Monday, October 9, 2006

Religious Employers and Their Employees

Church_4_2 Keeping with the religion theme this Monday, an avid reader of this blog points out an article today from the New York Times discussing the ability of religious employers to avoid having to abide by certain laws, including employment discrimination laws, in recognition of their special status under the First Amendment.

Here are some excerpts:

Legislators and regulators are not the only people in government who have drafted special rules for religious organizations. Judges, too, have carved out or preserved safe havens that shield religious employers of all faiths from most employee lawsuits, from laws protecting pensions and providing unemployment benefits, and from laws that give employees the right to form unions to negotiate with their employers.

Some of these exemptions are rooted in long traditions, while others have grown from court decisions over the last 15 years. Together, they are expanding the ability of religious organizations — especially religious schools — to manage their affairs with less interference from the government and their own employees.

The most sweeping of these judicial protections, and the one that confronted the novice nun in Toledo, is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years.

As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.

This is a long article on the topic, but even if you can only read the opening story about the novice nun dismissed because she developed breast cancer and then having her lawsuit dismissed under the ADA, you will get the flavor of some of the problems in this area of the law.

We wrote about the ministerial exception many times in the past few months while discussing the Petruska decision from the 3rd Circuit.  And although that case originally decided by the now-deceased Judge Becker seemed to put together a workable compromise between religious employers and the rights of their employees, it was later decided in favor of the religious organization under a much more deferential ministerial exception approach by a reconstituted 3rd Circuit panel.

In any event, this is a very important and difficult topic, but at the very least religious employers should  not be able to run roughshod over their employees' civil rights in all cases.  Rather the question should come down to what is truly at the core of the organization's religious belief or expression, and not just a relexive kow-towing to any employment action a religious employer takes because of potential First Amendment concerns.  Courts and legislators have to be willing to get analytically dirty in these affairs and be willing to do the necessary searching analysis these cases require.


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