholic Mass, or perform baptism rites, or conduct a Jewish bar mitzvah
ceremony. For such services, bound up as they are in the tenets and customs of their
respective religions, chaplains enlist the services of volunteers or other prison employees
who adhere to the appropriate faith. FN5
FN5. Although Rasul cannot preside over Protestant religious services, in his present capacity as
chaplain he “coordinate[s]” more Protestant prayer sessions than those of any other
denomination.
Conspicuously absent from the vacancy announcement’s list of specified duties is
any suggestion that chaplains are to preside over all services within their jurisdiction, or
that their activities are governed by their denominational preferences.FN6 In fact the scope
of a Lorton chaplain’s duties is much broader. Among his manifold responsibilities, a
chaplain “[e]stablishes regularly scheduled seasonal and occasional services,” but does
not necessarily preside over them; “[c]onducts instructional class[es] aimed at developing
strong interpersonal relationship[s]”; “[p]articipates ... in policy determination with
regards to religious activities”; and “[p]repares lectures and addresses for presentation in
the community.” One cannot gainsay the importance of such activities to the religious life
of an adherent. Defendants have not even hinted, however, that satisfactory performance
of these multiple and varied tasks depends upon the chaplain’s particular religious
beliefs. Indeed, many, if not most, of these functions presumably could be performed by a
religious guidance counselor or administrator in lieu of a priest, rabbi, imam or minister.
FN6. The vacancy announcement noted that chaplains “offer [ ] consolation and services to
inmates and their families during times of crisis.” This passage does not, however, refer to the
“designated Faith” of the applicant, nor can it be read to mandate or permit chaplains to perform
religious worship services for inmates of varying denominations.
XII 43
In defense of its hiring policy, the Department claims that it had to recruit
chaplains on a denominational basis “to insure that all of the major religions were
represented,” and to “adequately accommodate the religious needs of inmates.” Whatever
the superficial merit of these claims,FN7 they obviously failed to impress the Department
itself, which abandoned the denominational hiring policy one month after the vacancies
at issue were filled. At least one court had noted that “[f]or an occupational qualification
to be ‘bona fide,’ it must be just as valid and necessary one day as it is the next.” Garrett,
734 F.2d at 624. Even assuming that this is the unusual instance in which a job criteria is
a BFOQ one day and not the next, defendants have offered no reason for the dramatic
policy reversal. Nor have defendants so much as hinted that the change in policy has in
any way hindered their attempts to provide satisfactory religious assistance to Lorton
inmates. Cf. Garrett, 734 F.2d at 624 (in sex discrimination case involving abandoned
rule barring females from employment in correctional facilities, “defendants came forth
with no evidence that the use of female correctional officers ... following the regulation
change ... has in any way hindered the efficient operation of the Okaloosa County Jail”).
Defendants, in short, are apparently at a loss in defending a policy to which the
Department itself no longer subscribes.
FN7. It is worth noting, for instance, that of the nine chaplains employed at Lorton at the time the
parties’ first round of pleadings were filed, see supra n. 1, four were Protestants, two were
Catholics, one was Islamic, and two (including Rasul) were hired on a “non-denominational”
basis. Rasul Aff. ¶ 6. This would suggest that the Protestant denomination was, at the very least,
“represented” among chaplains. Meanwhile, the Department lists no Jewish clergy among its
chaplains, suggesting, if nothing else, that at least one “major religion” has not been
“represented” on the prison’s employment rolls. The Department’s policy might stand on more
solid ground if it claimed to recruit chaplains in some proportion to the denominational
breakdown of Lorton inmates. The Department does not make such a claim; indeed, defendants
insist that “the number of Muslim inmates has absolutely no bearing on claims asserted by the
plaintiff,” himself a Muslim. Defendant’s Reply at 3 n. 2. We are entitled to assume, then, that the
number of Protestant inmates in the Central Facility and in the entire Lorton population was
equally irrelevant to prison hiring decisions.
For these reasons, defendants have not sustained their burden of demonstrating
that Protestantism was of the very “essence” of the chaplain positions sought by Rasul.
Dothard, 433 U.S. at 334, 97 S.Ct. at 2729. Consequently, the aforementioned vacancy
announcement is suspect. The text of section 703(e) requires that we analyze the narrow
BFOQ exception pursuant to a “business necessity test, not a business convenience test.”
Diaz, 442 F.2d at 388 (emphasis in original); 42 U.S.C. § 2000e-2(e)(1). Despite broadbased discovery and the filing of two potentially dispositive motions, defendants have yet
to demonstrate the necessity for their hiring policy, nor have they articulated any weighty
basis for preferring certain denominations over others in prison hiring decisions. Put
somewhat bluntly, we are unaware that Protestant inmates are going hungry for want of
religious guidance, or that the current non-denominational hiring policy has had any
appreciable effect, either positive or negative, on the religious life of Lorton inmates.
At the risk of repetition, we pause here to emphasize the narrowness of our
holding. Our conclusion, simply put, is that defendants have not and cannot demonstrate
that at the time Rasul first applied for chaplain vacancies Protestantism was a BFOQ for
XII 44
satisfactorily filling those positions. We also note the limited effect of this decision; we
have no occasion to order the District to alter its hiring policy, for it has already done so.
(The Department has, to use Palmer’s own words, “remedied this situation.” Pltf. Opp.
Ex. 2.) Finally, we expressly do not foreclose the possibility that denomination might
well have been, and may someday or somewhere be, a BFOQ for prison chaplains.
Indeed, one can well imagine contexts in which religious affiliation might prove
fundamentally relevant to a chaplain hiring policy. But the same cannot be said in the
present context, in which the policy which served to foreclose Rasul from consideration
for a chaplain post was soon thereafter discarded with no noticeable impact on the
religious life of inmates. …
    
Discussion Questions: Religion as a BFOQ
100. Are the three cases in this section correctly decided? Are they consistent with one
another?
101. Is Judge Posner correct in Pime that the discrimination at issue was not religious?
102. Would the result change in Kamehameha if the Hawaiian courts ruled that the trust
would fail if the school hired non-Protestant teachers (see footnote 18)?
103. Under the analysis in Rasul, under what circumstances would a prison be
permitted to hire chaplains with denominational requirements?
   
3. Religion as a Basis for Sex-Related BFOQs
DOLTER v. WAHLERT HIGH SCHOOL
483 F. Supp. 266 (N.D. Iowa 1980)
McMANUS, Chief Judge. …
Plaintiff brought this action pursuant to Title VII …
alleging sex discrimination resulting in termination of her employment as an English
teacher at Wahlert High School in Dubuque, Iowa. … The specific allegations of the
complaint relevant to defendant’s motion to dismiss are that prior to February, 1978,
plaintiff was employed as a teacher by defendant, was single and became pregnant. In
February, 1978, she informed defendant of her pregnancy; and in March, 1978, both
parties entered into a renewal of contract for her to teach in defendant’s school during the
1978-79 school year in spite of her pregnancy. In June, 1978, defendant refused to honor
that contract and terminated her employment allegedly on the grounds she was unmarried
and pregnant. Plaintiff claims this constitutes sex discrimination.
Defendant moves to dismiss for failure to state a claim or for summary judgment
on two separate grounds. First, defendant contends that since it is a private Roman
Catholic High School affiliated with and under the auspices of the Roman Catholic
Archdiocese of Dubuque, Iowa, any assertion of jurisdiction over it pursuant to Title VII
would be in violation of the doctrine of separation of church and state as embodied in the
Establishment and Free Exercise of Religion Clauses of the First Amendment to the
United States Constitution. Second, defendant contends that pursuant to the “bona fide
occupational qualifications” (bfoq) exception to Title VII, 42 U.S.C. §2000e-2(e),
XII 45
defendant was entitled to set standards of morality for its teaching employees that accord
with moral and religious precepts of the Roman Catholic Church; and that since
defendant terminated plaintiff for breach of those standards it cannot be held liable to her
for sex discrimination.
First Amendment Issue. In arguing that Title VII does not apply to Catholic schools
and that if construed to apply to such schools it would violate the first amendment,
defendant places singular and special reliance on the recent United States Supreme Court
opinion in National Labor Relations Board v. The Catholic Bishop of Chicago, 440 U.S.
490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). In that case the Supreme Court held that
schools operated by the Catholic Church to teach both religious and secular subjects are
not within the jurisdiction granted by the National Labor Relations Act (NLRA), thus
precluding the issuance of orders against such schools by the National Labor Relations
Board. In so holding, the Court did not state that the NLRA violated the first amendment,
although it noted constitutional problems might exist if the Act were construed to apply
to labor relations in sectarian schools. What the Court did conclude was that Congress
had not clearly expressed its intent to have the NLRA apply to labor relations in that
context. Failing to find such clear and express congressional intent, the Court construed
the NLRA not to apply, thus avoiding the first amendment question.
Thus, the Supreme Court in Catholic Bishop of Chicago set forth a two-pronged
analysis for courts to apply when deciding issues such as those here raised by defendant.
First, a court must decide whether Congress has “clearly expressed” its “affirmative
intention” to have Title VII apply to Catholic or other sectarian schools. Id. at 499, 50206. … If the court finds such congressional intent, it must next decide whether
application of Title VII’s anti-discrimination strictures to Catholic or other sectarian
schools would excessively entangle government with the religious mission of the school,
thereby violating the religion clauses of the first amendment. Id. at 499. See also Lemon
v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).
A. Congressional Intention. …Plaintiff claims sex discrimination because of her
pregnancy. 42 U.S.C. §2000e(k), effective October 31, 1978, provides in pertinent part:
(k) The terms “because of sex” or “on the basis of sex” include, but are not limited to,
because of or on the basis of pregnancy . . . ; and women affected by pregnancy . . . shall
be treated the same for all employment-related purposes . . . as other persons not so
affected but similar in their ability or inability to work . . . .
However, 42 U.S.C. §2000e-1 provides certain Religious exemptions from coverage
under the Act. It provides in pertinent part:
This subchapter (Title VII) shall not apply to an employer . . . or to a religious
corporation, association, educational institution, or society with respect to the
employment of individuals of a particular religion to perform work connected with the
carrying on by such corporation, association, educational institution, or society of its
activities. (Emphasis added).
… Prior to March 1972, section 2000-1 exempted educational institution
employees connected with educational activities whether the institutions were religiously
affiliated or not. Congress then enacted Public Law 92-261 to delete the exemption for
employees engaged in the educational activities of nonreligious schools.
XII 46
This deletion, however, tends to cloud Congress’ intent in originally enacting
section 2000e-1 in 1964, for it must be remembered that section 2000e-1 even as
originally enacted is quite specific in its terms. It does not exempt religious educational
institutions with respect to any and all discrimination. It merely indicates that such
institutions may choose to employ exclusively members of their own religion to teach in
their schools without fear of being charged with religious discrimination. Thus, in the
context of this case Wahlert High School could choose to hire only Catholics and not be
held liable for religious discrimination. That was the reading given to the section by the
District Court for the Southern District of Mississippi, in EEOC v. Mississippi College,
451 F.Supp. 564 (S.D.Miss.1978), a case relied upon by defendant.
There is no indication in the legislative history that when Congress enacted the
1972 amendment it also intended to exempt sectarian schools from liability for sex
discrimination. …Thus, the court is limited to statutory construction in order to discern
Congress’ intent.
Adopting the rule of “expressio unius est exclusio alterius”, the court concludes
that Congress’ intent was not to exempt sectarian schools from liability under Title VII
For discrimination based on race, color, sex or national origin. In enacting the section
2000e-1 exemption, Congress expressly, specifically and narrowly exempted religious
educational institutions only from liability for religious discrimination. Under the above
mentioned rule of statutory construction, its decision expressly to exempt this one
category of discrimination indicates its intent not to exempt other categories of
discrimination.
Indeed, to construe section 2000e-1 to exempt all Forms of discrimination in
sectarian schools would itself raise first amendment problems since it would imply the
government’s special preference of sectarian schools over nonsectarian schools. Cf.,
King’s Garden, Inc. v. FCC, 498 F.2d 51, 54-57 (D.C.Cir.1974). The court, therefore,
concludes that Title VII applies to sectarian schools where the charge is one of sex as
opposed to religious discrimination,[FN2] See Whitney v. Greater N. Y. Corp. of Seventh
Day Adventists, 401 F.Supp. 1363, 1367-68 (S.D.N.Y.1975); Compare McClure v.
Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972).
FN2. Wahlert High School does not contend that Ms. Dolter was discharged because she was not
a Catholic. It is conceded in this record that she in fact was a lay member of the Roman Catholic
Church. Nor does Wahlert High School contend that her alleged violation of Catholic moral
precepts caused her to be excommunicated or otherwise expelled from membership in the
Catholic Church. The court, therefore, notes that at all times material Ms. Dolter was, and
continues to be, a Roman Catholic.
Having so concluded the court must next consider whether assertion of Title VII
jurisdiction over defendant in the context of this case would violate the religion clauses of
the first amendment because it would entail excessive government entanglement with the
religious mission of the school.
B. Excessive Entanglement. Defendant’s contention that assertion of Title VII
jurisdiction over this case would entail excessive entanglement of government with the
religious mission of the school is grounded on its essential argument that Ms. Dolter, as a
XII 47
Catholic lay teacher of English, is significantly involved in the religious pedagogical
ministry of the Catholic Church.[FN3] To that extent, defendant asserts its right to
impose upon all its teacher employees a code of moral conduct including the proscription
of pre-marital sexual intercourse. It further contends that since Ms. Dolter Obviously
violated that moral code, it is protected under the first amendment in discharging her for
her moral turpitude. Defendant concludes, therefore, that assertion of Title VII
jurisdiction over it in the context of this case would necessarily require this court to pass
judgment on the legitimacy of its religious teachings, its moral precepts and the
administration of its religious pedagogical ministry. It appears to the court, however, that
defendant misconstrues the issue to be decided in sex discrimination cases.
FN3. Defendant does not contend that Ms. Dolter was a priest in the Catholic Church. The court
takes judicial notice of the fact that as of this time the Catholic Church does not ordain women as
priests. Nor is Ms. Dolter alleged to be a nun or other member of a Catholic religious community
or order.
The court has no quarrel with defendant’s contention that as a lay English teacher
Ms. Dolter may nonetheless have been intricately involved with the religious pedagogical
ministry of the Catholic Church. Nor does the court quarrel with defendant’s contention
that it can define moral precepts and prescribe a code of moral conduct that its teachers,
including Ms. Dolter, must follow. In deciding plaintiff’s claim, the court need not even
concern itself in any way with the content of that code nor with the substance of Catholic
teaching generally. Certainly the court need not pass judgment on the substance of the
Catholic Church’s moral or doctrinal precepts. The only issues the court need decide are
whether those moral precepts, to the extent they constitute essential conditions for
continued employment, are applied equally to defendant’s male and female teachers; and
whether Ms. Dolter was in fact discharged only because she was pregnant [FN4] rather
than because she obviously had pre-marital sexual intercourse in violation of defendant’s
moral code.[FN5]
FN4. The court certainly can take judicial notice of the fact that under present physiological laws
of nature women are the only members of the human population who can become pregnant.
FN5. For example, if single male teachers at Wahlert High School, known to have engaged in
pre-marital sex, were equally discharged any inference of sexual discrimination otherwise shown
might be dissipated.
If, however, the actuality was that defendant’s policy was not to discharge male
teachers engaging in pre-marital sexual intercourse, but was nonetheless concerned only
with the effect Ms. Dolter’s visible pregnancy might have on impressionable high school
students, it could still have dealt with the matter short of resorting to her termination,
thereby inviting a sex discrimination suit. For example, it could have honored its contract
with her, but granted her paid leave of absence during the term of her pregnancy. Or it
could possibly have assigned her to perform non-teaching duties. See, e. g., Gunther v.
Iowa State Men’s Reformatory, 612 F.2d 1079, at 1086 (8th Cir. 1980) (“. . . [institution]
must also demonstrate it could not reasonably rearrange job responsibilities in a way to
minimize the clash between [legitimate institutional] interests ... and the
XII 48
nondiscrimination principal of Title VII.”)
To decide such strictly sex-based discrimination issues would not to any degree
entangle this court in defendant’s religious mission, doctrines or activities; much less
excessively so. The labor relations context involved in Catholic Bishop of Chicago,
supra, is clearly distinguishable since that context would entail Board scrutiny of the
entire panoply of teacher employees’ work obligations and responsibilities, such as what
they could and could not be asked to teach; when they could be asked to teach it; and
whether they could be asked, as part of their work responsibilities, to attend liturgies
along with their students. See id., 440 U.S. at 499-502 & n.10, and Appendix thereto.
Such expansive scrutiny into the day-to-day administration of defendant’s school would
not in the least be required in this case.
The court concludes, therefore, that its assertion of Title VII jurisdiction over
plaintiff’s claim of sex discrimination would not entail excessive entanglement in the
religious mission of defendant’s school and would not be violative of the religion clauses
of the first amendment.[FN6] Compare Whitney, supra, 401 F.Supp. 1363, 1367-68 with
McClure v. Salvation Army, supra, 460 F.2d at 558-561. See also footnotes 2 and 3,
supra.
FN6. It neither involves special preference for sectarian schools nor an unequal burden on them.
It, in effect, would be neutral. See King’s Garden, Inc. v. F. C. C., 162 U.S.App.D.C. 100, 105106, 498 F.2d 51, 56-57 (D.C.Cir.1974).
B.F.O.Q. Finally, defendant contends it is entitled to dismissal or summary judgment
because of the “bona fide occupational qualification” (bfoq) exception codified at 42
U.S.C. §2000e-2(e)….
Defendant argues that since plaintiff was a teacher at its school, she was also
intricately involved in its religious pedagogical mission. As such, defendant contends that
it was entitled to impose upon its teachers a code of religious moral conduct and to expect
them to follow, in their personal life and behavior, the recognized moral precepts of the
Catholic Church. It contends, therefore, that such code and precepts constitute a bona fide
occupational qualification that plaintiff had to meet for continued employment as a
teacher. Defendant concludes that it was plaintiff’s alleged failure to meet such bfoq
relating to morality that was the true reason for her discharge and not her sex.
The court is of the view that defendant’s contentions relate to the parties’
respective burdens of proof … rather than to plaintiff’s failure initially to state or support
her claim.
Again, the court emphasizes what the issue is in this kind of case. The court has
no substantive quarrel with the possible merits of defendant’s contention that it may be
entitled to impose a code of moral conduct as a bfoq. However, the court notes that
defendant’s asserted bfoq appears relate to more religious and/or moral qualifications
than to sexual qualifications. To that extent, even where such code of conduct truly
constitutes a legitimate religious bfoq, the law nonetheless requires that it not be applied
discriminatorily on the basis of sex; that is, unequally to defendant’s male and female lay
teacher employees.
XII 49
Moreover, by affidavit attached to her resistance, plaintiff asserts that she has
knowledge that other single teachers, known to have violated defendant’s asserted code
of conduct by engaging in pre-marital sex, were not discharged as she was. This, of
course, goes to the issue whether defendant’s asserted bfoq defense is pretextual … and
raises at least one crucial issue of fact that cannot be preliminarily resolved at this time
upon a motion for dismissal or summary judgment.
    
Discussion Questions: Dolter
104. Could you plausibly characterize the school’s decision to terminate Ms. Dolter as
religious discrimination instead of (or in addition to) sex discrimination? Does this
characterization matter for the purposes of the religious educational institutional
exemption? For the purposes of the BFOQ analysis?
105. Suppose the school argued that treating men and women differently with regard to
sex is part of the relevant religious doctrine. Does that change the result of the
entanglement analysis? Of the BFOQ analysis?
   
Bollenbach v. Board of Educ. of Monroe-Woodbury Cent. School Dist.
659 F.Supp. 1450 (S.D.N.Y. 1987)
ROBERT J. WARD, District Judge. Plaintiffs, a group of female bus drivers
employed by defendant Board of Education of the Monroe-Woodbury School District
(“the District”), have commenced this action for declaratory and injunctive relief and
damages, as a result of the District having assigned male bus drivers with less seniority to
select routes within the school district. The assignments at issue involved busing male
students to the United Talmudic Academy (“UTA”), a private religious school located
within the Village of Kiryas Joel (“the Village”). The union to which plaintiffs belong
has also been joined as a defendant.
This action has been brought pursuant to 42 U.S.C. §1983 and Title VII…. All
parties have moved or cross-moved for summary judgment…. For the reasons which
follow, all parties’ motions for summary judgment are granted in part and denied in part.
BACKGROUND. Defendant, Monroe-Woodbury School Unit, Orange County Local
1000, AFSCME, AFL-CIO (“CSEA”), is the recognized bargaining agent for various
employees of the District including plaintiff bus drivers. CSEA and the District have
entered into a collective bargaining agreement setting forth the terms and conditions of
the bus drivers’ employment. The collective bargaining agreement at Article XVIII
specifically covers the assignment of drivers to bus routes serving the District. In relevant
part, Article XVIII reads as follows:
All regular school runs shall be assigned at the beginning of the school year, according to
seniority, based upon hours of the runs and size of the vehicle. Prior to the closing of the
school year, drivers will indicate to the Director of Transportation, the size of vehicle
they prefer by first, second and third choice and their preference for assignment on the
basis of hours rather than vehicle. If a driver receives an assignment not satisfactory to
him/her, he/she may then appeal to the Director of Transportation. If still dissatisfied,
XII 50
he/she may use the grievance procedure outlined herein. It will be the judgment of the
Director of Transportation as to whether a driver has the necessary skill and ability to
handle a particular route and to handle the children who will be driving on that route.
Regular school runs will be made known to drivers prior to the start of school. The
assignment of runs will be made by the Director of Transportation.
Collective Bargaining Agreement between the District and CSEA (“Collective
Bargaining Agreement”), Article XVIII (emphasis added).
The Village is an incorporated village under the jurisdiction of the District. All
residents of the Village are Hasidic Jews, known as the Satmar sect. The UTA is the
international school system providing education to Hasidic students. In accordance with
the tenets of Hasidic religious observance, which prohibit social interaction between the
sexes, the UTA maintains separate schools for males and females.
The UTA commenced operations during the 1978-79 school year, at which time
the District began providing bus service to the Hasidic students. Busing was provided
pursuant to the New York Education Law ….
Consistent with the collective bargaining agreement between the District and
CSEA concerning seniority rights of the bus drivers, Ms. Patricia Dugan was assigned to
bus a group of male UTA students. On the appointed day for the commencement of
service, the male Hasidic students declined to board the bus. The UTA advised the
District that, due to their religious tenets restricting interaction between the sexes, the
male students could not board the bus driven by Ms. Dugan, nor take instruction from
her.
Attempting to accommodate the needs of the Hasidim, the District replaced Ms.
Dugan with a male driver out of the seniority order. The District justified the
reassignment by the proviso in the collective bargaining agreement that gave the Director
of Transportation the discretionary authority to decide that a driver could not handle a
route. Since the male students would not board the buses driven by Ms. Dugan, the
Director of Transportation concluded that Ms. Dugan lacked “the necessary skill and
ability to handle [the route at issue] and the children who will be driving on that route.”
See Collective Bargaining Agreement, Article XVIII. Under these circumstances, the
Director of Transportation assigned the bus route to the next senior male driver on the
staff.
In October of 1983, the CSEA filed a grievance against the District alleging that
Article XVIII of the collective bargaining agreement had been violated when male bus
drivers had been assigned to UTA runs despite the higher seniority status of female
drivers. This grievance was submitted to arbitration in accordance with the collective
bargaining agreement. In September 1984, Arbitrator Walter L. Eisenberg ruled that the
District had violated the terms of the collective bargaining agreement by favoring male
drivers with less seniority over female drivers. Accordingly, the District was ordered to
apply the seniority provisions of the collective bargaining agreement commencing with
the spring semester of the 1984-85 school year without granting any special exceptions to
the UTA runs. …
On or about January 17, 1985, the Superintendent of the District notified the UTA
that commencing January 28, 1985, the District would assign female drivers to certain
XII 51
male bus runs in accordance with the Arbitrator’s decision. However, on January 24,
1985, the Village, UTA, and various named parents acting on behalf of UTA students
obtained a temporary restraining order … [that] restrained the appropriate parties from
removing the male bus drivers from the buses transporting UTA male students and
enjoined the implementation of the Arbitrator’s decision. On February 11, 1985, the UTA
decided to alter the hours of its school day to make it possible for the male students to be
bused by male drivers. By reducing the number of hours of service to the UTA, the
District was able to provide male drivers in accordance with the applicable provisions of
the collective bargaining agreement.
This arrangement worked to remedy the problem until October 11, 1985, when
one of the male drivers assigned to the bus runs retired. As a result of the retirement, a
female driver had to be assigned consistent with the seniority rules of the collective
bargaining agreement. Consequently, the Village and the UTA obtained a second
temporary restraining order … [that] again enjoined the District from assigning female
drivers to male UTA runs. …
On December 26, 1985, the plaintiff bus drivers filed a complaint in the United
States District Court for the Southern District of New York alleging sex-based
discrimination. The defendants named in the complaint included the District and its
individual members, the Superintendent and Assistant Superintendent of Schools, the
Village and its officers, and the Director of Transportation. Plaintiffs alleged that
defendants denied them their rights under the collective bargaining agreement by refusing
to permit them to operate the UTA runs on account of their gender. …
During the pendency of the … proceedings, the 1986-87 school year commenced.
On September 3, 1986, the District assigned three female drivers to the male UTA routes
and the male students refused to board the buses. The District continued to send the
female drivers through September 8, 1986. As a result of the male students’ continuing
refusal to board the buses, the routes in question were suspended on September 9, 1986.
On September 23, 1986, the Village and the UTA filed a complaint against the
District, CSEA, and the female plaintiff bus drivers, alleging a violation of the Free
Exercise Clause of the Constitution and section 3635 of the New York Education Law for
failing to provide them with male drivers.FN6
FN6. The Village and the UTA alleged as a third cause of action that the presence of female
drivers would pose a potentially dangerous condition. In support of this contention, they assert
that male teachers, who are bilingual, currently accompany the male students on the bus. These
male teachers would be unable for religious reasons to ride the buses driven by female drivers
and, therefore, the women drivers would be unable to communicate with the male students, many
of whom only speak Yiddish. This situation, according to the Village and the UTA, would create
an unsafe condition for both the male students and the female drivers.
DISCUSSION … II. The Religion Clauses of the First Amendment. …
A. The Establishment Clause. … At issue in this case is whether a school district
can modify its bus transportation by assigning only male drivers without violating the
Establishment Clause. It is clear that a state which voluntarily provides transportation to
nonpublic school students does not violate the Establishment Clause. Everson v. Board of
XII 52
Educ., supra, 330 U.S. at 1, 67 S.Ct. at 504. Central to the Supreme Court’s ruling “was
its determination that transportation, like fire and police protection, is free of religious
trappings.” McCarthy v. Hornbeck, 590 F.Supp. 936, 942 (D.Md.1984). See also
Committee For Pub. Educ. & Religious Liberty v. Nyquist, supra, 413 U.S. at 782, 93
S.Ct. at 2970 (“Most bus riders have no inherent religious significance....”); Lemon v.
Kurtzman, supra, 403 U.S. at 616-17, 91 S.Ct. at 2113 (Busing does not offend the
Establishment Clause because it is by nature a “secular, neutral, [and] nonideological
service[ ].”).
In Members of Jamestown School Comm. v. Schmidt, 699 F.2d 1 (1st Cir.1983)
cert. denied, 464 U.S. 851, 104 S.Ct. 162, 78 L.Ed.2d 148 (1983), a suit was brought
challenging a Rhode Island statute that provided for the busing of nonpublic school
children over special routes to schools beyond district lines. Although the First Circuit
upheld the statute, finding that the busing plan at issue did not violate the Establishment
Clause, the court’s analysis is significant in that it acknowledges that not all busing
programs are constitutional. The First Circuit, in evaluating the Rhode Island busing
program, began with the proposition that the Supreme Court “has referred uniformly to
the constitutionality of transporting sectarian students as part of a ‘general’ program
‘neutrally’ provided ‘in common’ to ‘all’ school children.” Id. at 9. Interpreting the
“common to all” language, the First Circuit found that although “absolute equality of
access or expenditure” was not required, the language served to “limit the degree of
disparity the Constitution will permit.” Id. Elaborating on this concept, the Court stated:
Whether busing is within a district or across district lines, public and parochial students
must be eligible for busing to their schools on the same terms: if distance is the criterion
and sectarian students living a certain distance from their school are eligible for busing at
public expense, public students living the same distance from their school must likewise
be eligible.
Just as important, the relative costs per-student of sectarian and public school busing
must remain roughly proportional.
Id. The rationale for not permitting vast disparities in the type of busing service provided
is that when the cost of transporting sectarian students becomes “grossly
disproportionate” to the cost of public school busing, the “indirect benefits” to secular
institutions rise to a constitutionally significant level and have the primary effect of
advancing religion. Id. at 10. In addition, great disparity of expenditures may breed
political divisiveness along religious lines thereby implicating the third prong of the
Lemon test. Id.
Applying the Lemon test to the Rhode Island busing program, the First Circuit
found that the program had a constitutional secular purpose. Id. at 6. The Court also
found that the program did not have a primary effect of advancing religion because there
was insufficient evidence of disparate costs. Id. at 10. With regard to entanglement, the
Court found that neither the risk of political divisiveness FN16 nor the increase in
administrative contracts between public and sectarian school officials were problems of
constitutional magnitude:
FN16. Political division was not a problem because the record revealed that the parents who
complained about the program complained as parents generally, not as Catholics. The Court
observed that the Establishment Clause “is not concerned with divisiveness generally, but only
XII 53
political divisiveness along religious lines.” Members of Jamestown School Comm. v. Schmidt,
699 F.2d 1, 12 (1st Cir.1983), cert. denied, 464 U.S. 851, 104 S.Ct. 162, 78 L.Ed.2d 148 (1983)
(emphasis in original).
Unlike teacher salaries or direct grants, which can be diverted to direct sectarian
purposes, busing is by nature a “secular, neutral, [and] non-ideological service....
Consequently, it involves neither forbidden state intrusion into religious matters, nor
“comprehensive, discriminating, and continuing state surveillance” to ensure its
confinement to secular use.... Rather, the contacts are ministerial or mechanical in nature,
and concern administrative, not religious, matters. Comparable contacts are intrinsic to
virtually all busing programs and appellees have not shown that the contacts at issue here
are different in kind or degree from the contacts implicitly upheld by the Supreme Court
in [previous] busing cases....
Id. at 12. The Court, however, cautioned that busing programs are not constitutional in all
circumstances:
But where a forbidden purpose or an impermissible primary effect is indicated, or where
palpable disparity has bred significant divisiveness along religious lines, we are
persuaded that a busing program will have ceased to be a “general” program of secular
benefits neutrally available to all, and will have crossed the line from providing a “remote
and incidental” benefit to offering a “direct and immediate” benefit to religion.
Id. at 10.
While busing programs are generally neutral, it is possible for a busing program
to run afoul of the Establishment Clause. Accordingly, this Court must now apply the
Lemon test to determine whether the District can constitutionally assign only male drivers
to UTA routes.
1. Secular Purpose: In school cases, the validity of the state’s purpose, the first
prong of the Lemon test, is rarely at issue. Parents’ Ass’n of P.S. 16 v. Quinones, supra,
803 F.2d at 1240. See Grand Rapids School Dist. v. Ball, supra, 473 U.S. at 383, 105
S.Ct. at 3222. This case is no exception. Despite CSEA’s contention that there is no
secular purpose in providing male bus drivers to drive male students of UTA to school
and that the only purpose is to advance the teachings of the Hasidic faith, this Court
believes that a legitimate, nonsectarian state interest exists to uphold such a policy. This
secular purpose is the state’s interest in ensuring that all children, regardless of their
religion, are transported to school. See Everson v. Board of Educ., supra, 330 U.S. at 18,
67 S.Ct. at 513. While it is true that the provision of bus service is not at issue in this case
because the children are already entitled to such service under section 3635(1) of the New
York Education Law, the state has a legitimate secular interest in providing bus service in
such a manner that all children, including Hasidic children, can take advantage of it. …
2. Primary Effect: In discussing the “primary effect” factor of the tripartite
Lemon test, the Supreme Court has explained that “[t]he crucial question is not whether
some benefit accrues to a religious institution as a consequence of the legislative
program, but whether its principal or primary effect advances religion.” Tilton v.
Richardson, 403 U.S. 672, 679, 91 S.Ct. 2091, 2096, 29 L.Ed.2d 790 (1971).
Impermissible advancement occurs not only when the state directly funds efforts to
XII 54
indoctrinate children in specific religious beliefs, but also when the state fosters a close
identification of its powers and responsibilities with those of religious denominations.
Grand Rapids School Dist. v. Ball, supra, 473 U.S. at 389, 105 S.Ct. at 3226. It is clear
that “[i]f this identification conveys a message of government endorsement or
disapproval of religion, a core purpose of the Establishment Clause is violated.” Id.FN18
Thus, an important inquiry under the effects test is “whether the symbolic union of
church and state effected by the challenged governmental action is sufficiently likely to
be perceived by adherents of the controlling denominations as an endorsement, and by
the nonadherents as a disapproval, of their individual religious choices.” Id. at 390, 105
S.Ct. at 3226. Where children in their formative years are perceiving the governmental
action, this inquiry must be made with particular care: “The symbolism of a union
between church and state is most likely to influence children of tender years, whose
experience is limited and whose beliefs consequently are the function of environment as
much as of free and voluntary choice.” Id. Similarly, the Second Circuit has noted the
danger that a symbolic link between church and state poses to children:
FN18. As the Supreme Court stated in Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 125-26, 103
S.Ct. 505, 511, 74 L.Ed.2d 297 (1982): “[T]he mere appearance of a joint exercise of legislative
authority by Church and State provides a significant symbolic benefit to religion in the minds of
some by reason of the power conferred.”
Our nation’s elementary and secondary schools play a unique role in transmitting basic
and fundamental values to our youth. To an impressionable student, even the mere
appearance of secular involvement in religious activities might indicate that the state has
placed its imprimatur on a particular religious creed. This symbolic inference is too
dangerous to permit.
Brandon v. Board of Educ. of Guilderland Cent. School Dist., supra, 635 F.2d at 978.
In recent years both the Supreme Court and the Second Circuit have struck down
programs as violative of the Establishment Clause where a symbolic link was found
between government and religion. In Grand Rapids School Dist. v. Ball, supra, 473 U.S.
at 397, 105 S.Ct. at 3230, the Supreme Court held that a “shared time” program in which
full-time public school teachers offered supplemental classes to parochial school students
on parochial school premises, and a community education plan in which teachers
employed full time by parochial schools were paid with public funds to teach after-school
classes to children on parochial school premises, violated the First Amendment’s
Establishment Clause. The Court found that under the circumstances, the students “would
be unlikely to discern the crucial difference between the religious-school classes and the
‘public-school’ classes, even if the latter were successfully kept free of religious
indoctrination.” Id. at 391, 105 S.Ct. at 3227. It was this effect, this “symbolic union of
government and religion in one sectarian enterprise,” that the Supreme Court found to be
an impermissible advancement of religion under the Establishment Clause. Id.
A similar symbolic union of church and state was found by the Second Circuit in
Parents’ Ass’n of P.S. 16 v. Quinones, supra, 803 F.2d at 1241. In Quinones, the City of
New York implemented a federally funded remedial education program at Public School
16 in Brooklyn for parochial students from the Beth Rachel Satmar Hasidic School, a
private girls’ elementary school affiliated with the Satmar Hasidic sect. The City of New
XII 55
York, in an effort to induce Beth Rachel administrators to send their students for remedial
education, adopted a special plan in which a group of nine classrooms in one wing of the
school was segregated for the use of the Beth Rachel students. Describing the plan, the
Second Circuit stated:
That section of the school was closed off from the rest of the school-used by the public
school students-by the construction of swinging doors and supporting walls in a
previously open corridor. Beth Rachel students were assured that their Chapter 1 classes
would be conducted separately from any such classes for the public school students.
Public school teachers would be provided; all would be women and all would be Yiddishspeaking. English would be taught as a second language (“ESL”), with resort to Yiddish
to facilitate the Beth Rachel students’ understanding. A reading method known as
“Distar,” previously tried and rejected by District 14 for its public school students, would
be used for the Beth Rachel students since that method is used in their regular parochial
school classes.
According to affidavits and exhibits submitted by Parents, the City stated both to them
and to the news media that the Plan was designed having in mind the “differences in
religion and culture between the Hasidics and the rest of the children” ... and that without
these features, the Beth Rachel students would refuse to attend remedial classes in P.S. 16
for religious reasons.
Id. at 1237. A number of parents commenced an action challenging the City’s plan. The
District Court denied preliminary injunctive relief, finding that the plan did not violate
the Establishment Clause in that it was an “accommodation” rather than a “symbolic
union” between church and state. Id. at 1239.
On appeal, the Second Circuit reversed the District Court and granted an
injunction, holding that the plan violated the second prong of the Lemon test:
Yet the City’s Plan seems plainly to create a symbolic link between the state and the
Hasidic sect that is likely to have a magnified negative impact on the minds of the
youngsters attending P.S. 16. Thus, each day, the public school students would observe
some 390 Beth Rachel students arrive at P.S. 16. The Beth Rachel students would be
taught in classrooms only they may use; no public school students would be taught either
in those classes or in those rooms. Yiddish would be spoken in the Beth Rachel classes.
Only Hasidic girls would be taught; those girls would be allowed no contact with boys.
Only female teachers would teach the Hasidic girls. And where once there was an open
corridor allowing freedom to traverse the entire hall, there are now a wall and doors
partitioning the Beth Rachel girls from the public school students.
In keeping with their general separatist beliefs, the Hasidim have expressed a desire to
keep their children separate.... The lengths to which the City has gone to cater to these
religious views, which are inherently divisive, are plainly likely to be perceived, by the
Hasidim and others, as governmental support for the separatist tenets of the Hasidic faith.
Worse still, to impressionable young minds, the City’s Plan may appear to endorse not
only separatism, but the derogatory rationale for separatism expressed by some of the
Hasidim.
Id. at 1241 (emphasis added).
In the instant case, the deployment of only male drivers on bus routes
encompassing the Village would have the primary effect of advancing Hasidic religious
beliefs. While the provision of bus transportation is neutral on its face, the District’s use
XII 56
of male drivers would effectively transform this neutral service into a vehicle for
promoting the Hasidic tenet that boys must not be in contact with women.FN19
FN19. The practice of assigning only male drivers would not have the principal or primary effect
of providing transportation in this case because transportation has been provided all along
pursuant to section 3635 of the New York Education Law. Thus, the primary effect of providing
male drivers is the advancement of Hasidic tenets.
Similar to the programs in Grand Rapids School Dist. v. Ball, supra, and Parent’s
Ass’n of P.S. 16 v. Quinones, supra, a plan requiring the District to provide male drivers
for the UTA runs would be an impermissible symbolic union between church and state.
Initially, it is likely that the Hasidic children would perceive the government’s provision
of male bus drivers as a symbolic endorsement by the Court and the District of their
religious beliefs. In essence, riding the school bus would no longer be a neutral activity
but rather, would be akin to a government sponsored religious experience. As noted
above, due to the impressionable nature of the young boys, this message of government
endorsement is particularly dangerous. See Grand Rapids School Dist. v. Ball, supra, 473
U.S. at 390, 105 S.Ct. at 3226.
The bus drivers as well would view the specialized treatment for the UTA as an
endorsement of Hasidim’s religious principles at the expense of the drivers’ contract
rights under the collective bargaining agreement. Moreover, while the Hasidic parents
and children would perceive the District’s action as promoting their religious tenets, other
school children, their parents, and the community as a whole would view the provision of
male drivers as a government allignment with the Hasidic religion as opposed to an
allignment with their own religious views. Thus, giving the Hasidim the drivers of their
choice would undoubtedly be seen as a symbolic union of church and state, conveying a
message of state support for the Hasidic religion to students, drivers, and the general
public. The Court concludes that a program providing the Hasidic students with male bus
drivers would have the fatal primary effect of advancing religion and would, therefore,
violate the dictates of the Establishment Clause of the First Amendment.
3. Entanglement: Inasmuch as the Court has found that a program providing male
drivers would fail the second part of the Lemon test, it is not necessary to consider the
excessive entanglement prong in any great detail. However, because the Court believes
that the entanglement test would also be violated if male drivers were utilized, some
discussion is appropriate. …
The Supreme Court has recognized two types of entanglement; administrative and
political. Administrative entanglement is “[a] comprehensive, discriminating and
continuing state surveillance” into religious matters. Lemon v. Kurtzman, supra, 403 U.S.
at 619, 91 S.Ct. at 2114. Political entanglement has been described as “a serious potential
for divisive conflict over the issue of aid to religion-’entanglement in the broader sense of
continuing political strife.’ ” Meek v. Pittenger, supra, 421 U.S. at 372. …
Examining the facts of this case, the Court finds that both excessive
administrative and political entanglement would occur if the District provided the Hasidic
boys with male bus drivers. A plan to assign male bus drivers to UTA routes would
necessitate a substantial increase in the number of administrative contacts between the
XII 57
District, the CSEA, and UTA school officials in order to coordinate and maintain busing
services for the male students. Consultations between all parties to this action would
likely be required on a continual basis to deal with implementation problems, such as the
death, illness, or retirement of a bus driver, a change in bus routes, or an alteration in
school hours. See Aquilar v. Felton, supra, 473 U.S. at 414, 105 S.Ct. at 3239.
Additional administrative entanglement would be created by the renegotiation of
the collective bargaining agreement between the District and the CSEA. The District
would have to represent the interests of the UTA and the Village during negotiations to
ensure the assignment of male drivers. Such entanglement problems would reoccur each
time the collective bargaining agreement was negotiated. See Meek v. Pittinger, supra,
421 U.S. at 372, 95 S.Ct. at 1766.
Excessive political entanglement would also occur by virtue of the assignment of
male drivers to UTA routes. While the Supreme Court has “not held that political
divisiveness alone can serve to invalidate otherwise permissible conduct,” Lynch v.
Donnelly, supra, 465 U.S. at 684, 104 S.Ct. at 1365, the potentially divisive political
effect of an aid program is a factor of “recurring significance” in the application of the
Lemon test. Committee for Pub. Educ. & Religious Liberty v. Nyquist, supra, 413 U.S. at
795, 93 S.Ct. at 2976. The Supreme Court has pointed out that competition among
religious groups for political and religious supremacy has led to civil strife. Id. at 796, 93
S.Ct. at 2977. Often this strife has been generated by organizations attempting to obtain
or maintain government support. Id. The Establishment Clause exists to prevent the level
of government involvement with religion that “is apt to lead to strife and frequently strain
a political system to the breaking point.” Id.
As stated above, the type of divisiveness the Establishment Clause is concerned
with is not divisiveness generally, but only political division along religious lines. See
Members of Jamestown School Comm. v. Schmidt, supra, 699 F.2d at 12. It is this type of
religious divisiveness that would occur if the District accedes to the demands of the UTA
and the Village. An examination of the record persuades this Court that the risk of
political division is already a problem of constitutional magnitude, as the bus controversy
has been the source of debate in the Monroe-Woodbury community and on a national
level. See Affidavit of Terrence S. Olivio, Exhibits E-J. Moreover, providing male bus
drivers to the UTA will be an ongoing event which will undoubtedly continue to generate
significant tension within the District. See Meek v. Pittenger, supra, 421 U.S. at 372, 95
S.Ct. at 1767 (recurrent nature of appropriation process for aid provides “sucessive
opportunities for political fragmentation and division along religious lines....”). This
potential for political entanglement, together with the administrative entanglement that
would be necessary to implement a male bus driver program, compels the conclusion that
providing male drivers would violate the third prong of the Lemon test.
B. The Free Exercise Clause. UTA and the Village contend that the failure of the
Board to provide free transportation services, in a manner not inconsistent with the
religious beliefs of the Hasidim, is a violation of the Free Exercise Clause of the First
Amendment because it forces them to choose between receipt of a government benefit
and observance of their religion. In essence then, they are claiming that if the District
does not tailor its busing service to conform to their religious tenets, their Free Exercise
rights are infringed.
XII 58
The Free Exercise Clause has been interpreted as including both freedom to
believe and freedom to act upon those beliefs. While the freedom to hold religious beliefs
is absolute, the freedom to act upon religious beliefs is not. Braunfeld v. Brown, 366 U.S.
599, 603, 81 S.Ct. 1144, 1146, 6 L.Ed.2d 563 (1961). The Monroe-Woodbury
transportation system, which assigns bus drivers on the basis of seniority, does not
compel the acceptance or practice of any type of religious creed or observance. Rather, it
is a facially neutral program required by state law which is being challenged on the
ground that it burdens the Hasidim’s right to freely exercise their religion by not
providing male drivers. The Monroe-Woodbury transportation scheme will withstand
constitutional scrutiny if the Court determines (1) that the program does not infringe on
the Hasidim’s free exercise rights, or (2) that any restriction on said rights is justified by a
compelling state interest. Wisconsin v. Yoder, 406 U.S. 205, 214, 92 S.Ct. 1526, 1532, 32
L.Ed.2d 15 (1972). Applying this standard, the Court finds that although the busing
program at issue infringes the Hasidim’s right to the free exercise of religion, the burden
on the Hasidim’s religious freedom is based upon a compelling state interest.
… Under Supreme Court precedent, the Monroe-Woodbury transportation system
violates the Hasidim’s free exercise of religion because it forces the Hasidim to choose
between obeying the tenets of their faith and receiving benefits. Sherbert v. Verner, 374
U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). … In this case, the male Hasidic
children can either ride the buses with female drivers, thereby violating the precepts of
their religion, or they can obey the mandates of their religion and not accept the district
busing program. Forcing the Hasidim to make this choice puts pressure on them to act
contrary to their religious beliefs and, thus, burdens their right to free exercise of religion.
Yet, the “mere fact” that the Hasidim’s religious practices are burdened by a
governmental program “does not mean that an exemption accommodating [their]
practice[s] must be granted.” Thomas v. Review Bd. of the Indiana Employment Sec. Div.,
supra, 450 U.S. at 718, 101 S.Ct. at 1432. “The state may justify an inroad on religious
liberty by showing that it is the least restrictive means of achieving some compelling state
interest.” Id. However, as noted by the Supreme Court, “only those interests of the
highest order ... can overbalance legitimate claims to the free exercise of religion.”
Wisconsin v. Yoder, supra, 406 U.S. at 215, 92 S.Ct. at 1533.
In Parents’ Ass’n of P.S. 16 v. Quinones, supra, 803 F.2d at 1241, the City argued
that the failure to provide remedial education classes that accommodated the religious
needs of the Hasidim violated their Free Exercise rights because it would be forcing them
to give up their sincere religious beliefs. Rejecting this argument, the Second Circuit
stated:
The Free Exercise Clause of the First Amendment ... does not prohibit a government
from forcing a choice between receipt of public benefit and pursuit of a religious belief if
it can show a compelling reason for doing so. See Bowen v. Roy, 476 U.S. 693, 106 S.Ct.
2147, 2156, 90 L.Ed.2d 735 (1986). Avoiding a violation of the Establishment Clause
that would otherwise result from an apparent endorsement of the tenets of a particular
faith is ample reason for compelling that choice.
Id. at 1241-42. Here, as in Quinones, the burden on the Hasidim’s free exercise rights is
justified by the compelling state interest in avoiding an Establishment Clause
violation.FN24 The state’s compelling Establishment Clause interest in removing from the
XII 59
busing program any indication of a symbolic link between the state and Hasidic sect leads
to the inescapable conclusion that no less restrictive alternative accommodations were
feasible in this case.
FN24. Having found that avoiding a violation of the Establishment Clause is a compelling state
interest, the Court need not address this issue further. However, the Court notes that an alternative
compelling state interest in this case could arguably be the District’s interest in bargaining
collectively with CSEA pursuant to state labor laws. See Catholic High School Ass’n of the
Archdiocese of New York v. Culvert, 753 F.2d 1161, 1171 (2d Cir.1985). In this case, the
Arbitrator’s decision made it clear that the assignment of less senior male drivers on the UTA
routes is contrary to the provisions of the collective bargaining agreement between CSEA and the
District.
In sum, this Court finds that the attempt by the District to alter its bus service to
suit the religious tenets of the Hasidim violated the Establishment Clause. The District’s
failure to tailor bus service to the Hasidim’s belief would not violate the Free Exercise
Clause of the Constitution. By providing transportation to all students on an equal basis,
the District will be in compliance with section 3635 of the New York Education Law.
III. Title VII. … Plaintiff bus drivers argue that the conduct of the Monroe-Woodbury
defendants in selecting males over females as exclusive drivers for the Hasidic routes
constitutes grounds for establishing a violation of Title VII. … The undisputed facts of
this case indicate that the District treated the female drivers “less favorably than others
solely because of their ... sex.” Zahorik v. Cornell Univ., supra, 729 F.2d at 91. … FN31
The fact that the District arguably acted in good faith by trying to comport its actions
with the First Amendment is simply not enough to relieve it of Title VII liability. …
FN31. The District does not assert that sex was not the sole reason for reassigning the female
drivers. Rather, it merely attempts to justify its discriminatory behavior based on its
misinterpretation of the religion clauses.
The bona fide occupational qualification (“BFOQ”) defense is a statutory
exception to Title VII which provides that it is not an unlawful employment practice to
base employment decisions on an applicant’s gender if sex is a bona fide occupational
qualification for the position. 42 U.S.C. § 2000e-2(e). The BFOQ exception to Title VII
“was ... meant to be an extremely narrow exception to the general prohibition of
discrimination on the basis of sex.” Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct.
2720, 2729, 53 L.Ed.2d 786 (1977). As observed by Justice Marshall in his concurrence
to Phillips v. Martin Marietta Corp., 400 U.S. 542, 545-46, 91 S.Ct. 496, 498-99, 27
L.Ed.2d 613 (1970), the BFOQ exception has been interpreted “to be applicable only to
job situations that require specific physical characteristics necessarily possessed by only
one sex.” The Equal Employment Opportunity Commission, whose regulations are
entitled to “great deference,” id., has stated that a BFOQ ought not to be based on the
“refusal to hire an individual because of the preferences of ... clients or customers ...” 29
C.F.R. § 1604.2(a)(1)(iii) (1986). See Rucker v. Higher Educ. Aids Bd., 669 F.2d 1179,
1181 (7th Cir.1982); Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276-77 (9th Cir.1981);
Diaz v. Pan American World Airways, 442 F.2d 385, 389 (5th Cir.), cert. denied, 404
U.S. 950, 92 S.Ct. 275, 30 L.Ed.2d 267 (1971). In this case, the BFOQ defense does not
apply because driving a bus does not require any special physical characteristics that are
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possessed by males, but not females. Moreover, the fact that the Hasidic clientele
strongly prefer male drivers does not make being male a BFOQ.
… Therefore, this Court concludes that the District, by its refusal to allow females
with greater seniority to drive the UTA routes, has violated Title VII. …
Discussion Questions: Bollenbach
106. Do you agree with the court’s Establishment Clause analysis?
107. Do you agree with the BFOQ analysis?
108. Assuming that assigning only make bus drivers here neither violated the
Establishment Clause nor was mandated by the Free Exercise Clause, would it be a
good accommodation to the needs of the Hasidic community as a matter of policy?
    
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