The Civil Rights Act of 1964

By Richard R. Hammar, J.D., LL.M., CPA

© Copyright 1991, 1998 by Church Law & Tax Report.  All rights reserved.  This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service.  If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m43

The Civil Rights Act of 1964 was enacted by Congress “to achieve a peaceful and voluntary settlement of the persistent problem of racial and religious discrimination.”¹ Title II of the Act prohibited discrimination in “places of public accommodation” on account of religion or race; Title III and IV ordered an end to all racial and religious segregation in “public facilities” and in public education; Title VI mandated that no recipient of federal assistance discriminate on racial grounds; and Title VII mandated nondiscrimination in employment. The other Titles of the Act are of no direct relevance to religious organizations. Titles VI and VII are of the greatest significance to religious organizations, and they shall be considered in turn.

Since the term person is defined elsewhere in the Act to include individuals, corporations, and unincorporated associations,² it is safe to assume that Title VI applies to churches, religious schools, and all other religious institutions and organizations. Accordingly, if any religious institution or organization receives any form of federal financial assistance, it may not discriminate on the basis of “race, color, or national origin” in expending such funds. Schools, childcare centers, orphanages, and nursing homes operated by or affiliated with religious organizations are the types of institutions most likely to receive direct federal financial assistance.³

Indirect forms of federal financial assistance will also trigger the application of Title VI. To illustrate, a federal court has ruled that a religious college receives federal financial assistance when some of its students receive veterans' benefits.⁴ Another court has concluded that “a tax deduction for charitable contributions is a grant of federal financial assistance within the scope of the 1964 Civil Rights Act.”⁵ This reasoning would subject virtually every tax--exempt religious organization to the provisions of Title VI. This decision has been questioned,⁶ and no other court seems to have applied its radical conclusion. Something more than a government--granted exemption from taxation will thus be necessary for Title VI to apply to religious organizations, but something less than direct payments will suffice. One court has observed: “The method of payment does not determine the result; the literal language of [Title VI] requires only federal assistance—not payment—to a program or activity for Title VI to attach.”⁷

This general ban on discrimination applies to all employers, including religious organizations, engaged in an industry or activity “affecting commerce,” unless one of the following exceptions is applicable.¹

a. Less Than 15 Employees

Since congressional authority to enact the Civil Rights Act of 1964 was based upon congressional power to regulate interstate commerce,² Congress has constitutional authority to prohibit only discrimination by employers actually engaged in some activity or business affecting commerce. Congress has conclusively presumed that organizations employing less than fifteen employees cannot be deemed to be engaged in interstate commerce.³ This limitation has been held to be jurisdictional.⁴ Part--time employees can be counted in computing an organization's total number of employees.⁵ Accordingly, organizations that have not employed “fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year” are not subject to the prohibition of employment discrimination contained in Title VII of the Civil Rights Act of 1964. A church employing more than fifteen persons can also establish that it is exempt by demonstrating that it is not engaged in a business or activity “affecting commerce.” In general, churches that are not engaged in commercial enterprises and that engage in few if any interstate business transactions arguably are not engaged in an activity affecting commerce and thus are not covered by the Act. Unfortunately, such a determination is based entirely on how narrowly or expansively a particular judge wants to construe the phrase affecting commerce.

b. Religious Educational Institutions

Title VII, Section 703(e)(2) of the Civil Rights Act of 1964 specifies:

[I]t shall not be an unlawful employment practice for a school, college, university, or other educational institution or institution of learning to hire and employ employees of a particular religion if such school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.

This provision exempts religious educational institutions, whether at the primary, secondary, or college level, from the prohibition of religious discrimination contained in Title VII of the Civil Rights Act of 1964. Significantly, this provision speaks generally of the right of religious educational institutions to discriminate on the basis of religion in the hiring of employees who will directly promote religious belief, such as teachers, as well as those who will not, such as clerical, custodial, and administrative personnel. The United States Supreme Court has ruled that this exemption does not violate the first amendment's “nonestablishment of religion” clause.⁶

c. Religion as a “Bona Fide Occupational Qualification”

Title VII, Section 703(e)(1) of the Civil Rights Act of 1964 states:

Notwithstanding any other provision of this title . . . it shall not be an unlawful employment practice for an employer . . . to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . .

If an employer otherwise subject to the Civil Rights Act of 1964 can demonstrate that religion is a bona fide occupational qualification for a particular position, then the employer may lawfully discriminate on the basis of religion in filling the position.

d. Employment Decisions of Religious Corporations

Finally, Title VII, section 702, of the Civil Rights Act of 1964 states:

This title shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

This provision permits religious corporations, associations, and educational institutions to discriminate on the basis of religion in the employment of any person for any position. As originally enacted, section 702 permitted religious employers to discriminate on the basis of religion only in employment decisions pertaining to their “religious activities.” Congress amended section 702 in 1972 to enable religious organizations to discriminate on the basis of religion in all employment decisions. In the years following the 1972 amendment, a number of federal courts suggested that the amendment violated the first amendment's “nonestablishment of religion” clause. To illustrate, one court characterized the amendment as “a remarkably clumsy accommodation of religious freedom with the compelling interests of the state, providing . . . far too broad a shield for the secular activities of religiously affiliated entities with not the remotest claim to first amendment protection . . . .” ⁷The court conceded that it would be unconstitutional to prohibit religious organizations from discriminating on the basis of religion in employment decisions pertaining to religious activities, but it concluded that allowing religious organizations to discriminate on the basis of religion in any employment decision went too far. Other courts reached the same result.⁸

In 1987, the United States Supreme Court resolved the controversy concerning the legal validity of section 702 by ruling unanimously that it did not violate the first amendment's nonestablishment of religion clause.⁹ The case involved a maintenance employee of a Mormon church--affiliated gymnasium in Salt Lake City, Utah, who was fired because he failed to comply with the church's standards regarding church attendance, tithing, and abstinence from coffee, tea, alcohol, and tobacco. The employee sued the church, alleging that his dismissal violated the ban on religious discrimination in employment decisions contained in Title VII of the Civil Rights Act of 1964. The church asserted that the exception contained in section 702 of the Act permitted it to discriminate in any employment decision on the basis of religion. The employee countered by claiming that the exception violated the first amendment's ban on the establishment of a religion. A federal district court agreed with the employee, and ordered the employee reinstated with back pay. The church appealed directly to the Supreme Court.

The Supreme Court began its opinion by emphasizing that “there is ample room under the establishment clause for benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference.” It evaluated the constitutionality of the section 702 exemption on the basis of a three--part test it devised in 1971. Under this test, a law challenged on the basis of the nonestablishment of religion clause is permissible only if it satisfies three requirements—(1) it has a clearly secular purpose, (2) its primary effect is neither the advancement nor the inhibition of religion, and (3) it does not result in an excessive entanglement between church and state.¹⁰ The Court concluded that “the exemption involved here is in no way questionable” under the three--part test. The section 702 exemption met the first part of the test since “under the Lemon analysis, it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” In concluding that the section 702 exemption met the second part of the test, the Court observed that

undoubtedly, religious organizations are better able now to advance their purposes than they were prior to the 1972 amendment to section 702. But religious groups have been better able to advance their purposes on account of many laws that have passed constitutional muster: for example, the property tax exemption . . . . A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to [have the primary effect of advancing religion] it must be fair to say that the government itself has advanced religion through its own activities and influence.¹¹

The Court also concluded that the section 702 exemption did not result in an excessive entanglement between church and state. On the contrary, “the statute effectuates a more complete separation of the two and avoids . . . intrusive inquiry into religious belief . . . .”

In responding to the dismissed employee's claim that section 702 provided adequate protection to religious employers prior to its amendment in 1972, the Court observed:

[The dismissed employee argues] that . . . section 702 provided adequate protection for religious employers prior to the 1972 amendment, when it exempted only the religious activities of such employers from the statutory ban on religious discrimination. We may assume for the sake of argument that the pre--1972 exemption was adequate in the sense that the free exercise [of religion] clause required no more. Nonetheless, it is a significant burden on a religious organization to require it, on pain of substantial liability, to predict which of its activities a secular court will consider religious. The line is hardly a bright one, and an organization might understandably be concerned that a judge would not understand its religious tenets and sense of mission. Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.¹²

e. The Clergy--Church Relationship

The relationship between a church and its minister is accorded preferential treatment under civil rights laws. To illustrate, a federal appeals court made the following observation in a case involving a dismissed minister's claim of unlawful discrimination: “This case involves the fundamental question of who will preach from the pulpit of a church, and who will occupy the church parsonage. The bare statement of the question should make obvious the lack of jurisdiction of a civil court. The answer to that question must come from the church.”¹³ The court acknowledged that the government's interest in preventing employment discrimination “is compelling,” but it concluded that such an interest “does not override” the protection that the church claims under the constitutional guaranty of religious freedom.

A number of courts have ruled that the civil courts are without authority to resolve claims by dismissed clergy that their dismissals violated Title VII of the Civil Rights Act of 1964. To illustrate, in one case a minister--employee of the Salvation Army alleged that her employer had violated the Civil Rights Act of 1964 by paying female officers smaller salaries than similarly situated males. A federal appeals court concluded that the relationship of the Salvation Army to its officers was a church--minister relationship, and that the application of the provisions of Title VII to the employment relationship existing between a church and its minister would result in an impermissible encroachment by the government into an area of purely ecclesiastical concern.¹⁴

Similarly, a federal district court in Missouri ruled that a hospital chaplain could not sue the hospital for alleged age and sex discrimination following her dismissal.¹⁵ The former chaplain was an ordained Episcopal priest who had served as chaplain of a church affiliated hospital for 10 years. Following her dismissal, the former chaplain sued the hospital on the grounds that her dismissal violated the federal Civil Rights Act of 1964. The court concluded that the constitutional guaranty of religious freedom prohibited the Act from being applied in this context, and therefore the court was without authority to resolve the former chaplain's claims. In reaching its decision, the court emphasized that the hospital was “a church--affiliated institution with substantial religious character,” and that the former chaplain's position was “inherently religious.” The court observed that the former chaplain had acted as a minister “by visiting hospital patients, reading the Bible to them, praying with them, performing baptisms, presiding at funerals, administering communion, performing chapel services, etc.” These activities, concluded the court, “are inherently religious and so confer on [the] chaplain position its inherently religious nature.”

The court also rejected the former chaplain's claim that since her lawsuit alleged sex discrimination, any consideration of the ecclesiastical nature of her duties was inappropriate. It noted that the hospital had asserted that the dismissal was based in part on the former chaplain's failure to follow “liturgical requirements,” and accordingly any review of her dismissal would inevitably involve the court in ecclesiastical considerations. The court quoted with approval from a 1928 decision of the Supreme Court: “Because the appointment is a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them. In the absence of fraud [or collusion] the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive.”¹⁶

A Michigan state appeals court ruled that a dismissed church organist could not sue the church for discrimination under state law.¹⁷ The court concluded that the organist was “more than just an organist. He was the head of the musical branch of the Catholic liturgy [at his church and] was intimately involved in the propagation of Catholic doctrine and the observance and conduct of Catholic liturgy by the congregation. On the basis of `the function of his position' [he] was, thus, `clergy' . . . [and his] discrimination claim is therefore barred” by the constitutional guaranty of religious freedom. The court rejected the organist's claim that he was merely “a secular employee who supported [the church's] religious activities but did not engage in the propagation of religious doctrine or faith.” The court did acknowledge, however, that in cases involving “church employees who are not involved in the propagation of religious faith or religious doctrine, courts have held that [discrimination] actions against religious employers are not barred by the free exercise clause notwithstanding the employers' arguments that their employment decisions were founded on religious beliefs.” It cited cases involving a lay teacher at a church--operated school, an editorial secretary for a religious publisher, a professor of psychology at a church--operated college, and administrative staff at a seminary.

Regulation of Charitable Solicitations

Limitations on Charitable Giving

Federal and State Securities Laws

Copyright Law

Zoning Law and Churches

Building Codes

Nuisance

Government Investigations

Judicial Resolution of Church Disputes

Church Landmarking

Eminent Domain

The Civil Rights Restoration Act of 1987

Americans with Disabilities Act

Political Activities by Churches and Other Religious Organizations