Religious Employers and Employment Law: Whose Rights?

Episode Notes

Transcript

Michael Subit:

I thought I knew pretty well what the line was, where at least we had risks of being told that no, the discrimination laws don’t apply after the in gospel case, at least in that circuit. I have no idea

Matt Greer:

What happens when an employer’s religious identity collides with workplace anti-discrimination laws. On this episode, we are joined by attorneys Jim Paul and Mike Subit to discuss the current state of the law regarding the rights of religious employers to hire people who align with their values and employee’s rights not to be discriminated against. Mike and Jim provide historical background survey, recent court cases that indicate significant changes and provide perspectives on what the future might hold. Hello and welcome to the A BA Labor and Employment Law podcast. I’m your host, Matt Greer. In my day job, I work for the Washington State Public Employment Relations Commission, the agency charged with impartially administering Washington’s public sector collective bargaining laws. I wear a few hats there, including mediator, hearing examiner, arbitrator and trainer, always as a neutral, probably like you. My focus area is one small piece of the bigger labor and employment law universe.

I enjoy broadening my horizons through these episodes and learning about what’s going on in the wide world of labor and employment law from distinguished experts in the field. On today’s episode, I’m honored to welcome Jim Paul and Mike Sebit to discuss developments in the law regarding the rights of religious employers and employees who work for those religious employers. Mike and Jim are skilled attorneys with extensive experience handling these types of cases. Jim represents employers as a partner at the law firm of Ogletree Deacons based in Tampa and St. Louis, and Mike represents employees and plaintiffs as a partner at the law firm of Frank Freed Sebit and Thomas based in Seattle. It’s truly an honor having them on the podcast to share their knowledge and wisdom with us. Be sure to check out their full bios in the show notes. Thank you so much for joining us, Jim and Mike, welcome to the show.

Jim Paul:

Thank you. Glad to be here. Thanks for having us.

Matt Greer:

That’s great having you on. So I know this is a topic that I think maybe for a lot of our listeners they may not know much about or it’s been a while since they thought about. So I thought we would start off the conversation. For those folks who are unfamiliar with this area of the law is to turn to you, Jim, can you give us an overview of what makes the relationship between religious employers and their employees different than other types of employment relationships? Perhaps first I’ll start off by telling us what makes an employer religious, which might be a concept that might be new to folks.

Jim Paul:

Sure, absolutely. So let’s start off with federal law and specifically the Civil Rights Act of 1964. But of course it’s been amended several times over the years and there’s a specific provision, title VII of the Civil Rights Act, as many of you know, that prohibits discrimination on several different grounds, gender, race, age, religion, national origin, ethnicity, et cetera. With regard to religious discrimination claims and requests for religious accommodation in the workplace. Religious organizations have a special exemption under Title vii. The federal courts have analyzed this over the last couple of decades, and I will say it’s evolving, and I know Mike would agree that this is a fast, dynamically developing area of the law to really define what a religious organization is. But the cases in federal courts, it depends on the federal circuit. They analyze it slightly differently. I’ll start with the broadest and the most recent.

In a case that came out of the Eighth Circuit Court of Appeals, Conway versus Mercy Hospital, St. Louis, the court of Appeals actually used and relied on Black’s law dictionary for the definition of a religious organization. It did not provide much more guidance other than the Black’s law definition, but then of course applied the facts in the case to that. And the Black Law Dictionary definition is a corporation formed for the purpose of maintaining or propagating religion and incidentally owning and administering real and personal property for religious uses. Obviously that’s broad and generic and somewhat vague. The court then of course applied various facts and circumstances from the case. It also talked about the fact that the definition should be brought and this exemption has its origins from constitutional restraints. The government has to restrain from interfering with various things of individuals and organizations including religious beliefs, freedoms, and practices.

And so this exemption was put into Title VII of the Civil Rights Act. Using that broad definition, a lot of things can become apparent. There is not a bright line test for if the organization sells secular products or performs secular services. So retail stores that have a religious mission or origin might qualify under the circumstances a religious hospital or religious school. Other religious organizations, even though they may be selling what appear to be secular services or products, could still potentially rely on that exemption. That’s the eighth circuit’s most recent definition or test for determining whether there’s a religious organization. But I’m going to go back to a ninth Circuit court of appeals test that lays out nine specific factors. And this has been used in several federal circuits, and it’s been around for a while, but basically it asks these nine questions, no, one of which is dispositive, and it’s like a balancing test.

The first one is whether the entity operates for a profit or if it’s nonprofit. The second factor is whether it produces a secular product. Again, not dispositive, it’s not going to necessarily be the sole factor that destroys the exemption, but it’s something to consider. Third factor, whether the entity’s articles of incorporation or other pertinent documents state a religious purpose. Number four, whether it’s owned, affiliated with or financially supported by a formerly religious entity such as a church or a synagogue. Number five, whether a formerly religious entity participates in the management. Number six, whether the entity holds itself out to the public and advertises to the public as secular or sectarian. Number seven, whether the entity regularly includes prayer or other forms of worship in its activities. Number eight, whether it includes religious instruction in its curriculum to the extent it is an educational institution, again, that factor is only going to apply in an educational or school context. And number nine, whether it’s membership is made up of co-religionists. And what that basically means is does the employer, does the organization only hire or purport to only hire members of that particular sector? Church?

Matt Greer:

Yeah, interesting judge. So nothing like a nine part balancing test to help give clarity to situations. Right,

Jim Paul:

Yeah. Then compare it to the eighth circuit just said, look to Blacks Law dictionary and then decide. So it’s interesting. Totally

Michael Subit:

Different. I’m not sure which case you were probably, if that’s from the Spencer case. Well, vision that was only one judge’s opinion. I mean, if I remember, that was actually two judges. The majority couldn’t even agree on the test. I said, this gets very complicated.

Matt Greer:

Yeah, yeah. Well, I know Jim, I know you mentioned in the name of that case that you referenced Mercy Health. I think a lot of people might think of religious employers as being, obviously, I’m guessing churches would be a clear cut example, but I guess are there other examples of employers that aren’t quite so obvious that might be interesting to know about?

Jim Paul:

Yeah, so obviously churches, temples, synagogues, physical buildings that are associated with a religion and membership. Hospitals and schools tend to be another area where a lot of institutions, educational or healthcare institutions may have been founded by a religious organization or a group of sisters or nuns or priests or monks, et cetera. Any charity service. So homeless shelters, abused spouse shelters, anything that serves social service. A lot of social service type organizations oftentimes were either created or founded or are supported by religious organizations in the community. And so you will find a lot of those community services, charity type organizations that have some connection or affiliation with a religious organization or church or group. It may or may not be enough to qualify as a religious organization under federal statute, state statute or for various different purposes, but a lot of those types of organizations are the commonplaces. You’re going to find this issue.

Matt Greer:

So Mike, I’m curious in your practices representing the employees and plaintiff asiah, are there any kind of employees out there that people might be surprised to hear about that you’re interacting with?

Michael Subit:

Well, I think people will be surprised just in their daily lives, how many companies that they deal with on a CC advertised on a regular basis on television are religious employers or purport to be. I mean, again, it sure is sometimes the case that when someone comes to me for an employer that we haven’t heard of and they do some digging and they at least purport themselves to be religious, and yes, that can often be surprising. Again, it’s a broad test. I mean, almost all the doctrines we’re going to talk about only apply to religious employers, but coming into these, getting into a fight, whether they are or not, the religious employer is usually not what I’m going to be fighting over. I mean, I’m going to assume that and then go from there. Dealing with my employee, it’s very hard to tell a religious employer that they’re not. I mean, there is, again, as they said, I think, I’m not sure that was the Spencer test, but it’s a morass in the ninth Circuit. In fact, what the test is, so it’s just said we could probably spend hours talking about what’s a religious organization.

Matt Greer:

Interesting. And we are using two terms. So religious organization and religious employer essentially synonyms in terms of how we’re talking our conversation here. Yeah, that’s what it’s,

Jim Paul:

I’m certainly using them that

Matt Greer:

Way. Yeah.

Jim Paul:

Yes. In the Title VII context, I use them interchangeably as well.

Matt Greer:

So what presents, I guess a legal conflict between an employee of a religious employer, and that might kind of rise to a level of where the two of you would get involved.

Michael Subit:

I mean, I think the real action in these cases right now is religious employers claiming the right to discriminate on the basis of their religious beliefs. And that’s where the action is. And to be very specific about it, it’s usually these days in the arena of same-sex marriage, less so on sexual orientation, but it’s really same-sex marriage. And you’re really dealing with two important rights, rights that both have some constitutional dimension, the right of religious employers to self-determination, but the right of individuals to be free from discrimination that’s against state and federal law. And so where this really arises is religious employers are claiming an exemption and sometimes a total exemption from federal and state laws prohibiting discrimination based on race, sex, religion is separate age and these days sexual when related transgender status. That’s where the hot button issues are. And so it’s really, we’re dealing with the conflict between EO law and the religious self-determination of religious employers.

Jim Paul:

And an important distinction, and Mike touched on this, but to be clear, so it’s interesting, under federal law, federal employment law, title vii, if an organization, if an employer is religious and qualifies based on the analysis and the test, and I didn’t mention it, but I actually was reading the factors from the LA Boon versus Lancaster Jewish Community Center case, that’s a third circuit case. The Spencer case was kind of a hybrid as well out of the ninth circuit and confusing and the split decision, et cetera. But with regard to employment, it’s only with regard to religious claims under federal law. However, a lot of states, most states have some type of civil rights law, anti-discrimination law for purposes of employers and employees. Some of them, including Washington up to a point in time, had a blanket exclusion that a religious organization could not be sued or attacked for on any basis of discrimination. So you could not bring a gender discrimination claim, an age discrimination claim, a race discrimination claim against a religious organization, federal law. It’s only with regard to religious discrimination claims. But under state law, it varies. And that’s where a lot of this, these litigation battles are playing out in state court.

Michael Subit:

I mean, as the law stands today, every single circuit has held, just like Jim said, that the Title VII religious employer exemption applies only to claims of religious discrimination, not race, not sex, which under bostock includes sexual orientation, whatever. There have been some concurrences and some district court opinions saying that that’s wrong and that it should be bore broad. But right now, and that’s been the law for 50 years, the problem for religious employers is they want a broader exemption, first of all, in again, there often claim that what would be characterized by the plaintiff as sex discrimination is really religious. And again, in the case that I did the other World Vision case of McMahon versus World Vision, the employer refused to hire my client because she was in a same sex marriage and they said that was actually a claim of religious discrimination even though we didn’t file one, we filed sex sexual orientation and marital status under state law. The district judge didn’t have any of it. He said, this is not about religion, but there’s been a recasting of claims about sex and sexual orientation these days. Interreligious one in a case we’re going to talk about in a few minutes, the Union Gospel case added, the ninth Circuit did exactly that on the constitutional level. But the black letter law as it exists today is the Title vii Religious employer exemption is not a defense to any claim of discrimination other than religion.

Jim Paul:

As Mike said, in today’s world, we see it every day, right in the news cycle, we have political issues, religious issues that overlap. And so same sex marriage, abortion or reproductive rights services is another one where depending on your perspective, that’s either a religious belief or practice for one person or a political issue for another person, or it’s none of the above. And so there is a very difficult problem that we have, right, to try to parse out politics versus individual rights. And is it religious or is it more of a gender expression?

Michael Subit:

Again, the statute itself, what it literally says is based on the religion and which I agree would be the religious beliefs of the employee. In other words, a Jewish organization can hire only Jews. We all agree with that. The problem extends to extend it to, for example, same-sex marriage is for most people in same-sex marriage, it’s not a religious practice to be in a same-sex marriage. It’s a civil ceremony. And so I just think it’s very analytically flawed, which is why recently Justices Alito and Thomas suggested we need to constitutional this whole issue. And the ninth Circuit, in a very sweeping opinion, earlier this month, took that up and basically did so and so the religious employer exemption simply doesn’t have the mileage what a lot of religious organizations want to get at it, which is an absolute right to discriminate based on any characteristic if that discrimination is based on religious belief.

Jim Paul:

Yep, yep. I’m going to use another analogy, and we’ve talked about it amongst ourselves. It really depends on your perspective. And it could be a matter of is the religious organization using its religious doctrines, its religious mission, its religious constraints as a sword or a shield. Is it using it to defend its actions and its mission, its activities, its belief system and doctrine? Or is it using it as a sword to discriminate, as Mike said, on something that’s not really being perceived or used or considered as religious from the employee standpoint, right? Such as the same sex marriage for instance, or reproductive rights, right? If someone chooses whatever medical care or issues, family planning, reproductive rights, abortions, obviously the employee may or may not view that as a religious issue at all. But the religious organization might try again more in the sense of using it as a sword using the protections or using its religion as a sword to say, yeah, we can discriminate against you based on your everyday activities or practices, whether or not they’re religious from the employee’s perspective.

Matt Greer:

So is it fair to say that maybe the more recent developments have kind of veered more into using it as a sword where maybe previously that that was more of a prohibited or maybe that was less likely to kind of be used in that manner or

Michael Subit:

From my perspective, yes. And let’s just be clear about this. This is really a reaction to the Bostock decision that recognized that discrimination on the basis of sexual orientation is within the plain language of discrimination on the basis of sex and violation of Title vi. That’s when this has really become an issue because certainly in today’s world, that’s still an issue, which people have strong feelings of disagreement. But this is not new. I mean, there were actually in 1964, after the passage of the Civil Rights Act, these claims were brought by covered entities both in the employment and the public accommodations realm to say they had a religious objection to integration and that were sincere beliefs. I mean, there’s a long history, I mean slavery, this is not making it up, was justified on religious grounds. You can go to the Bible, the story of Noah’s three sons, sham Hammond Jfe was considered a source of white racial supremacy, and that was justified a loving versus Virginia, the anti miscegenation case that went to the Supreme Court, the district court held that Virginia’s law is prohibiting interracial marriage, had a religious basis. And so that’s today it is same-sex marriage, less so still somewhat sexual orientation, but that’s what we’re dealing with is that religious employers who were opposed to same sex marriage are saying We don’t have to hire someone in a same sex marriage. And that’s largely what these cases are about these days.

Jim Paul:

Absolutely. There’s a growing increase in transgender issues and transitions, reassignments use of preferred pronouns. Again, it is the similar analogy that’s kind of the more modern evolution of this beyond the same sex marriage. But I completely agree with Mike that that’s the core group of issues that we’re talking.

Michael Subit:

And Bostock again held that transgender discrimination is discrimination the basis of sex. And they said in terms of these religious issues, which everyone agrees are important to balance, we’ll deal with those later. But again, up until recently, it’s really been a balance. And the area, there’s lots of doctrines. We talked about the religious employer one really for the last six, half a dozen years. Most of the action was in the ministerial exemption.

Matt Greer:

I wanted to define an opportunity here for a quick break, and this might be a good opportunity. I wanted to give a chance for a break and listeners know about some upcoming opportunities and events from the A Labor and Employment law section. And when we come back, I do want to pick up on that ministerial exemption piece I think is really interesting and I wanted to cover that. So I just take a quick break and we’ll be right back. Alright, and we’re back. Alright. Mike, I interrupted you right as you were kind about switching gears and talk about the ministerial exemption, and maybe I thought you’d let know what that is.

Michael Subit:

Up until the Ninth Circuit opinion earlier this month, if we had done this panel six months ago, I would’ve said that is where all the action is. And again, the Supreme Court had recognized it a few years ago on the Hana Tabor case. They refined it in our Lady of Guadalupe case. And basically again, in a nutshell that they said that the employers have a First Amendment exemption from EO laws, and it’s broader than that, even wage an hour. In fact, in some cases for employees that fall within the ministerial exception. Again, it’s a bit of a misnomer because not every religion has something called a minister and it gets complicated. And again, they really hooed a test of in that case, and they said, you look at the function, is this person performing an important religious function within the organization? Is it a function separate from basically everyone else in the organization?

And they said it’s a totality of the circumstances and told courts to go off and apply them. And courts have had generally since then, over the last five years, done so in a pretty liberal fashion in terms of the exemption being applicable. And again, if ministerial exemption applies, it’s broader than religious discrimination, it’s any basis, disability, what have you. And that’s where all the action had been in the cases involved. A lot of line drawing. It’s assumed that their religious employer, it’s not enough that they be religious employee because most employees of religious employers have religious duties. That’s the nature of them. So it was meant to be a narrow special group. The Supreme Court basically said that religious school teachers that have any religious duties are going to be ministers. It was pretty broad. It was broader than law had been before that courts have very much followed that. And so guidance counselors, administrators, curriculum setters, choir, masters, it’s been very, very broad. But again, that’s a balance. And while those of us who are concerned about it felt that some of the courts were taking a very broad view of the exemption and too broad, it was still for the most part going to be an exemption. Not everyone is a minister and the ground may well have changed with this new nine circuit opinion.

Jim Paul:

Another nuance to this, so let’s use the religious grade school or high school scenario, right? Obviously a minister, a priest, the religious leader that oversees, maybe the principal is a minister or a religious person, but then of course the school teaches math, English history, and then there’s going to be a religion or philosophy, core curriculum part to that. So the question is often posed, is the math teacher considered going to fall under the ministerial exemption? I could argue it both ways. I will say it depends as the answer is to most legal questions, right? It’s always, it depends. I think we could all agree that a teacher in grade school or high school that’s teaching religion, religious studies or doctrines probably more easily falls under the ministerial exception than a math teacher. But depending on how the school’s curriculum and its mission, some of these other subjects potentially could fall under that as well.

Michael Subit:

Yeah, I mean, again, at least as far as the ministerial exception goes, I think the only hope in terms of school teachers in religious schools is someone who’s basically a STEM teacher. I mean, I think anything English teachers, anything that’s the humanities, there’ll be something that requires the introduction of religious themes and religious values into the curriculum. And as far as the courts are concerned, that’s enough. And while I think taking the entire world of religious school teachers out of the protections of the anti-discrimination laws was probably farther than I would go. It’s still limited in the broad scheme of things. And so again, certain religious employers and really that wasn’t broad enough and they really have been pushing for a broad exemption that applies universally to all discrimination based on religion. For the first time in this ninth circuit case issued earlier this month, they got it.

Matt Greer:

We were talking about the ministerial assumption. It’s not like there needed to be some nexus to the religious mission of the religious employer. I was curious to the extent, especially large hospital districts and maybe the bigger universities, the custodial staff, the folks who are working in the cafeteria, I was just kind of curious if there was any kind of impact or carryover to those level of employees as well.

Michael Subit:

Not under the ministerial exemption. All again, the case that I did, which was a nicer case earlier this year on the ministerial exception, the employers argued every one of those people were ministers. The panel I had did not have much sympathy for that argument. But again, under this new Ninth Circuit opinion, the answer is all of them are covered. And so it shouldn’t be. I mean, the fourth circuit and the billard opinion said administrative workers, custodial staff are absolutely not ministerial employees, even though they are certainly sometimes required to be religious adherence. Again, there has to be an order, in my view, for it to be the proper balance between the two important principles, a line that only certain special employees are needed to have a complete exemption from the laws about who you hire. And again, they’re ministerial in a broad sense. I mean, for example, the Ninth Circuit kid has a case of a liven monk who cleaned the temple, a Buddhist temple. I mean, I actually agree that person’s a minister. I mean, they were kind of ministers in training. I think minister in training is the same as a minister. So again, while one can disagree, where the lines should be drawn, at least they were trying to do a balance under the ministerial exception. And even though employers usually won that, again, it was definitely in afoot a movement to try to see if they could push it beyond that because not everyone’s going to be covered.

Jim Paul:

And to be clear, the ministerial exemption is nons statutory, it’s constitutional based. And so it’s a completely different analysis than what I started off talking about as far as the Title VII or some of the state law exemptions. But Mike is absolutely right. Custodial staff, laundry workers, cafeteria workers, the gift shop attendant in a hospital or a religious museum, they’re selling things that are not religious at all. They don’t have to adhere to any certain doctrine. They’re selling food, they’re selling gifts, birthday cards, balloons, flowers or whatever else in a hospital, for instance. However, what about social workers? What about healthcare providers, potentially surgeons or nurses, depending on the care they’re given and how they’re giving it and if they’re incorporating religious doctrines, certainly if they’re incorporating proselytizing as part of that, right? It could. There’s a huge great, I think Mike and I will agree, there’s clearly things on one and both ends of the spectrum that we could easily agree, and the courts would agree presumably that they’re either going to fall under the ministerial exemption or not, but there’s a middle third or whatever the percentage is of a gray area where it’s really going to come down to a very specific practical description of what that person is doing and how they behave.

Michael Subit:

Yeah, I mean, if you example a doctor, this again, something that came up in my case, I mean my case again involved someone who was hired as a donor representative. Their job was to raise money for their charity. They worked at home out of a call center. The job was, the requirements were GED and job was on indeed.com. And the district court agreed with me that this was on the non, it was primarily secular, and basically it was no different than a call center. The only arguably different religious duty they had was the option if they wanted to pray with someone. And it was not a job requirement. The ninth Circuit disagreed. And again, the way we lost that case was the way I knew that if someone was going to do this in a careful way, this is the way the panel did it, is they basically looked at the very unique role that these employees played within the charity and said, these people and basically nobody else who’s not really truly a minister in more of our license are going to qualify. So again, well I didn’t agree with this is the McMahon versus World Vision case where the panel drew the line. They were working very hard to make sure that this did not become a complete open-ended exemption, which again, six months later, another panel of the ninth Circuit basically undid the careful line drawing that the McMahon panel did.

Matt Greer:

I did want to touch on, I know we’ve mentioned a few cases, and I know both of you have, and I think the inspiration for this episode was some litigation that Mike, you’ve been involved recently. Where do you things stand right now in terms of where things are going through the courts? Do you have any kind of takeaways, any kind of ideas about where things might be headed?

Michael Subit:

Well, as I said, if we’d had the, even before January 6th, and this is January 6th of this year, different January 6th, that I would’ve told you that the action’s all going to be in the ministerial exemption. There are other doctrines, freedom of association, freedom of expression, bonafide occupational qualification. Employers have had a remarkable lack of success of winning on those. There’s plenty of precedent saying those are really not going to work. Freedom of religion, again, they were arguing Title VII was not a religiously neutral law that it biased against religion. Most courts just didn’t accept those. I mean, if you were going to win, you were going to win on the ministerial exception. But now on this new opinion, which is Union Gospel versus Brown, a panel of the Ninth Circuit said that under the church autonomy doctrine, which is another constitutional doctrine, at least religious mission organizations have a constitutional right to discriminate on any basis if hiring that person is against their religious beliefs.

That is, we have never had a case said that I’ve read, I knew all the opinions in their discussion. None of the cases support it. It creates a direct conflict with the Second Circuit in a case they failed to mention. But if that’s the case, we don’t need the ministerial exception because it’s basically over. People have sincere beliefs. That same-sex marriage is a problem people have seen. I don. There’s no difference between that and mixed racial marriage. People have sincere beliefs under this opinion. A religious employer can refuse to hire someone because they’re in a mixed race marriage. I can go on and on and they say, well, this may not apply to hospitals or any other religious organizations. I don’t know why not. I don’t think you can make a distinction between the religiousness of Union Gospel Mission and religious of St. Francis Hospital. I think that is getting the courts into the kind of religious questions. The church autonomy doctrine prevents, I sure hope this goes on Bon, I mean basically two, justice on the Supreme Court, Alito and Thomas had expressed their support for this. They say the law perhaps needed to be changed to do this, and a panel of the Ninth Circuit basically did exactly what Alito and Thomas had hoped for.

Matt Greer:

Yeah. What do you think, Jen, do you think things are going in that direction that he brought doubt to that level?

Jim Paul:

The US Supreme Court’s going to need to weigh in on these issues. I mean, as Mike said and clearly laid out, there is a circuit split. It’s developing, and we’re in a new world again, with religion and politics being at the forefront of so many things in our lives and in the news and overlapping and people use it, the organizations themselves are using it either as a sword or a shield. Employees are using it either as a sword or a shield, right or wrong, it doesn’t matter. These are issues that are front and center and hot topic in workplaces, but even outside of workplaces for any organization providing community services or benefits or receiving federal benefits or state benefits. We’ve seen in the last year under this current federal administration withholding of benefits or dictating benefits based on either politics or religion or use of those funds.

And so there’s no doubt that from several different angles, this is going to converge on the US Supreme Court. And we now under the Title VII have a pretty clear, I wouldn’t say it’s a conflict, but completely different test. And just to be clear and make sure that I’m explaining correctly, so it’s the LA Boon versus Lancaster Jewish Community Center Association case that laid out those nine factors that I referred to from 2007 in the third circuit, and then it’s Conway versus Mercy Hospital St. Louis. I want to get the right version of the entity correct out of the A circuit from August of last year that basically said, we’re going to apply the Black’s Law dictionary and look at something and determine based on actual facts if we believe this is a religious organization. And so those are completely different tests or approaches to the test. Of course, using the same potential factors and analysis, but a different framework to use. So again, I think we’re going to see more and more of this on both sides and inside and outside the employment context. And the Supreme Court undoubtedly is going to have to weigh in on these issues. And these are topics that the Supreme Court is frequently asked to weigh in on.

Michael Subit:

I’m not as sure they’re going to weigh in on what’s a religious organization, even though it’s a complete mess, it doesn’t end up that important usually because you just sort of assume they’re religious and go on. It’s this issue where I think, and again, the Ninth Circuit just held that there’s a constitutional right for religious employers to not hire anyone who does things that they disagree with religiously. Well, in 1993, the second circuit in DeMarco versus Holy Cross High School said, and they used something called the Church Autonomy Doctrine, which again, the ministerial exception is part of, but no one has ever thought it meant this before. And let me just read what the DeMarco case said because again, it’s about the church autonomy doctrine. It does not bar statutory claims of discrimination where the employer proffers a religious reason for the challenged employment action.

If the non ministerial plaintiff can show a protected characteristic was a but for cause of the employer’s adverse action. The ninth Circuit just held exactly the opposite, that the autonomy Cochran gives a complete blanket exemption to religious organizations to discriminate on any basis that their religious views justify. And again, you could go back again, things have changed. Very few will today give a religious argument for why they shouldn’t hire black people. But that we had not too long ago the Bob Jones case, which refused to allow interracial dating. So there is no stopping point under the ninth circuit test. And again, I think it’s very dangerous. I hope there aren’t five justices who agree with that. I know there are two, but we will find out someday because the NICE Circuit didn’t even mention DeMarco, which had held exactly the opposite on this very same question 30 years earlier.

Matt Greer:

Yeah, I mean the theme of all the episodes we’ve been doing lately is kind of let’s wait and see because there’s obviously things that are going to be happening and developing in real time fairly quickly here. So really appreciate you giving us that kind of overview about what you’re seeing perhaps on the horizon. For those who are interested, keep an eye on. So we are getting close to the end of our time here. I wanted to give you both a chance to, if there’s any kind of final takeaways or anything that get to discuss that you wanted to make some final points, but also see if you have any tips for those practitioners out there who might work in your areas or might be interested in the area. Do you have any tips for them in terms of representing employees in these types of situations and employers as well? Anything that you want to offer them up as well as you close out

Jim Paul:

From an employer perspective, anytime you are advising a client, an organization, an employer with regard to a religious discrimination or a religious accommodation claim, make sure that you’re including an analysis or asking correct questions on whether, usually it’s readily apparent, right? It’ll have Saint in the title or it’ll have some religious nomenclature. It’ll be pretty obvious. But there are a lot of not-for-profit charity community organizations that don’t have obviously religious names in their title or on their door. And so when you’re representing an employer, make sure you understand either from a federal law standpoint or a state law perspective, what defenses or exemptions, because a lot of those statutes either carve out or exempt religious organizations from the definition of employer wholesale or with regard to, specifically with regard to religious accommodation or religious discrimination claims. So just understand what type of organization you’re dealing with and is there a statutory exemption? Of course, there are also going to be constitutional arguments as we’ve talked about. Can the government interfere if a person or if an organization is claiming religious freedom or religious rights or religious expression constitutionally, can the government regulate an organization with regard to its religious expression or practices? And so just to understand what you’re dealing with as far as your client, the organization, and how that affects the various statutory or other common law claim scenarios

Michael Subit:

Until this most recent Union Gospel. While there are areas, as we’ve said that are tricky and could go either way, I thought I knew pretty well what the line was, where at least we had risks of being told that no, the discrimination laws don’t apply after the Union Gospel case, at least in the United Circuit. I have no idea. I mean, again, just the decision is so activist that Jim mentioned earlier, originally the Washington statutory exemption at issue said couldn’t bring any claims and the Washington Supreme Court based on the Washington Constitution, we have a very different privileges and immunity clause than the federal one said it was unconstitutional. And this panel criticized the Ninth Circuit criticized the Washington Supreme Court’s interpretation of the Washington Constitution. I’m sorry. I mean, that’s not federalism. I mean, this is just right wing political activism. So now I have no idea. I worry that I don’t think you can limit it to hospital away from hospitals or other businesses. And so I think any employee who works for religious organization in the Ninth Circuit is at risk of being told that the federal and state anti-discrimination laws do not protect

Matt Greer:

Them. Alright, well, on that note, I going to characterize it. I won’t. I really want to thank you both, Mike and Jim for participating in this episode. It really was fascinating. I know I learned a lot in the area that Dive wasn’t really familiar with. Maybe I’ve heard little things about, and I’m sure most of our listeners learned a lot as well. So thank you very much for taking the time and sharing your perspectives and wisdom with us. Also, want to thank our listeners for taking the time to listen into the episode. I hope you enjoyed it. And if you did, give the podcast to follow one of your favorite podcast player and let your friends and colleagues know about us. Thank you very much, and until next time, thanks again.

Continue Reading