What Schools Must Prove to Make Employee Decisions on Faith: In Light of Hosanna-Tabor and Red Hill 

Q: 
I understand that religious organizations are exempt from some statutes or legal requirements. However, I increasingly hear of suits such as the Hosanna-Tabor case that are filed against Christian schools because they dismiss staff, even if the former employee violated moral values. Just how religious does a Christian school have to be, or how should the school deal with moral issues involving staff in order to avoid liability.

A:
Your question comes at a very opportune time. Several court cases have examined the religious organization and religious criteria requirements. Member schools must be able to show not only their religious nature, but they also must be able to articulate religious criteria for the employment decisions they make.

The first step requires that Christian schools examine their organizational documents to ensure that the documents state their religious nature clearly. Many member schools, though a ministry of a church, are incorporated separately from the church or they are structured as an independent school. They may have been incorporated as a public charity or public benefit corporation, not taking advantage of the state’s religious incorporation statutes. In some cases, the result can be the loss of a defense. For example, in California, Christian schools that are denoted as a religious organization are exempt from the state Fair Employment and Housing Act (FEHA). However, some member schools have incorporated as a public benefit corporation, an action that may result in losing the exemption. 

In a case decided several years ago by the federal Ninth Circuit Court of Appeals, the Court articulated several criteria that could be used to determine if a school was a “religious organization,” and therefore, permitted under Title VII to discriminate on the basis of religion. The first criteria the court examined involved the organizational documents (articles of incorporation and bylaws). ACSI has recommended that schools examine their organizational documents and amend them to ensure that the religious nature is clearly stated. If the school is not incorporated under the state’s religious organization statute, the school should promptly consider filing amended articles of incorporation. Even schools that are operating as integrated auxiliaries of a church should articulate clearly their religious nature and philosophy of Christian education. 

Next, Christian schools must be able to articulate a legitimate religious reason or basis for a termination that is based on a violation of moral values. We have suggested that schools have clear statements of what is required to meet the school’s religious expectations. Provide Bible verses to support the expectation. For example, serving as a Christian role model in and out of school is based on Jesus’ statement in Luke 6:40 that students when “fully trained will be like their teacher” (NIV). If we want students to be Christlike, their teachers must reflect Christ. In addition, schools must be consistent. A school cannot dismiss a single female teacher for engaging in sexual promiscuity if it didn’t dismiss male staff members who engaged in the same conduct. 

Christian schools must show their religious nature in order to discriminate on the basis of religion or to otherwise take advantage of the various exemptions.

LLU 22.3

By Attorney John L. Cooley