Published: NBOA’s Net Assets November 11, 2021
Employers must make accommodations for their workers’ religious beliefs as long as no “undue hardship” is imposed on the business by doing so. This is law, Under Title VII of the Civil Rights Act. The U.S. Supreme Court has defined “undue hardship” as more than a trivial cost or burden.
Over the past several years, a number of religious accommodation cases have reached the U.S. Supreme Court. In most of these cases, the religious beliefs and rights of individuals and organizations conflict with other fundamental rights of employees, students and even the public. The cases have received tremendous publicity and have stirred rancorous debate in classrooms, bar rooms and on talk radio. The social media soundbites, however, sometimes miss the subtle and not-so-subtle legal arguments along this collision course. The collision is nowhere more challenging to avoid than in the world of independent schools, particularly religious schools.
Courts Rule in Favor of Religious Rights
To understand the current environment schools face, it helps to review some recent religious accommodation cases decided by the Supreme Court. In a 2014 case involving Hobby Lobby stores, the Court found that Hobby Lobby’s owners’ religious beliefs trumped their employees’ rights to health insurance coverage for contraception, as required by the Affordable Care Act. The majority opinion explained that the Religious Freedom Restoration Act of 1993 allowed the for-profit company to deny this coverage to its employees.
This was followed by the Masterpiece Cakeshop case, regarding the bakery owner who refused to bake a cake for a gay couple’s wedding. The Court decided 7-2 in favor of Masterpiece Cakeshop, concluding that the Colorado Civil Rights Commission demonstrated impermissible hostility to religion in finding in favor of the couple. It is notable that by this time the Supreme Court had affirmed that gay couples have the fundamental right to marry.
“All antidiscrimination statutes pose a tension between equality and liberty,” said Supreme Court scholar Erwin Chemerinsky in his analysis of the case. He asks: “Is a business’s freedom to choose its customers [or employees] more important than the government’s interest in stopping sexual orientation discrimination?”
The Ministerial Exception
In 2020, the Court decided that Title VII prohibits employment discrimination based on lesbian, gay, bisexual and transgender (LGBTQ) status. During the same term, the Court decided two teachers at two different Catholic elementary schools could not pursue employment discrimination claims due to the “ministerial exception,” defined in 2012, which bars ministers from suing churches and other religious institutions for employment discrimination. Although the teachers were not ordained ministers, the schools argued that the exception applied because the teachers played a key role in teaching religion to their students. The Court agreed.
Many schools and other organizations with a religious mission rely on the exception as license to prioritize the organization’s religious doctrine over the rights of employees, students and others, which rights might be sacrosanct in a more secular environment.
In March of this year, the highest court in Massachusetts ruled that the “ministerial exception” did not apply to an associate professor of social work at a private Christian liberal arts college. This court determined that the professor could continue to pursue her claim that Gordon College retaliated against her for her vocal opposition to the school’s LGBTQ+ policies. The court found the facts of the college case were “materially different” from the earlier case involving the Catholic elementary school teachers, because the professor was hired neither to be a minister nor a teacher of religion in a primary or secondary school environment.
A Teacher’s Role
In the earlier case where the ministerial exception was upheld, one of the teachers had undergone formal religious training and accepted a formal call to religious service. She and her employer both viewed her as a minister, and her employment documents described her as such. Both teachers worked in an elementary school where they taught all subjects, including religion. They were expected not only to teach the faith to their students but also to guide them “by word and deed” toward the goal of living their lives in accordance with the Catholic faith. They prayed with the students, attended Mass with them, and prepared the children for participation in other religious activities such as Holy Communion.
In the 2021 case, the professor was not ordained or commissioned or held out as a minister. The professor was not required to undergo formal religious training, pray with her students participate, lead religious services, take her students to chapel services or teach a religious curriculum. The Massachusetts court rejected the college’s argument that all its employees should come under the ministerial exception, ruling that was too broad an interpretation, which would allow religious organizations to simply ignore secular anti-discrimination laws.
Common Areas Where Rights Clash
With these precedents in mind, we can envision a number of situations in independent schools where a clash of rights could occur.
Transgender athletes. On June 16, 2021, the U.S. Department of Education concluded that Title IX’s prohibition on discrimination on the basis of sex includes: (1) discrimination based on sexual orientation; and (2) discrimination based on gender identity. Title IX prohibits discrimination on the basis of sex in any education program or activity offered by a recipient of federal financial assistance. It is unclear how rulings under Title VII, which protects an employee’s right to be free from discrimination, impact cases involving Title IX, but we may very well see a student athlete case before the Court before too long.
Use of Single Sex Facilities. On June 28, 2021, the Supreme Court declined to hear an appeal of a ruling that allowed transgender students to use bathrooms designated for the gender with which they identified. By allowing the decision to stand, the Court declined to challenge the more expansive view of Title IX’s protections adopted by the 4th circuit.
Religious Accommodations Regarding Vaccines. COVID-19 has once again reminded us that employers and schools have an obligation to consider the sincerely held religious beliefs of individuals who decline to get certain medical treatment, including vaccinations. Although the situations in which a religious belief will keep an individual from being vaccinated are rare, employers and schools must be careful about how deeply they dive into this issue if they are considering declining a requested accommodation. Unless there is a good faith basis to assume a belief is not sincerely held or is not based on religion, it is generally expected that one must take the word of the party seeking the accommodation. In balancing the rights of others to safety, however, a school may be able to require that unvaccinated employees and students wear masks or take other safety precautions.
These decisions provide some important takeaways for schools:
- The ministerial exception is narrow and should be used carefully and limited to those employees whose job duties clearly include teaching religious doctrine or engaging in ministry. Chaplains and religion teachers will come within the exception, but a school is not likely to succeed in arguing that all employees or even all faculty come under the exception because they have an obligation to be role models in the faith.
- Additional court cases are likely. Numerous cases regarding religious accommodation and sexuality are working their way through the courts and may end up in appeals courts or the Supreme Court.
- Although Title IX applies only to schools receiving federal funds, the regulations promulgated under it serve as a standard, and parents and students will have expectations of similar protections.
- All schools should carefully review and stay up to date on state law changes and local department of education regulations, some of which may or may not apply to independent schools. Many states are charging forward with legislation and regulations which may differ from federal law. Some seek to prohibit requirements for vaccines or alternative safety protocols such as masks for unvaccinated students. Others are setting forth their own rules for transgender students related to use of bathrooms and locker rooms and participating in athletics. Private schools participating in state athletic association activities may be bound by their rules.
The challenges are many in this ever-changing environment, and careful attention must be paid to knowing the rules in your local area and then deciding when they can and should be bent to accommodate the important rights of others, whether based on religion, sexual identity or the need for personal safety and protection.