PEACEFUL COEXISTENCE

232 Peaceful Coexistence Report
employees of religious schools do not know whether they are protected from invidious
discrimination or not.
From the perspective of the Civil Rights Commission, it is my view that the most troubling part
of this doctrine should be the clash of cultures in which ministers now find themselves. As
American citizens, they share in our cultural assumption that organizations, businesses, and the
government may not engage in invidious discrimination. In all likelihood, they also likely
presume, that a religious organization is less likely to engage in invidious discrimination, at least
when the discrimination is not driven by theology. Thus, while a minister cannot be surprised
that only men can be priests in the Catholic Church or rabbis in Orthodox Jewish congregations,
he or she can be very surprised when they are fired based on race, disability, or age.
I have spoken to a number of victims of discrimination by religious institutions, and they are
invariably shocked that they had fewer rights against invidious discrimination in a religious
institution than they did in a secular institution. They assumed not only that they did not shed
their civil rights at the church door, but also that a religious institution simply would not engage
in bare gender, race, disability, or age discrimination unconnected to theological tenets. Yet,
cases that were brought prior to Hosanna-Tabor were decided alleging such discrimination in
every category. 216 When the employees lost these cases based on the ministerial exception, they
felt wronged.
The federal government has the authority and power to, at least, reduce the likelihood of such
surprise and betrayal. It is my view that the federal (and state) civil rights laws should be
amended to require that religious organizations must disclose before employment whether the
employee is a “minister” for purposes of the ministerial exception and, therefore, whether the
employee will be protected by or foreclosed from the state or federal civil rights laws.
Religious organizations also should not be permitted to include in their employee materials for
ministers a non-discrimination policy without consequences. Consistent with the Hosanna-
Tabor decision, suits based on fraud or misrepresentation should be available if religious
organizations mislead applicants. The Internal Revenue Code also should be amended to provide
that any religious organization that misleads employees regarding the availability of civil rights
protections loses its tax-exempt status. 217
216
See Rweyemau v. Cote, 520 F.3d 198 (2d Cir. 2006) (holding a provision discriminating based on race
unconstitutional when applied to certain religions institutions); Petruska, 462 F.3d 294 (holding that, although Title
VII prohibits gender discrimination, the Equal Protection Clause prevents the application of Title VII to ministerial
functions within religious institutions); Coulee Catholic Sch. v. Labor & Indus. Review Comm'n, Dept. of Workforce
Dev., 768 N.W.2d 868 (Wisc. 2009) (holding that the ministerial exception applies when a teacher at a religious
elementary school brings an age discrimination claim); Hosanna-Tabor 132 S.Ct. 694 (holding that the ministerial
exception barred a disability claim); McKelvey, 800 A.2d at 858 (holding that a genuine issue of fact existed as to
whether sexual harassment claims could be brought without violating the First Amendment).
217
Bob Jones Univ. v. United States, 461 U.S. 574 (1983).