Just last week we reported on a new case in Massachusetts involving alleged state law sex and sexual orientation discrimination by a religious institution based upon a refusal to hire a job applicant for a food service position who listed his “husband” as his emergency contact.  We discussed the knotty problem of such a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws, and the “ministerial exception” to the application of the federal anti-discrimination employment laws.”

The Ministerial Exception

The “ministerial exception” is written into Title VII, which states that:

“This subchapter shall not apply to an employer with respect 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.”

Put simply:  a religious insitution can avoid the anti-discrimination employment laws with respect to employees performing religious-related, or ministerial, functions.

See the Supreme Court’s key decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission.

New State Law Case

12093195_sWe have just learned about a case from the state of Washington which involves only state anti-discrimination law, and which highlights the delicate balance when it comes to religion and anti-discrimination laws.  The state Supreme Court was asked by a federal court to render an opinion as to whether Washington state law, which forbids employment discrimination but totally exempts nonprofit religious institutions violates the state constitution. The statute does not create a distinction between religious and non-religious functions.

In that case, a 59-year-old African American unarmed security guard at a medical center owned by Franciscan Health System suffered a stroke and was fired, although he claimed that he could still perform his job duties.  He sued alleging race and disability discrimination.

The employer contended that the firing had nothing to do with its religious activities; it simply argued that it was completely exempt from the Washington Law Against Discrimination (“WLAD”) by its very language.

The federal judge formally asked the state’s highest court for guidance as to the state law :  Under the WLAD, he asked, “Can the Franciscans, or other religious organizations not for profit, discriminate against anyone on any basis, freely with impunity?”   The federal judge noted that “there are no cases construing the religious exemption in the context of this case, where the alleged discrimination has nothing to do with any religious purpose or activity.”

The state court’s decision was fractured –  four state justices said that the total exemption from the state’s anti-discrimination laws for religious institutions was valid; four state justices disagreed.  It came down to the opinion of the ninth justice.

The deciding Justice held that the law isn’t “facially unconstitutional,” because “there is a reasonable ground for the exemption for religious and sectarian organizations … to promote two goals: avoiding excessive entanglement with religious doctrines and practices and facilitating the free exercise of religion guaranteed by our Washington Constitution.”

However, said the Justice (without using the term “ministerial exception” which is utilized in Title VII jurisprudence):  “the constitutionality of the exemption depends entirely on whether the employee’s job responsibilities relate to the organization’s religious practices. … [that is it is] constitutionally applied in cases in which the job description and responsibilities include duties that are religious or sectarian in nature.”

In effect, therefore, the state court upheld a distinction between religious and non-religious functions under the state law, and thereby allowed the disabled security guard to proceed with his case in federal court.