When May Religious Charitable Groups Discriminate in Employment Based on Religion?

A Ninth Circuit panel issued three very interesting opinions on this subject today in Spencer v. World Vision, Inc. The opinions are long and detailed; if you’re interested in the issue, you should read them. But here’s the short summary:

1. “World Vision describes itself as ‘a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.'” It is not affiliated with any particular church organization, but it is self-consciously Christian, and insists that its employees be Christian.

2. Title VII of the Civil Rights Act of 1964 bars religious discrimination in employment, but exempts (in § 2000e-1) religious discrimination by “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 [entity] of its activities.” (This is separate from the bona fide occupational qualification exemption and the ministerial exemption; for more on those, see here.) Churches and sufficiently religious schools qualify; the question is whether religious charities that don’t focus on worship or education do.

3. Judge O’Scannlain offers this test: “a [A] nonprofit entity qualifies for the section 2000e-1 exemption if it establishes that it [B] is organized for a self-identified religious purpose (as evidenced by Articles of Incorporation or similar foundational documents), [C] is engaged in activity consistent with, and in furtherance of, those religious purposes, and [D] holds itself out to the public as religious.” (All prong lettering here and below is mine.)

4. Judge Kleinfeld, concurring in the judgment, offers this: “To determine whether an entity is a ‘religious corporation, association, or society,’ [note the exclusion of “religious … educational institution[s], which Judge Kleinfeld would treat somewhat differently -EV] determine whether [B] it is organized for a religious purpose, [C] is engaged primarily in carrying out that religious purpose, [D] holds itself out to the public as an entity for carrying out that religious purpose, and [E] does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.” (The lettering doesn’t start at A, because my point here is to note the similarities between the O’Scannlain and Kleinfeld tests.)

5. Judge Berzon, dissenting, seems to offers this: “Congress used the terms ‘religious corporation, association … or society’ … to describe a church or other group [F] organized for [F1] worship, [F2] religious study, or [F3] the dissemination of religious doctrine.” (I assume this is the exclusive test that the opinion proposes; please correct me if I’m misreading it.)

The policy arguments are too long and detailed for me to summarize here; please read the opinions and see what you think of them. Thanks to Prof. Rick Hasen for the pointer.

UPDATE [Jan. 25, 2011]: The panel issued a revised opinion which includes a two-judge per curiam explicitly agreeing on a rule: “[A]n entity is eligible for the section 2000e-1 exemption, at least, if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.”