Religious Hiring: Can you?

Religious discrimination in the workplace may sometimes be appropriate, right?

One person’s preference is another person’s prejudice.
So it seems when organizations such as religions and faith-based charities attempt to fill jobs with people of the same philosophy or faith.  Some see what one may think of as protecting the image and philosophical views of an organization as flagrant job discrimination.  Likewise, what we used to see as religious discrimination in the workplace may be more acceptable under recent federal court rulings.

Mississippi’s burning religious discrimination case was a hot issue

If a hiring manager wants to fill positions with people agreeing in philosophy and belief to his organization, that is religious discrimination, right?  The answer is sometimes yes and sometimes no, depending on the situation and the timing. 

In 1987 in a religious discrimination case involving the Salvation Army and a woman named Jamie Kellam Dodge, the answer was no.  Dodge was a victim assistance coordinator working at a domestic violence center in Pascagoula, Mississippi; she was fired because of her religious beliefs in Wicca (a religious cult of modern witchcraft based on pre-Christian pagan beliefs).  The Salvation Army (then judged a religious denomination instead of a registered charity as it is classified today) receives millions of dollars in federal tax money to run its programs; however, it does not discriminate against those it helps as its services are open to everyone in need.  In 1989 a federal district court finally ruled against the Salvation Army judging that this religious discrimination case was in violation of federal law since the organization was significantly funded by federal tax money.  Seems pretty black and white doesn’t it?

In New York, what was true yesterday may not be true today

Today, the wind has shifted the other way.   Influenced by President Bush’s  “faith-based” program initiatives, a federal court in a New York hiring discrimination case, again involving the Salvation Army, ruled that the Salvation Army could use religious criteria in its hiring.  The court upheld Salvation Army’s hiring policy discriminating against people whose faith or sexual orientation conflicted with its own philosophies.  The ACLU has appealed the decision.  In another case, the New York State Legislature, proposed a law that would require companies to extend health care benefits to same sex partners.  The Salvation Army publicly responded that if the law passes, they would close all their shelters and soup kitchens in New York.  The problem is not so black and white anymore because the view of “rights” is shifting to include the rights of organizations, as well.  Organizations are asserting their rights through the valuable work they do.

In Colorado, what is true today may not be true tomorrow

In the Colorado State Legislature, there is an attempt to prohibit faith-based organizations that received tax assistance from making hiring decisions based on a job applicant’s beliefs.  The bill died suddenly when religious leaders stated that if the bill passed they would stop delivering federal, tax-supported human needs services.  At present, Colorado has a law exempting and protecting faith-based organizations that make decisions to hire staff based on their religious beliefs and their religious affiliations. 

For-profit organizations:  Beware of the questions you ask!

Companies based on profit do not get into the same situation because the religious prejudices exhibited in religious-based or charity-based organizations specifically ask questions about religious and moral preferences that for-profit companies are forbidden from asking. Therefore, the trouble that for-profit companies get into may not at the hiring or dismissal stage, but in the interview stage. For example, an interviewer in a for-profit company cannot even ask about what religious holidays a prospective employee would prefer because that shows a religious bias. Instead, the interviewer can inform that whichever religious holidays are observed, time off would be allowed as personal choice. Check out the Top 10 Illegal Interview Questions to find out more.

The “wall of separation” prohibiting religious discrimination in the workplace is a short one

Of course, these religious discrimination cases involve organizations receiving tax money that, to many, makes such exemption from federal law unconstitutional under the first amendment of the Bill of Rights.  Many strongly believe that the intent of the first amendment was to protect minority religion followers from being overwhelmed and squashed by a government-mandated and sponsored religion, an official church, but not intended to prevent decisions based on religious freedom.  Tradition, and modern day practice, seems to include everything up to and including prayer and the mention God in public.  Those proponents are just as militant in insisting that such intolerance is the intention of the first amendment.  A good read of Jefferson’s and Madison’s philosophy on the “wall of separation” might help one codify his or her own opinions.

How do we decide if such hiring discrimination could be appropriate and legal?

So where should an organization at risk take a stand?  On the face of it—at least at present—if you hire for a faith-based organization and do not receive any assistance from the federal government, the courts seem to back you in doing whatever you want.  That won’t mean you won’t get sued; it only means you probably would end up winning.  However, if you receive tax relief or aid, you are at risk, although less so than ten years ago.

On the other hand, if you are a faith-based private school you are allowed to restrict your hiring to people who represent just what you represent, but that could well change when the first federal tax-supported voucher is handed in to help pay a student’s tuition.  There is a good possibility that the first voucher would be accompanied by a first amendment lawsuit occurring shortly afterwards.

It is an irony that part of the Great American Dream is that while trying to do your best to do the right thing and avoid litigation, you could put yourself in litigation.  The switch in politics at the national level—whichever way the wind ends up blowing in November—will no doubt bring more change whoever wins.  And, we all know, the more that things change the more they seem to stay the same.

For more information about how we can help you with your Human Resources and hiring processes, call us at 888-700-8512, request a proposal or contact us.

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