LGBTQ or Religious Rights: Which One Trumps Employment Decisions at a Christian School?

The power to hire and fire is vital to the health of a religious institution. So, is a religious school entitled to hire its staff and teachers on the basis of those who will, in addition to their educational qualifications, be role models by living and teaching the life prescribed by the faith that forms the basis and purpose of the school?  This is no idle question for religious schools today as government regulation, and particularly anti-discrimination laws, are impacting their employment decisions and in turn, their ability to carry out their religious mission.  

To the point, the Equal Employment Opportunity Commission, (EEOC,) the government agency that enforces the federal anti-discrimination laws under Title VII, has taken a restricted position with regard to the rights of religious institutions in the workplace. It’s position is summed up in a 2010 law review article by Chai Feldblum, an Obama appointee to the EEOC: where the rights of the LGBT community and people of sincere religious conviction conflict, “society should come down on the side of protecting the liberty of LGBT people.” 

While the fight for religious freedom is far from over, there are encouraging developments on the federal level with regard to the ability of schools to make employment decisions based on their religious convictions. Locally, in the 7th Circuit, one of those positive developments is the recently decided federal appellate case of Fitzgerald v. Roncalli High School, Inc. and Roman Catholic Archdiocese of Indianapolis Inc. in which the Court addressed the question of a religious employer’s right to hire/fire employees based on religious considerations. 

The Fitzgerald case is the second of two recent cases involving a Catholic high school which was sued under Title VII (among other claims) for not renewing the contracts of two of its guidance counselors who then complained of discrimination on the basis of their sexual orientation. Starkey v. Roman Catholic Archdiocese of Indianapolis Inc, 41F. 4th 931 (7th Cir. 2022) was the earlier case involving the same high school. Both should be read in tandem to get a full understanding of the employment law in the 7th Circuit with regard to discrimination on the basis of sex (now including sexual orientation) for religious institutions.  

Finding that the guidance counselors were ‘ministers,‘ both cases upheld the religious school’s right not to rehire the counselors on the basis of the Ministerial Exception. In brief, the Ministerial Exception gives religious institutions a First Amendment defense when sued for discrimination by employees who are categorized as “ministers.” But, beyond the protection afforded by the well established Ministerial Exception under the First Amendment, these two cases addressed a second far more controversial question: what happens in a Title VII discrimination case where a non-minister plaintiff asserts claims against a religious employer claiming sex discrimination?   

As to this second question, both Judge Easterbrook in Starkey and Judge Brennan in Fitzgerald examined a religious employer ‘s religious exemption as set forth in Title VII itself (42 U.S.C. Sec. 2000e-1(a).)  Judge Easterbrook, in his concurring opinion in the Starkey case found:   

“So when the (religious) exemption (of Title VII) applies, “all of Title VII drops out,” including the provisions prohibiting discrimination on non-religious bases (including sexual orientation) and providing for a mixed motive of liability. Id.  

Justice Brennan, in his concurring opinion in Fitzgerald, likewise raised the issue. As he phrased it: what must a court do when an employer provides a religious reason for an adverse employment decision that implicates a protected class other than religion such as in these cases where the plaintiffs claimed discrimination on the basis of sexual orientation? Judge Brennan’s concurring opinion, affirms that, as initially stated in Judge Easterbrook’s concurrence in Starkey: “A religious school is entitled to limit its staff to people who will be role models by living the life prescribed by the faith, which is part of ‘religion’ as Sec 2000e(j) defines that word.”  

Judge Brennen further addressed several district court’s opinions in the 7th Circuit which “sidestep employers’ religious justifications and find that so long as the plaintiff alleges discrimination based on a non-religious protected class, the exemption does not apply.” Rejecting the EEOC’s narrow application of the religious employer exemption under Title VII, Judge Brennan held that unless it is shown to be a pre-text:   

… like Judge Easterbrook, I see no principled way to limit the all-encompassing scope of this subchapter when the religious employer exemption applies… So, when a covered employer demonstrates that an adverse employment decision was made because the relevant individuals’ beliefs, observances, or practices did not conform with the employer’s religious expectations, the exemption would apply and bar a Title VII claim on the employment decision.  

This is good news for religious employers in the 7th Circuit.  In two successive 7th Circuit concurrences, discrimination on the basis of sex (sexual orientation) does not trump the religious employer’s religious exemption under Title VII, even where the employee is not categorized as a “minister.” But this good news must be qualified, for the battle over non-ministerial employees is ongoing in other federal Circuits Courts and awaits final determination from the U.S. Supreme Court. So too, many of the states including Illinois as well as local units of government such as Cook County and the City of Chicago, have their own anti-discrimination statutes that may come into play when discrimination is alleged in a religious institutions employment decisions or policies. So, stay tuned for further developments in employment law regarding religious institutions.  

Starkey v. Archdiocese of Indianapolis

In August 2021, the district court granted summary judgment dismissing Starkey’s employment discrimination suit. The court found that the undisputed facts showed Starkey “performed vital religious duties.” Roncalli High School had entrusted Starkey with the tasks of guiding students as they mature and grow into adulthood, communicating the Catholic faith to students, and helping shape the religious and spiritual environment at the school – all of which are vital religious duties.