For over thirty years, Title VII of the Civil Rights Act of 1964, as amended, has honored the right of faith-based organizations to choose the employees who can best further their missions, by explicitly acknowledging in section 702(a) their freedom to use religious criteria when making employment decisions. This religious staffing option is not an exemption from the Civil Rights Act, but a freedom incorporated into it.
Ten Reasons for Religious Staffing
For over thirty years, Title VII of the Civil Rights Act of 1964, as amended, has honored the right of faith-based organizations to choose the employees who can best further their missions, by explicitly acknowledging in section 702(a) their freedom to use religious criteria when making employment decisions.
- This religious staffing option is not an exemption from the Civil Rights Act, but a freedom incorporated into it. Religious staffing is a civil right belonging to faith-based organizations, not a denial of civil rights. Under Title VII, religious organizations may not discriminate on the basis of sex, race, national origin, handicap, or age, but they are free to hire only staff who share their religious beliefs. Opponents of religious staffing are seeking to roll back a long-established civil right.
- The religious staffing freedom applies to all positions in a faith-based organization, not only ministerial or clergy positions. This broad religious staffing freedom was upheld unanimously by the U.S. Supreme Court in 1987 in Amos v. Corporation of Presiding Bishops, a case involving the dismissal of a janitor from a faith-based health club. The Court ruled that the exemption permitting religious staffing by religious organizations was not only constitutionally permissable but fully consistent with the First Amendment.
- Although the First Amendment has sometimes been interpreted as requiring a high wall of separation between church and state, thus forbidding funding for overtly religious organizations, the U.S. Supreme Court has decisively moved away from this interpretation in favor of a policy of treating faith-based and secular organizations on an equal basis. The religious staffing freedom is consistent with this policy and necessary to enable religious organizations to retain their religious identity when they serve in the public square.
- In accommodating religious staffing by faith-based organizations, the Civil Rights Act only enables them to do what most other mission-driven organizations, such as the Sierra Club and Planned Parenthood, also do: choose as staff those capable people who are most dedicated to the cause of the organization.
- If a faith-based organization accepts federal funds to provide social services, it does not on that account give up its religious staffing freedom. There is no general federal legal or constitutional principle that eliminates the religious staffing freedom of faith-based organizations that accept government money. Title VI of the Civil Rights Act, the section dealing with federally funded organizations, does not include religion as a prohibited basis of discrimination.
- The current state of religious employment law is complex, inconsistent, and inadequate. Religious organizations are generally free to use religious criteria in employment decisions, but certain federal programs, such as those funded under the Workforce Investment Act, prohibit all grantees, including faith-based organizations, from hiring on a religious basis. However, religious organizations in such cases may appeal to the Religious Freedom Restoration Act to override the restriction, as noted in current regulations for SAMHSA drug treatment funding. Other laws for federal social service programs are silent about employment, and thus leave the general religious staffing freedom intact. During the Clinton administration, Congress added Charitable Choice language to laws authorizing four federal programs, in order explicitly to protect religious staffing for faith-based organizations funded under those programs.
- The freedom to staff on a religious basis is not a freedom to discriminate on religious grounds against recipients of social services. Both Charitable Choice and the principles of the Bush Faith-Based and Community Initiative explicitly forbid religious discrimination against people seeking assistance.
- Religious staffing is not "government-funded discrimination," as critics claim. If the government selects a faith-based provider, it is choosing the organization that most effectively and efficiently serves the needy, in this instance an organization that has the legal freedom to ensure that its staff members are committed to its faith-based mission.
- The government is acting in an even-handed way when it permits all organizations it funds, religious as well as secular, to hire staff devoted to their respective missions. Pro-choice organizations do not lose their ability to screen out pro-life employees when they accept government funds. In the same way, faith-based service groups should not lose their religious staffing liberty if they accept federal grants. Keeping religious staffing legal is the only way to ensure equal opportunity and effectiveness for all organizations and to respect the diversity of faith communities that are part of our civil society.
Coalition to Preserve Religious Freedom
Center for Public Justice
Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Laws vary by jurisdiction and the specific application of laws to particular facts requires the advice of an attorney.
Association of Christian Schools International
731 Chapel Hills Drive
Colorado Springs, CO 80920