Can Employers Make Job Decisions Based on Their Religious Beliefs?

If corporate employers have the right to religious freedom, will employment discrimination laws survive?

Under federal law (Title VII of the Civil Rights Act of 1964) and the laws of almost every state, employers may not discriminate against employees based on their religions. This means not only that employers may not disfavor applicants and employees who hold certain religious beliefs, but also that employers may not prefer applicants and employees because of their religions.

It is also illegal for an employer to make decisions based on its own religious beliefs, if those decisions would violate other laws prohibiting discrimination (for example, laws prohibiting sex discrimination or discrimination based on sexual orientation). An employer could not refuse to hire any women, for instance, even if the company owner sincerely believes, on religious grounds, that women should not work outside of the home.

However, a recent Supreme Court case might complicate these long-settled rules. In Burwell v. Hobby Lobby(2014), the Court found that for-profit corporations are “people,” whose religious freedoms are entitled to legal protection. This could have a significant effect on many workplace laws.

Religious Discrimination Before Burwell

Under federal law, employers may not discriminate based on race, color, national origin, religion, sex, age (if the employee or applicant is at least 40 years old), disability, citizenship status, and genetic information. In the area of religious practices and beliefs, these laws establish several basic principles:

  • Employers may not make job decisions, whether favorable or adverse, based on an employee’s or applicant’s religion. It is equally illegal for an employer to promote only Christian employees as it is for an employer to refuse to promote Muslim employees, for example.
  • Employers must make reasonable accommodations to allow employees to practice their religion, as long as those accommodations don’t create undue hardship for the employer. For example, an employer might be legally required to modify its dress code to allow an employee to wear a religious head covering, or allow an employee to take a break for prayer at the time dictated by that employee’s beliefs. (For more information, see Reasonable Accommodation for Religious Beliefs.)
  • Employers may express their own religious beliefs, but may not require employees to participate in or share those beliefs. An employer may, for instance, talk about his Buddhist beliefs, but may not require employees to attend a religious retreat or participate in a prayer session.

The Ministerial Exception for Religious Employers

Employers that are themselves religious entities, such as a church, synagogue, or religious educational institution, are subject to a significant exception from these laws, at least for certain positions. These employers may not be sued for discrimination, on any grounds, by or on behalf of applicants or employees in “ministerial” positions. In a case decided in 2012, the Supreme Court found that religious entities have the right to determine who will “preach their beliefs, teach their faith, and carry out their mission,” without intrusion by the government. Allowing discrimination lawsuits by employees who hold or wish to hold these positions would violate that right by dictating whom the religious institution must hire or retain.

This exception applies only to employers that are religious institutions, including houses of worship, religious schools, and so on. And, it applies only to ministerial positions: The Catholic Church, for example, can refuse to ordain women as priests. However, it could not refuse to hire women as administrative assistants.

Burwell v. Hobby Lobby: Corporations Have Religious Rights

In June 2014, the Supreme Court decided the Burwell case, which could significantly change the laws that govern religion in the workplace. In the Burwell case, the Court found that a provision of the Affordable Care Act (Obamacare) requiring employers to include access to certain contraceptives in their employee health benefit plans could not legally be imposed on corporations claiming a religious objection. The case involved two closely held corporations, run by Christian families who believe that certain types of contraceptive methods are the moral equivalent of abortion, which is condemned by their religious faith.

This case has gotten lots of press, and with good reason: It turns the established rules on religious discrimination upside down. Rather than asserting an individual employee’s right to religious freedom (including freedom from having to practice or participate in an employer’s religion), the Burwell case asserts the employer’s right to religious freedom.

For the first time, the Court allowed for-profit corporations to assert the right to religious freedom that had previously applied only to individuals and to religious entities.

It will take time to sort out all of the ramifications of this decision, but it raises many questions in the area of employment discrimination:

  • What if an employer’s religious views clash with an employee’s or applicant’s beliefs? Can the employer claim that it cannot be required to comply with Title VII, because that law requires it to violate its religious principles by, for example, hiring an atheist or promoting someone who religious beliefs the employer sees as heretical?
  • Can an employer rely on its own religious beliefs to refuse to comply with other anti-discrimination laws? What if an employer believes homosexuality is a sin, unmarried mothers are an abomination, or racial integration is against divine law? The Burwell case says that employers can’t be required to violate their own beliefs unless the government has a very strong reason to require it, and pursues that goal in the least intrusive way. If the provision of contraceptives can’t meet this difficult test, can the societal goal of ending discrimination?

It’s difficult to say how these issues will be decided. Until recently, corporations were considered “people” only for the very limited purpose of giving the people who formed them limited liability. Because the corporation’s human organizers are legally shielded and are considered a separate entity from the corporation, the corporation itself must be legally capable of taking certain actions, such as bringing or defending lawsuits, paying taxes, and so on. Calling corporations “people” was a sort of shorthand, intended only to indicate that they can do some things people can do, and are bound by some of the laws that bind actual people.

This is a far cry from saying these business entities have religious beliefs and political opinions they must be allowed to express, as recent Supreme Court cases have done. Critics of these cases point out that the Court is trying to have it both ways. No one can get to the people behind these corporations if the corporation violates the law. If the corporation is at fault, only corporate assets are at risk; the people who own the corporation are shielded from liability. Yet, if the corporate owners want to take action, the Court is willing to disregard the corporate form and say that the corporate owners have the right to express their religious and political opinions through the corporation. It’s currently unclear how the legal system will handle the growing battle between the rights of fictitious corporate “people” and the rights of the actual humans who work for them.

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