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May Jewish Community Center Discriminate Based on Religion?

Title VII of the federal Civil Rights Act generally bars employers from discriminating based on religion, but exempts religious discrimination by any "religious corporation, association, educational institution, or society." Those terms, however, aren't precisely defined, and while they create plenty of black and white zones, there's also a good deal of gray area. Leboon v. Lancaster Jewish Community Center Ass'n, a Third Circuit decision filed last week, explores this as to a Jewish Community Center; the Center had a substantial religious component to its activities, but was not under control of any particular synagogue or rabbinical organization. The two-judge majority said the Center was a religious organization covered by the exemption. One dissenter held the contrary, and would have read the statutory exemption as limited to "only those entities that ... are controlled by a religious sect."

Note that there's a separate doctrine, developed under the First Amendment, that allows discrimination based not only on religion but also race, sex, and the like, but that's limited to ministers and other employees with distinctively religious jobs. We're talking here about the categorical statutory exemption -- though only from the ban on discrimination based on religion -- of all employees of religious corporations, associations, educational institutions, or societies.

Tony Tutins (mail):
If the LJCC is a religious organization, so is your local Knights of Columbus Hall. It sees itself as a center for the local Catholic community, identifies itself as Catholic through the crucifix prominently displayed over one end of the hall, relies on coreligionists for financial support, and offers youth programs with a Catholic content. The Christian religious calendar provides the rhythm for K of C's yearly (and even weekly) activities; the parish priest serves as an advisor to the K of C council, and as chaplain; the members pray for vocations and for the sick and elderly; encourage vocations; lend money to the diocese to build new churches; and the Council began meetings with prayers and remained acutely conscious of the Catholic character of the organization. These characteristics of the Knights of Columbus Hall, taken together, clearly point to the conclusion that the Knights of Columbus Hall is primarily a religious organization.
9.28.2007 8:52pm
Paul Barnes (mail) (www):
Tony, you also have to be a Catholic male in good standing to become a Knight of Columbus.
9.28.2007 9:40pm
Eugene Volokh (www):
Tony Tutins: You might well be right, and the result sounds quite reasonable; the Knights of Columbus Hall may well be a "religious ... association ... or society."
9.28.2007 9:43pm
Dave N (mail):
I agree with the decision. I think the court got the right result.

On an interesting, off topic point, the majority opinion was written by Senior Judge Jane Roth, the wife of former U.S. Senator William Roth of Delaware. The dissent was written by Judge Marjorie Rendell, wife of Pennsylvania Governor Ed Rendell.

In an election where a former First Lady is the leading candidate for President and currently is the junior Senator from New York--and her husband's 1996 opponent's wife is the senior Senator from North Carolina, I always find it fascinating where the spouse, like Hillary Clinton, Elizabeth Dole, and Lynn Cheney, has her own established public role. Good for them--and good for our society that women can have their own public persona separate from their politician husband.
9.28.2007 9:46pm
Tony Tutins (mail):
Now I'm thinking that any group of co-religionists could be a religious organization.
9.28.2007 10:10pm
GaryH (mail):
This is the sort of Jesuitical hairsplitting that results from violating the property rights of business owners. That right includes the power to exclude others, be they employees or customers — from one's property. A property owner's reasons for that exclusion are not, properly speaking, the province of the government. Those reasons might be silly. ("I don't like short people.") They might be immoral. ("I don't like minorities.") But then it's not the government's function to legislate silliness or morality.

And this is a prime example of how the law today, in large part due to the abrogation of property rights, has degenerated into piecemeal exceptions. A law, e.g., Title VII, that makes the same action illegal for some but legal for others is a perversion of law's universal character.
9.28.2007 10:14pm
DG:
I dont understand - I've known several gentiles working for Jewish communal organizations. Maybe not in judaic program stuff, but in all sorts of other areas. That goes for Shuls, too. Why do you need a Jew to keep the books or fix the boiler? Who would care?
9.28.2007 10:19pm
Frater Plotter:
Tony: This hairsplitting is no more Jesuitical than it is rabbinic (or talmudic, or perhaps Pharisaical?) or, for that mater ... sharianical?
9.28.2007 11:22pm
Frater Plotter:
My comment was, of course, addressed not to Tony but to GaryH. My apologies.
9.28.2007 11:22pm
Visitor Again:
A law, e.g., Title VII, that makes the same action illegal for some but legal for others is a perversion of law's universal character.

Nonsense. The law frequently makes such distinctions. In fact, that is one of its chief purposes.
9.29.2007 12:23am
M. Lederman (mail):
Eugene: The question about the JCC's eligibility for the title VII exemption is a close one. I think the dissent probably got it right; there are no bright lines, however, and there are reasonable arguments on both sides. See pages 7-8 of http://balkin.blogspot.com/olc.charitablechoice.pdf.

But it's irrelevant to the case -- the wrong question to be asking, because even if the JCC is entitled to the 702(a) exemption, its motion for summary judgment should have been denied. You write that 702(a) "exempts religious discrimination by any 'religious corporation, association, educational institution, or society.'" That's not right. The exemption only allows the qualifying employer to favor coreligionists, i.e., to employ individuals "of a particular religion." It "merely indicates that such institutions may choose to employ members of their own religion without fear of being charged with religious discrimination." Boyd, 88 F.3d at 413.

Therefore, if the JCC fell within 702(a), it would be entitled to decide that the position would be open only to Jews. But it could not discriminate against, e.g., Muslims, or (as in this case) evangelical Christians.

The claim here is not that the JCC favored Jews. It is that the JCC fired the plaintiff on the basis of her "evangelical Christianity" (page 2) -- in particular, because she attended a Jews for Jesus concert (page 4). The JCC's defense is not that it may discriminate in favor of Jews -- it doesn't claim to do so -- or that the position in question is reserved to Jews (again, no such claims), but instead that "LeBoon’s position (a fulltime bookkeeper) was unnecessary and could be performed by another co-worker."

Accordingly, the case simply doesn't implicate the 702(a) exemption.
9.29.2007 12:26am
V:
Dave N: In an election where a former First Lady is the leading candidate for President and currently is the junior Senator from New York--and her husband's 1996 opponent's wife is the senior Senator from North Carolina, I always find it fascinating where the spouse, like Hillary Clinton, Elizabeth Dole, and Lynn Cheney, has her own established public role. Good for them--and good for our society that women can have their own public persona separate from their politician husband.
---

Interesting way of looking at it. I just assumed that thugs with the skill sets to successfully manipulate the power of the state to rule over others and enrich themselves in the process attract as sexual mates other thugs who also enjoy the attractions of power and wealth. That's always been the case. The only thing that is new is, with the growing desire for gender equality in our society, the female partners-in-crime can now rule directly rather than from behind the scenes.
9.29.2007 2:26am
GaryH (mail):
Visitor Again wrote: "Nonsense. The law frequently makes such distinctions. In fact, that is one of its chief purposes."

I'm not sure "nonsense" is an argument. That said, the rest of your response misses my point. I am not referring to the law as it is, but rather to the law as it ought to be.

I am well aware that there are many "laws" today that give special favors and exemptions to particular groups. But then that is one of the reasons why America is regressing to a status society.
9.29.2007 12:35pm
3L 2 cents:
M. Lederman: While your analysis of Title VII that it does not permit a religious organization (e.g., a JCC in the 3rd Circuit) to fire an employee because of her religion, yet keep the position open to non-Jews is logical, and at least one Sixth Circuit panel would agree, I don't think that interpretation of Title VII is universally accepted.

First, any discussion of racial discrimination by religious organizations in Boyd is dicta given that Boyd was about sex--in particular pregnancy--discrimination. Additionally, the Supreme Court's language in Corporation of Presiding Bishop while hearing a religious discrimination case seems broader:

Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. 2000e-1, exempts religious organizations from Title VII's prohibition against discrimination in employment on the basis of religion.

It is just as likely that the statute should be read to take all Title VII religious discrimination by religious organizations out of the Title VII scope. Even if your interpretation would support the spirit of Title VII, that doesn't mean Congress was willing to touch religious organizations with a 10-foot pole. As such, your interpretation may be better suited to an amendment to Title VII than a decision applying it.

In addition to other Circuits’ unwillingness to interfere with a religious organizations’s discrimination against persons of other religions, e.g., Little v. Wuerl, 929 F.2d 944, 947 (3rd Cir. 1991) (finding the First Amendment precluded judicial interference with the religious school’s decision to terminate a non-Catholic teacher for remarrying), many of them have found an effort to impose Title VII restrictions on sex and other class discrimination on religious organizations to implicate First Amendment concerns and chosen to interpret the Title VII exemption broadly enough to avoid the constitutional conflict, e.g., EEOC v. Catholic Univ., 83 F.3d 455 (D.C. Cir. 1996) (dismissing nun’s action for sex discrimination against the university for a faculty position teaching the canons of the church); see Starkman v. Evans, 198 F.3d 173, 175 (5th Cir. 1999) (finding the First Amendment barred a choir director’s claims against the church under the ADA). While many of these cases involved persons working as ministers or other more religion-oriented positions (as compared to a bookkeeper), they still suggest that with the broad language of Title VII’s exemption, courts should be wary of assuming that Congress intended to regulate any religious discrimination by religious organizations. Precluding religious discrimination with regard to a secular bookkeeping position might easily fall within the spirit of Title VII, but the courts cannot and should not read such a provision into the statute if Congress chose not to put it there.
9.29.2007 12:52pm
Elliot Reed:
Hrm, let's see.

Arresting people and throwing them in jail is legal for police officers, but not others.

Performing heart surgery is legal for licensed medical doctors, but not others.

Voting is legal for U.S. citizens, but not others. Similarly with unrestricted exit and entry from and into the U.S. (though of course other countries may take issue with the "exit" bit).

Sex with sixteen year-olds is legal for minors, but not people who are "too old" (the exact details vary by state).

Selling someone else's property and keeping the money is legal for people who have entered into the right kinds of agency contracts, but not others.

Waltzing into someone's apartment without their consent is legal for landlords, but not random people on the street.

etc. etc. etc. "Legal for some, not legal for others" is something the legal system couldn't do without. The disputes have to do with which distinctions are legitimate, not whether distinctions are legitimate at all.
9.29.2007 1:01pm
M. Lederman (mail):
3L2C: Thanks for responding. I think it's fairly clear from the legislative history and the language of the statute that Congress meant to protect only the right to hire co-religionists and not to, e.g., say "No Jews allowed," or "We don't hire Muslims." The whole impetus behind the exemption was to respect those religious institutions that make hiring decisions only within the flock, so as to strengthen religious ties internal to the community (see Brennan's concurrence in Amos, which is the best expression of this objective). It was not intended as a form of blanket immunity to avoid judicial oversight, akin to the ministerial exception at issue in Catholic Univ. and Starkman (which immunizes certain employment positions from any scrutiny at all, on any religious-discrimination grounds).

I concede that there are no cases directly on point, because as far as I know no employer has ever invoked the 702(a) exception as a grounds for anything other than co-religionist preferences. But my recollection of the legislative history, including of the 1972 amendments, was that the "of a particular religion" language was designed quite deliberately for this limited but important purpose.
9.29.2007 3:08pm
M. Lederman (mail):
Sorry, I meant to write that the ministerial exception immunizes certain employment positions from scrutiny against any claims of discrimination at all, religious or otherwise (e.g., sex, race, etc.). The 702(a) exemption is quite a different thing.
9.29.2007 3:11pm
ffsadf (mail):
Tony, you also have to be a Catholic male in good standing to become a Knight of Columbus中国呼吸网 肿瘤网
9.30.2007 4:37am
Milhouse (www):
It seems to me that it's perfectly reasonable for any ethnic club or organisation to give preference in employment to members of that ethnicity. If I'm running a Nepalese community centre and looking to hire a janitor, and I know of a Nepalese person in need of employment, surely providing that employment is part of the purpose of the centre, even though the job could be done just as well by anyone.

And if I hired a janitor and then found out that he had attended a fundraiser for the Maoist insurgency, I'd feel perfectly justified in firing him, regardless of what criteria I'd used in hiring him, because I'd see his affiliation as incompatible with the purposes of my organisation.
9.30.2007 5:58pm
New Pseudonym (mail):

I think it's fairly clear from the legislative history and the language of the statute that Congress meant to protect only the right to hire co-religionists and not to, e.g., say "No Jews allowed," or "We don't hire Muslims."

But that means the court gets to decide who is a co-religionist. That is about the clearest First Amendment violation I can think of.

Example: There are three synagogues about equidistant from where I live (full disclosure: I am Catholic). One is Conservative, one is Hassidic, one is Messianic. I feel confident that the members of 1 and 2 would deny that members of 3 are Jews (religiously), and possibly 1 would feel the same way about 2. (They don't walk to services on Friday evening, they don't dress modestly, etc.)

So yes, of course, let the courts decide exactly how a "religious organization" can decide who to hire.
9.30.2007 9:09pm
Eli Rabett (www):
The places for prayer and study occupy a very large part of most Jewish Centers, one might even say they are central. As to defining who is a Jew, ask mom.
9.30.2007 11:07pm
Ken Arromdee:

But that means the court gets to decide who is a co-religionist. That is about the clearest First Amendment violation I can think of.


No, it means the court has to assess the motives of the person doing the hiring and decide "did that person refuse to hire them in the belief that they are not a co-religionist". The court itself doesn't have to decide whether they are or not. It's the flip side of antidiscrimination laws which ban discrimination based on perceived group identity.
10.1.2007 12:59pm
New Pseudonym (mail):
OK, then let's change the hypothetical. A Catholic school dismisses a teacher because she is a sedevacantist, and therefore not a true Catholic. She responds that the dismissal is improper because she is a true Catholic. The grounds for dismissal are undisputed, the only dispute is whether she is a true Catholic. Does the court now inquire into the legitimacy of the election of John XXIII to determine whether the dismissal on the basis that she is not a true Catholic is valid?
10.1.2007 5:44pm
David M. Nieporent (www):
New Pseudonym -- your new hypothetical is no better. The courts don't decide whether the person is a Catholic or not. They decide what the motive for firing/not hiring the person is.

If the motive is that the person isn't a true Catholic, that's fine. They don't inquire into whether the person is a true Catholic -- just what the motive is.

If the motive is that the person is Hindu, then (in Lederman's formulation, which is too narrow, IMO) that's illegal. They're still not inquiring into whether the person is actually Hindu, but only what the motive is.

In other words, they can fire/not-hire all non-Catholics by whatever definition, but they can't single out Hindus and say "we'll hire everyone except them."
10.1.2007 6:21pm
Tony Tutins (mail):
Sure, you have to be Catholic to be a Knight of Columbus and thus manage the hall. But you don't have to be a Catholic to be a landscaper, a janitor, or a caterer working for the hall.

Eli, the decision does not talk about the JCC having places of prayer or study, just that the JCC was used occasionally as a study hall, and that the board of trustees prayed before their session. Basically the JCC building involved here sounds like any clubhouse, albeit with a kosher kitchen.
10.1.2007 9:26pm