Religious organizations as employers


sexual orientation discrimination religion

Since the drafting of the US Constitution, the intersection of religion, constitutional rights and civil legal obligations has been a source of tension. These issues recently came to a head in an employment case out of Fontbonne Academy in Milton.

Fontbonne, a Catholic high school for girls, unwittingly agreed to hire a gay man, Mr. Barrett, as its food service director. Mr. Barrett was married, and when he was asked to fill out the school's "new hire" form, he naturally put his spouse down as his emergency contact. The school administrators then explained to him that they couldn't hire him because same sex marriage was inconsistent with the Catholic teachings of Fontbonne. Mr. Barrett sued for employment discrimination.

Before looking at the legal analysis, a few more relevant facts first. Fontbonne did not limit student enrollment to Catholics. Further, it required only certain high level employees and religious staff, such as administrators and theological staff, to be Catholic. It had a non discrimination policy that included sexual orientation. It advocated for debate among students on a variety of subjects and did not bar them from espousing contrary religious views.

Who wins? How do the courts balance the free exercise of religion with a state's compelling interest in eradicating employment discrimination?

To begin, the court put its metaphorical foot down and noted that it was "undisputed" that the employer was discriminating either on the basis of sex or sexual orientation. The only legal question was whether there was a statutory or constitutional exemption from the antidiscrimination laws under M.G.L. c. 151B that would legally permit it.

Chapter 151B -- the Massachusetts Antidiscrimination Laws

Turning to the statute first, the court had to interpret two inconsistent provisions.

Without getting bogged down into the details in this blog, the Superior Court harmonized the two inconsistent provisions of chapter 151B and read a narrow interpretation of the definition of the religious employer exception to include only those "which limits membership, enrollment, admission, or participation to members of that religion."

Because Fontbonne did not limit its student enrollment nor its staff to members of its religion, it thus could not then sustain protection under the religious employer exception to chapter 151. In other words, it was liable for employment discrimination just like any private employer unless another exception applied. So, it tried some constitutional arguments.

Constitutional rights to expressive association and free exercise

Fontbonne further argued that it had a constitutional right to "expressive association." The most widely known recent case applying that doctrine is Boy Scouts of America v. Dale, where the U.S. Supreme Court concluded that in keeping with the Boy Scouts' constitutional right of expressive association, they could kick out a gay Boy Scout scoutmaster who was also a gay rights advocate.

The Superior Court here said this was a different situation. Fontbonne permitted students of all faiths to attend. They had a non discrimination policy that included sexual orientation. They advocated for debate among students and did not bar them from espousing contrary views. They only required certain high level administrators and theological staff to be Catholic. The presence of Mr Barrett, in his role of food services director, did not "significantly and seriously burden" their expressive association where they were open as to students' faiths, discussions and that of other staff. Moreover, in his role as food service director, he was not in a position of teaching (Catholic values or otherwise).

Moreover, contrary to the scout master in Dale who as scoutmaster was in a position to promote values to the boy scouts and who also had acted publicly as a gay rights advocate, Mr. Barrett did nothing but put down his husband as his emergency contact on a school form.

The court notes that there is a difference between compliance with civil laws banning employment discrimination and a group's religious views on issues such as same sex marriage. Compliance with civil laws does not require the religion to alter its official views nor does it forbid the religion from making its religious views on any subject clear. It had the right "to require Barrett to refrain from contrary advocacy while employed" and under Dale it was possible that to the extent an employee's advocacy does "significantly and seriously burden that expression" they could seek constitutional protection.

That said, the court reminds the parties that the Commonwealth (and the country) have a compelling interest in eradicating discrimination, particularly as to same-sex couples in marriage, and particularly in the employment relationship. Furthermore, the freedom of expressive association is "not absolute."

Thus, it held that requiring Fontbonne to refrain from employment discrimination in hiring a food services director whose only transgression was listing his same-sex spouse on a new hire form does not "significantly" burden its constitutional expressive association rights.

So, Fontbonne tried another argument -- that under the Free Exercise clause, it was protected under the exception for "ministers" because it believed "all employees were ministers of the mission." The court disagreed, looking to a prior U.S. Supreme Court case reviewing the ministerial exception where it involved an ordained minister involved in preaching and teaching their religious faith. Such was not the case with Mr. Barrett as the food services director. Fontbonne lost on this defense too.

What were the Doorways? How Could this Have Gone Differently?

The most obvious doorway is that the school administrators could have consulted an employment lawyer before sending Mr. Barrett on his way. Instead, they ended up in court for two and a half years, lost, and upset a sizable number of alumnae.

It is also important to note, however, that if the facts were even just slightly different, the result could have been different. If Mr. Barrett had been an advocate and brought that advocacy into the workplace in a way that was deemed to significantly burden the expressive association of Fontbonne, that may have changed things and the result could have looked more like the legally booted scoutmaster in Dale. Or, if Fontbonne had been more of a closed institution and only permitted in those who practiced their religion, it could have legitimately taken protection in the religious institution exception to chapter 151B and likely would not have lost.

These questions can be close and are very fact dependent. If you are looking at a doorway like this and want advice on your personal situation, contact me.

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