Part 3—Resolving an Enduring Circuit Split

This is the third in a series of five posts discussing our recent article in the BYU Law Review on Title VII’s religious employer exemption.

In the last post we explained how a textualist reading of the religious employer exemption shows that the exemption applies when a religious employer confines employment to people who fit the employer’s religious observances, practices, and beliefs. In this post we explain how that textualist reading resolves a long-running circuit split.

For decades, federal circuits have been divided over the proper interpretation of Section 702. On one side of the split are the Third, Fourth, Fifth, Sixth, and Eleventh Circuits. They read the exemption as authority for religious employers to choose employees who observe religious standards of conduct. On the other side is the Ninth Circuit. It reads the exemption as a narrow co-religionist privilege allowing religious employers to restrict employment to individuals who are nominally members of the employer’s faith, but nothing more.

Little v. Wuerl, a Third Circuit decision, illustrates the majority approach. There, a former employee brought an employment discrimination claim against a Catholic school for declining to renew her contract after she remarried without following the “proper canonical process available from the Roman Catholic Church.” The Third Circuit closely reviewed Section 702 and concluded that Congress intended the exemption “to enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices.” So understood, Section 702 permitted the school to discharge an employee who had “publicly engaged in conduct regarded by the school as inconsistent with its religious principles.”

Other circuits have followed Little‘s lead. These include the Fourth Circuit in Kennedy v. St. Joseph’s Ministries, Inc., the Fifth Circuit in EEOC v. Mississippi College, the Sixth Circuit in Hall v. Baptist Memorial Health Care Corp., and the Eleventh Circuit in Killinger v. Samford University.

Prominent judges in other circuits have weighed in, too, in separate opinions. Most notable is Judge Easterbrook’s concurring opinion in Starkey v. Roman Catholic Diocese of Indianapolis, Inc. There, the Seventh Circuit held that a guidance counselor’s suit against her former employer, a Catholic high school, for declining to renew her contract after she acknowledged being in a same-sex union was barred by the ministerial exception. Judge Easterbrook explained that the school was also entitled to a complete defense under Section 702. He reasoned that Title VII’s broad definition of religion pushed aside “[a]ny temptation to limit the exception to authorizing the employment of co-religionists” and that under Section 702, the school was “entitled to limit its staff to people who will be role models by living the life prescribed by the faith.”

The contrary approach is illustrated by the Ninth Circuit’s decision in EEOC v. Fremont Christian Schools. There, a religious school invoked Section 702 as a defense to a claim for sex discrimination when the school granted more favorable employee benefit packages to male employees than female ones. The school cited a sincere religious belief that men must provide for their families as the reason for differential treatment.

Interpreting Section 702 as “exempt[ing] religious institutions only to a narrow extent,” the Ninth Circuit concluded that the exemption allows religious employers to “base relevant hiring decisions upon religious preferences” but not to make decisions that discriminate on any other protected ground. Or as that court said in an earlier decision, “Title VII provides only a limited exemption enabling [a religious employer] to discriminate in favor of co-religionists.”

This gloss on Section 702 clashes with Title VII’s broad definition of religion. By amendment, Congress defined the word to include “all aspects of religious observance and practice, as well as belief.” Omitting that express definition from their analysis might explain why these Ninth Circuit decisions narrowly construe Section 702 as a co-religionist privilege. Without that definition to guide it, the court of appeals misread Section 702 as a product of Congress’s rejection of a proposal to exempt religious organizations from Title VII completely.

The textualist reading we describe would resolve this long-running split in favor of Section 702’s actual text. It would also clarify the exemption for courts and litigants addressing claims of employment discrimination by religious employers. Given the long-running circuit split, this issue is ripe for resolution by the Supreme Court.

Our next post will explain how a textualist reading of Section 702 avoids serious constitutional problems that otherwise arise.