Slate reports that the creator of “a Noah’s Ark–themed creationist amusement park” in Kentucky – an “Ark park” — (the same person who created the Creation Museum) has instituted a hiring policy which requires applicants to sign three documents before being hired: a “Salvation testimony,” “Creation belief statement,” and a “Confirmation of your agreement with the AiG statement of faith.”  Slate notes that “AiG is Answers in Genesis, Ham’s ministry and Ark Encounter’s parent company.”

Noah's ark : Noah s Ark cartoon

As Slate puts it, “The park is quite openly instructing all applicants to pledge that they personally believe in creationist Christianity. If an applicant has other beliefs, her application to Ark Encounter isn’t welcome. … AiG’s statement of faith is no mere loyalty oath: It’s a four-part theological declaration mandating that all signatories accept dozens of fundamentalist Christian principles.”

Does this discriminate on the basis of religion, in violation of Title VII?  I mean, a very religious pre-req for hiring which excludes all non-believers?

Before you jump to conclusions, consider whether the job involves religious doctrine, such as teaching creationism or being a religious guide to the various amusements and events.   If so, your conclusion might be different if you then considered the “ministerial exception.”

The Ministerial Exception

The “ministerial exception” is written into Title VII, and 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.

Read the Supreme Court’s key decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which held that the First Amendment bars the government from interfering with the decision of a religious group to fire one of its ministers.  What this means is that the so-called “ministerial exception” exempts an employer from the application of the anti-discrimination laws, and an employee deemed a minister has no recourse to Title VII, the ADA, the ADEA, etc.   See our earlier discussion of this case.

Is this amusement park a religious insitution? Is it required to be to be entitled to the “ministerial exception?”

But What If Public Money Is Involved?

But consider this wrinkle:  The Ark could not obtain all the necessary financing so he turned to public funding.  Slate notes that “Kentucky’s Tourism Development Finance Authority gave preliminary support for $18.25 million in tax credits for Ark Encounter, citing [the creator’s] promise that the project would create 600 to 700 jobs.  … ultimately, the state could grant Ark Encounter up to $73 million in tax breaks.”

So, is using taxpayer money and discriminating in hiring on the basis of religion legal?

The Kentucky agency which oversees tax incentives stopped funding the project because of the discriminatory hiring issues:  “the Commonwealth does not provide incentives to any company that discriminates on the basis of religion and we will not make any exception for Ark Encounter, LLC.”

In response, Ark Encounter’s executive director said that the state was “requiring us to give up our religious freedom and our religious rights.”

Any comments?

 

 

  • The legal questions arising from the matter appear to be of byzantine complexity, especially due to religious undertones. The question posed is complicated even further by ‘worldly’ rules in the form of a “ministerial exception” written into Title VII, that at first glance absolves the captain of Noah’s Ark and all associated therewith from compliance with anti-discrimination laws in hiring and other practices by virtue of its status as a religious institution, with core business that of religious amusement activities. Then to exacerbate matters further the deeming provision that employees of Noah’s Ark are not employees ‘in worldly terms’ – they are ministers spreading the gospel in accordance with the dogma of Noah’s Ark. However, whilst functioning under the protective umbrella of the “ministerial exception” non-compliance with anti-discrimination laws ostensibly was of no concern and entertainment continued without more. The supervening event was in my humble opinion the necessity to obtain public funding or financial rescue to keep Noah’s Ark afloat, as it were. From that moment onwards and so it is submitted, the “ministerial exception” had no legal effect and the dreaded anti-discrimination laws became applicable in hiring practices or any other activity that may constitute discrimination. JS.

  • rcohenfox

    Accepted

  • Mark Looy

    A major correction needed here: no taxpayer money is being used to build the Ark. No unwilling taxpayers will see their tax dollars used to construct it. The money involved concerns sales tax that will be collected from people who voluntarily visit the completed Ark when it is fully operational. With excellent attendance and the generation of tourism dollars for Kentucky, Ark Encounter might have the opportunity to have a the sales tax it collects refunded to a maximum-approved amount over 10 years through the state’s
    legislation. Again, no money comes from the state up front to build the Ark. Thank you.

  • rcohenfox

    Accept.

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • Sheila Gladstone, attorney

    The ministerial exception does not apply to every employee at a religious institution. Only actual ministers and teachers are included. A church’s secretary, janitor, and even baby care workers are not within this exception. I believe the Ark would be hard-pressed to defend this hiring discrimination with regard to the people who operate the rides or pick up the trash, so long as the employees agree not to make statements in opposition to the park’s mission. In other words, for non-ministerial employees, outward behavior, not inner beliefs is what will be the essential function of the job. They can be told to say, “Jesus saves”, when greeting customers, but they don’t have to believe it.

  • rcohenfox

    Accept

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • Bill Henning

    Failure to collect a tax or rebating the tax to the Ark strikes me as a “tax expenditure” and therefore very much involves taxpayer money.

  • rcohenfox

    ACCEPT

    Richard B. Cohen
    Partner
    Fox Rothschild LLP
    100 Park Avenue
    15th Floor
    New York, NY 10017
    (212) 878-7906 – direct
    212-692-0940- fax RCohen@foxrothschild.com http://www.foxrothschild.com

    Read my “Employment Discrimination” blog: https://employmentdiscrimination.foxrothschild.com/

  • rcohenfox

    Accept

  • Michael Wood

    Sounds to me that like so many employers the commercial/evangelical amusement park is trying to have it’s cake and eat it, too. In differing relationships it wants to

    a) be a religious ministry ;
    b) be a commercial amusement park ;
    c) take state subsidies which are NOT available to religious ministries.

    Sounds a lot like the senior US senator from Kentucky. However the US senator is a politician. We expect ambiguity and contradictory stands from politicians.

    Our society seems to expect one standard of behavior from our foremost national politicians, but a slightly higher standard from quasi-religious organizations and evangelical public amusement parks.

  • rcohenfox

    accept.

    Sent from my Verizon Wireless 4G LTE Tablet

    ——– Original message ——–

  • Air

    Can I ask whether the ministerial exemption applies to a for-profit corporation? As I understand it, the Ark Encounter is a for-profit subsidiary of Answers in Genesis, since without that status, the Ark Encounter would not be eligible for preferential tax treatment.