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90 Chapter 3
In the United States, provisions outlawing employment discrimination
on the grounds of race, colour, religion, sex and national origin are
contained in Title VII of the Civil Rights Act, 1964, the basic federal law
against employment discrimination. Unlike the Equality Act, Title VII
incorporates a statutory exemption (section 702) which initially permitted
discrimination on the grounds of religion by religious associations in
respect of religious activities only, but was extended in 1972 to cover all
non-profit-making activities of religious associations. 68 In Amos, a janitor
employed for 16 years at a Mormon-run gymnasium was dismissed for his
failure to meet the requirements for a certificate of eligibility for attendance
at Mormon temples. The dismissal clearly constituted job discrimination
on the basis of religious affiliation, prohibited under Title VII. The janitor
challenged the constitutionality of the section 702 exemption, in as much
as it permitted religious associations to discriminate on religious grounds
when filling non-religious positions, a category into which his own job fell.
The District Court ruled that the amendment to the Title VII
exemption was unconstitutional because it enhanced the ability of
religious associations to further their beliefs in situations where ‘people's
opportunity to earn a living is at stake’. 69 It held that, since there was no
clear connection between the business of the gym and the beliefs of the
Mormon Church, and since none of the janitor's duties were ‘even
tangentially related to any conceivable religious belief or ritual of the
Mormon Church or church administration’, 70 the section 702 exemption
would be impermissibly broad if interpreted as covering the requirement
that a janitor in a gymnasium must be a member in good standing of the
Mormon church. The District Court's ruling is consistent with Basson J's
holding in Strydom that certain jobs (typists, for example) are so distant
from the doctrinal core of the church's activities as to render an exemption
from anti-discrimination legislation unwarranted.
A unanimous US Supreme Court, however, declined to follow the
District Court. In his concurring judgment, Brennan J noted that the
section 702 exemption ‘necessarily has the effect of burdening the religious
liberty of prospective and current employees’ since it coerces such
individuals into ‘the choice of conforming to certain religious tenets or
losing a job opportunity’. 71 At the same time, he observed, ‘religious
organisations have an interest in autonomy in ordering their religious
affairs’. 72 Resolving the clash between the rights of religious organisations
and those of employees would require ‘ideally’ that ‘religious
organisations should be able to discriminate on the basis of religion only
68 It is worth emphasising that this exemption only covers religious discrimination and
not discrimination based on race, gender or sexual orientation.
69 Amos v Corporation of the Presiding Bishop 594 F Supp 791 (Utah 1984) 818.
70 Amos (n 69 above) 802.
71
n 67 above, 340.
72 As above.