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Legal Commentary

Dr. Jillian Todd Weiss

Ramapo College of New Jersey
Assistant Professor of Law and Society
School of Social Science and Human Services

http://jweissdiary.blogspot.com/index.html

 University firing transgender prof

http://jweissdiary.blogspot.com/2007/02/university-firing-transgender-prof.html

From Michigan comes the story of Professor Julie Marie Nemecek, who has been fired from her university post as assistant dean of adult studies and Associate Professor at Spring Arbor University. The University is firing the professor because she is transitioning from male to female. She has filed a complaint with the EEOC.

 In response to the EEOC complaint, the university cites its Bona Fide Occupational Qualification (BFOQ) that legally allows hiring only Christian employees. "We expect our faculty to model Christian character as an example for our students," read a university statement issued by a public-relations firm. Faculty who "persist with activities that are inconsistent with the Christian faith" are subject to firing. College officials said the Christian mandate is critical to the university and is protected by state and federal civil-rights laws.

Nemecek’s attorney, the redoubtable Randi Barnabee, argues that, to the contrary, Spring Arbor's main focus is education. It admits students of any faith, not all of its faculty is Christian, and it is a recipient of state and federal funds that prevent discrimination based on gender. "You cannot discriminate under the guise of religious freedom," Barnabee said. Barnabee is the one who won the Smith v. City of Salem decision in the Sixth Circuit, which found that Title VII sex discrimination includes transgender employees.

 In all our talk of Title VII, sex discrimination, and transgender employees, we have not yet addressed the fact that Title VII, by its own terms, has different rules when it comes to religion. The structure of Title VII on this point is confusing, and the poorly drafted amendments of 1972 and the addition of First Amendment issues by the courts make it worse. Legal scholars have largely ignored this quagmire. There is one recent article of

use specifically on the subject of the Title VII exception for religious educational institutions: Jamie Darin Prenkert’s Liberty, Diversity, Academic Freedom, And Survival: Preferential Hiring Among Religiously-Affiliated Institutions Of Higher Education, 22 Hofstra Labor and Employment Law Journal 1 (2004). As these articles go, it’s not too long – only 57 pages.

 The bottom line is that a religious school is explicitly allowed to employ people of a particular religion if it 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.” 42 U.S.C.A. § 2000e-2(e)(1)

 If it’s not connected to a religion in this way, it can still escape liability through the BFOQ requirement. This applies to any employer, not just educational institutions, and it permits using religion as a basis for employment “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.” 42 U.S.C.A. §

2000e-2(e)(1) This exception is difficult to prove because it requires proof of “bona fide occupational qualification” (BFOQ) of religion for “normal operations.” 

Many universities have religious roots, but that doesn’t mean they qualify for the exemption. The school has to be substantially controlled or supported by a church. For example, in EEOC v. Mississippi College, 626 F.2d 477, Mississippi College received the exemption because it was owned and operated by a church to train clergy in the faith. Similarly, in EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, the same was true of Southwestern Baptist Theological Seminary, which was principally supported and wholly controlled by an association of Southern Baptist churches for the avowed purpose of training ministers to serve the Baptist denomination. In Siegel v. Truett-McConnell College, 13 F.Supp.2d 1335, the school received the exemption because it proved that it was substantially controlled and managed by a church, which had the power to direct, restrict and govern the college. The college did not receive any federal or state funding, but did receive $714,934 in annual funding from religious sources. 

To the contrary, however, in Pime v. Loyola University, 803 F.2d 351 (7th Cir 1986), Loyola University did not receive the exemption. It was not supported, controlled or managed by the Society of Jesus, although the school based its mission and teaching on the Society’s principles. Similarly, in EEOC v. Kamehameha Schools, 990 F.2d 458, a K-12 school was not granted the exception because the teachers provided instruction in secular subjects in the traditional secular way, and there was nothing to suggest that adherence to the Protestant faith was essential to performance of job. The schools were essentially secular institutions operating within historical tradition that included Protestantism and had a primarily secular purpose and character rather than a primarily religious nature. 

The BFOQ requires a determination of whether the essence of the business would be undermined if the employer did not employ exclusively members of the given religion; that is, whether employing a member of the given religion is essential to the normal operation of the employer's business. The essence of the business can be determined by analyzing the service or product the employer provides. For example, the essence of an airline's business is transporting passengers, not making passengers feel psychologically secure while riding in an airplane. The determination of what constitutes the essence or fundamental objective of an employer's business or enterprise and of what constitutes the normal operation of that business depends on the facts. Therefore, the determination must be made on a case-by-case basis. If the job in question has been successfully performed by members of other religions without impairing the normal operation of the business, either for the employer or for employers with similar businesses, then there is no BFOQ. EEOC Compliance Manual, Section 625.3 

It must be kept in mind that all this relates specifically to the hiring of people based on religion. The employee, in order to prevail in court, must show that the adverse action is motivated by religion. There is a serious dispute in the courts as to whether being fired by a religious institution for violation of religious rules, such as being pregnant and unmarried, or for being gay, or for getting married without obtaining a religious divorce or annulment, or committing adultery, is based on religious discrimination. Some courts have said such actions are, or can be, a Title VII violation subjecting the employer to penalties. Vigars v. Valley Christian Center of Dublin, Cal., 805 F.Supp. 802 Others have said it is discrimination based on failure to conform to behavioral standards, not religious beliefs. Pedreira v. Kentucky Baptist Homes for Children, Inc., 186 F.Supp.2d 757; Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618; McCrory v. Rapides Regional Medical Center, 635 F.Supp. 975 Others have said it is religious discrimination, but that it is permitted to dismiss a person whose behavior violates religious principles as a BFOQ or on First Amendment grounds. Boyd v. Harding Academy of Memphis, Inc., 887 F.Supp. 157; Ganzy v. Allen Christian School, 995 F.Supp. 340; Little v. St. Mary Magdalene Parish, 739 F.Supp. 1003; Gosche v. Calvert High School, N.D.Ohio 1998, 997 F.Supp. 867, affirmed 181 F.3d  

Turning from this legal jargon to assessing the relative merits of Professor Nemacek’s complaints as against Spring Arbor University, the school’s website does not indicate that the school is supported, controlled or managed by a religion. Therefore, it is going to have to show a BFOQ. But Nemecek is not a clergyman or a teacher of religious classes, and it doesn’t hire only religious Wesleyan Protestants (the school’s denomination). Its curriculum is not directed solely to the propagation of a religion, since most of its courses are secular. In fact, its website discloses that its mission is based on what it calls “The Concept,” which includes secular as well as religious aims. “The Concept goes to the heart of our mission as a university. By anchoring our mission to the “lifelong involvement in the study and application of the liberal arts,” we connect with a 2,500 year history dating back to Socrates, Plato and Aristotle. http://www.arbor.edu/pdf/keepingtheconcept.pdf  This doesn’t bode well for its BFOQ defense. 

Spring Arbor’s claim is also made more difficult by the fact that it is located in the State of Michigan. The Federal Court of Appeals for the Sixth Circuit, which includes Michigan, has ruled that Title VII sex discrimination includes discrimination based on transgender identity. In addition, Michigan has its own statutes that prohibit gender identity discrimination. The courts have ruled in many cases that Title VII’s religious exceptions does not permit race or sex discrimination. My guess is that Spring Arbor is not going to prevail on its BFOQ defense. 

Last modified: 12/24/13