discrimination religion workplace religious-law
Is it legal to deny a priest a job because he&#39;s atheist
<p>Hypothetically, if you had an Atheist looking to make money by becoming a priest, would the church be legally allowed to deny him the job because of his religion (or lack of), assuming he's still willing to talk about God as if he is Christian? I am to understand that you cannot deny someone a job on the grounds of religious beliefs, I'm wondering if it works the same way for religious figures in churches. (This can be applied in many other ways, a Muslim looking to become a Christian priest, etc.)</p>

<p>Yes: It is legal to deny someone a job as a priest because he is an atheist.</p>

<p>Churches are allowed to discriminate in employment based upon religion. <em>See</em>, for example, the <a href="https://www.eeoc.gov/policy/docs/religion.html#_Toc203359492" rel="nofollow noreferrer">EEOC compliance manual</a>. This says, in the pertinent part (citations included after the quoted material):</p>

<blockquote>
  <p>C. Exceptions</p>
  
  <ol>
  <li><p>Religious Organizations</p>
  
  <p>Under Title VII, religious organizations are permitted to give
  employment preference to members of their own religion.[42] The
  exception applies only to those institutions whose “purpose and
  character are primarily religious.”[43] That determination is to be
  based on “[a]ll significant religious and secular
  characteristics.”[44] Although no one factor is dispositive,
  significant factors to consider that would indicate whether an entity
  is religious include:</p>
  
  <ul>
  <li>Do its articles of incorporation state a religious purpose?</li>
  <li>Are its day-to-day operations religious (e.g., are the services the
  entity performs, the product it produces, or the educational
  curriculum it provides directed toward propagation of the religion)?</li>
  <li>Is it not-for-profit?</li>
  <li>Is it affiliated with or supported by a church or other religious
  organization? [45]</li>
  </ul>
  
  <p>This exception is not limited to religious activities of the
  organization.[46] However, it only allows religious organizations to
  prefer to employ individuals who share their religion.[47] The
  exception does not allow religious organizations otherwise to
  discriminate in employment on protected bases other than religion,
  such as race, color, national origin, sex, age, or disability.[48]
  Thus, a religious organization is not permitted to engage in racially
  discriminatory hiring by asserting that a tenet of its religious
  beliefs is not associating with people of other races.  Similarly, a
  religious organization is not permitted to deny fringe benefits to
  married women but not to married men by asserting a religiously based
  view that only men can be the head of a household. </p>
  
  <h3>EXAMPLE 7</h3>
  
  <h3>Sex Discrimination Not Excused</h3>
  
  <p>Justina works at Tots Day Care Center.  Tots is run by a religious
  organization that believes that, while women may work outside of the
  home if they are single or have their husband’s permission, men should
  be the heads of their households and the primary providers for their
  families.  Believing that men shoulder a greater financial
  responsibility than women, the organization pays female teachers less
  than male teachers.  The organization’s practice of unequal pay based
  on sex constitutes unlawful discrimination.[49]</p></li>
  <li><p>Ministerial Exception</p>
  
  <p>Courts have held, based on First Amendment constitutional
  considerations, that clergy members cannot bring claims under the
  federal employment discrimination laws, including Title VII, the Age
  Discrimination in Employment Act, the Equal Pay Act, and the Americans
  with Disabilities Act, because “[t]he relationship between an
  organized church and its ministers is its lifeblood.”[50] This
  “ministerial exception” comes not from the text of the statutes, but
  from the First Amendment principle that governmental regulation of
  church administration, including the appointment of clergy, impedes
  the free exercise of religion and constitutes impermissible government
  entanglement with church authority.[51] Thus, courts will not
  ordinarily consider whether a church’s employment decision concerning
  one of its ministers was based on discriminatory grounds, although
  some courts have allowed ministers to bring sexual harassment
  claims.[52]</p>
  
  <p>The ministerial exception applies only to those employees who perform
  essentially religious functions, namely those whose primary duties
  consist of engaging in church governance, supervising a religious
  order, or conducting religious ritual, worship, or instruction.[53]
  The exception is not limited to ordained clergy,[54] and has been
  applied by courts to others involved in clergy-like roles who conduct
  services or provide pastoral counseling.  However, the exception does
  not necessarily apply to everyone with a title typically conferred
  upon clergy (e.g., minister).[55] In short, in each case it is
  necessary to make a factual determination of whether the function of
  the position is one to which the exception applies.</p></li>
  </ol>
</blockquote>

<p>The relevant footnotes:</p>

<blockquote>
  <p>[42] Section 702(a) of Title VII, 42 U.S.C. § 2000e-1(a), provides:</p>
  
  <blockquote>
    <p>This subchapter 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.</p>
  </blockquote>
  
  <p>Section 703(e)(2) of Title VII, 42 U.S.C. § 2000e-2(e)(2) provides:</p>
  
  <blockquote>
    <p>it shall not be an unlawful employment practice for a school, college,
    university, or 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.</p>
  </blockquote>
  
  <p>While Congress did not include a definition of the § 702(a) term
  “religious corporation” in Title VII, at least one judge has argued
  that the legislative history indicates that Congress intended “the §
  703(e)(2) exemption to require a lesser degree of association between
  an entity and a religious sect than what would be required under §
  702(a).”  See LeBoon v. Lancaster Jewish Cmty. Ctr., 503 F.3d 217, 237
  (3d Cir. 2007) (Rendell, J., dissenting).</p>
  
  <p>Executive Order 13279, Equal Protection of the Laws for Faith-Based
  and Community Organizations,  issued on December 12, 2002, provides
  that certain faith-based organizations that provide social programs
  can deliver those services and make hiring decisions on the basis of
  their religious beliefs even if they receive federal funding. See 67
  Fed. Reg. 77,141 (12/16/02).  The Guidance to Faith-Based and
  Community Organizations on Partnering with the Federal Government,
  <a href="http://www.whitehouse.gov/government/fbci/guidance_document_01-06.pdf" rel="nofollow noreferrer">http://www.whitehouse.gov/government/fbci/guidance_document_01-06.pdf</a>
  (last visited July 2, 2008), issued by the White House Office of Faith
  Based and Community Initiatives, explains that while religious
  organizations that receive federal funds to provide social services
  may choose to hire persons of the same religion, they are also subject
  to federal, state, and local employment and anti-discrimination laws,
  such as Title VII.</p>
  
  <p>[43] Townley, 859 F.2d at 618; accord Hall v. Baptist Mem. Health Care
  Corp., 215 F.3d 618, 624-25 (6th Cir. 2000) (college of health
  sciences qualified as a religious institution under Title VII because
  it was an affiliated institution of a church-affiliated hospital, had
  direct relationship with the Baptist church, and the college
  atmosphere was permeated with religious overtones).</p>
  
  <p>[44] Townley, 859 F.2d at 618; see also Killinger v. Samford Univ.,
  113 F.3d 196 (11th Cir. 1997) (Baptist university was “religious
  educational institution” where largest single source of funding was
  state Baptist Convention, all university trustees were Baptists,
  university reported financially to Convention and to Baptist State
  Board of Missions, university was member of Association of Baptist
  Colleges and Schools, university charter designated its chief purpose
  as “the promotion of the Christian Religion throughout the world by
  maintaining and operating institutions dedicated to the development of
  Christian character in high scholastic standing,” and both Internal
  Revenue Service (IRS) and Department of Education recognized
  university as religious educational institution).</p>
  
  <p>[45] Townley, 859 F.2d at 619 (manufacturer of mining equipment, whose
  owners asserted that they made a covenant with God that their business
  “would be a Christian, faith‑operated business,” is not a religious
  organization because it is for profit; it produces mining equipment, a
  secular product; it is not affiliated with or supported by a church;
  and its articles of incorporation do not mention any religious
  purpose). Cf. EEOC v. Kamehameha Sch./Bishop Estate, 990 F.2d 458, 461
  (9th Cir. 1993) (non-profit school not “religious” for Title VII
  purposes where ownership and affiliation, purpose, faculty, student
  body, student activities, and curriculum of the schools are either
  essentially secular, or neutral as far as religion is concerned).</p>
  
  <p>[46] See Corp. of the Presiding Bishop of the Church of Jesus Christ
  of Latter-Day Saints v. Amos, 483 U.S. 327 (1987) (a nonprofit
  church-run business does not violate Title VII if it refuses to hire
  anyone other than members of its own religion, even for enterprises or
  jobs that are not religious in nature).</p>
  
  <p>[47] Killinger, 113 F.3d at 200 (School of Divinity need not employ
  professor who did not adhere to the theology advanced by its
  leadership); Tirpanlis v. Unification Theological Seminary, 2001 WL
  64739 (S.D.N.Y. Jan. 24, 2001) (seminary operated by Unification
  Church cannot be sued for religious discrimination by Greek Orthodox
  employee who was allegedly terminated for refusing to accept the
  teachings of the Unification Church).</p>
  
  <p>[48] Ziv v. Valley Beth Shalom, 156 F.3d 1242 (Table), 1998 WL 482832
  (9th Cir. Aug. 11, 1998) (unpublished) (religious organization can be
  held liable for retaliation and national origin discrimination);
  DeMarco v. Holy Cross High Sch., 4 F.3d 166 (2d Cir. 1993) (religious
  institutions may not engage in age discrimination). </p>
  
  <p>[49] EEOC v. Fremont Christian Sch., 781 F.2d 1362 (9th Cir. 1986)
  (religious school violated Title VII and the Equal Pay Act when it
  provided “head of household” health insurance benefits only to single
  persons and married men).</p>
  
  <p>[50] McClure v. Salvation Army, 460 F.2d 553, 558-60 (5th Cir. 1972);
  see also Hollins v. Methodist Healthcare, Inc., 474 F.3d 223 (6th Cir.
  2007) (applying ministerial exception to bar claim by resident in
  hospital’s pastoral care program who alleged disability
  discrimination); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036
  (7th Cir. 2006) (applying ministerial exception to bar age
  discrimination claim brought by Catholic Diocese music director who
  was terminated following a dispute with the bishop’s assistant
  regarding what to play during the Easter Mass);  Hankins v. Lyght, 441
  F.3d 96 (2d Cir. 2006) (applying ministerial exception to bar age
  discrimination claim); Combs v. Central Texas Annual Conf. of United
  Methodist Church, 173 F.3d 343 (5th Cir. 1999) (barring claim because
  court could not determine whether an employment decision concerning a
  minister was based on legitimate or illegitimate grounds without
  entering the constitutionally impermissible realm of internal church
  management); EEOC v. Catholic Univ. of America, 83 F.3d 455 (D.C. Cir.
  1996) (ministerial exception barred Title VII sex discrimination claim
  brought by tenured member of Catholic University’s department of
  religious canon law); DeMarco v. Holy Cross High School, 4 F.3d 166
  (2d Cir. 1993) (ministerial exception inapplicable to parochial school
  teacher’s age discrimination claim because employer’s contention that
  teacher was terminated specifically for failing to attend Mass and to
  lead his students in prayers could be evaluated without risk of
  excessive entanglement between government and religious institution);
  Guianan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d
  849 (S.D. Ind. 1998) (ministerial exception inapplicable to parochial
  school teacher’s age discrimination claim, even though teacher taught
  at least one class in religion per term, and organized one worship
  service per month, since vast majority of teacher’s duties involved
  teaching math, science, and other secular courses).</p>
  
  <p>[51] Rayburn v. Gen. Conference of Seventh‑Day Adventists, 772 F.2d
  1164, 1169 (4th Cir. 1985).</p>
  
  <p>[52] Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008) (Title VII race
  discrimination claim by African-American Catholic priest challenging
  denial of promotion and subsequent termination was barred by the
  ministerial exception); Petruska v. Gannon Univ., 462 F.3d 294 (3d
  Cir. 2006) (ministerial exception bars Title VII sex discrimination
  claim by female Catholic chaplain against school, alleging that she
  was forced out as chaplain after she advocated on behalf of alleged
  victims of sexual harassment and spoke out against the school’s
  president regarding alleged sexual harassment and discrimination
  against female employees); Werft v. Desert Southwest Annual Conf. of
  the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004)
  (ministerial exception barred minister’s claim against church for
  failure to accommodate his disabilities).  However, some courts have
  ruled that the ministerial exception does not bar harassment claims by
  ministers, but rather only applies to claims involving matters such as
  hiring, promotion, and termination.  See Elvig v. Calvin Presbyterian
  Church, 375 F.3d 951 (9th Cir. 2004) (ministerial exception does not
  bar sexual harassment claim by minister), reh’g denied, 397 F.3d 790
  (9th Cir. 2005) (two concurring and three dissenting opinions);
  Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940
  (9th Cir. 1999) (novice’s sexual harassment claim could be maintained
  without excessive entanglement between church and state because
  religious order did not offer a religious justification for the
  alleged harassment, and plaintiff did not seek reinstatement or other
  equitable relief); Dolquist v. Heartland Presbytery, 342 F. Supp. 2d
  996 (D. Kan. 2004) (First Amendment Establishment and Free Exercise
  Clauses did not preclude minister from pursuing Title VII sexual
  harassment claim against her church, because claims did not involve
  choice of clergy); see also Bryce v. Episcopal Church in the Diocese
  of Colorado, 289 F.3d 648, 657-59 (10th Cir. 2002) (although
  “employment decisions may be subject to Title VII scrutiny, where the
  decision does not involve the church’s spiritual functions,”
  minister’s Title VII harassment claim was subject to dismissal because
  it was based on communications protected by the First Amendment under
  the “church autonomy” doctrine; the doctrine is broader than the
  ministerial exception and bars civil court review of internal church
  disputes involving matters of doctrine and church governance).</p>
  
  <p>[53] Geary v. Visitation of Blessed Virgin Mary Parish Sch., 7 F.3d
  324 (3d Cir. 1993) (lay teacher at church‑operated elementary school
  not a minister); Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th
  Cir. 1990) (lay teachers of private religious schools who “perform no
  sacerdotal functions [nor] serve as church governors [and] belong to
  no clearly delineated religious order” are not ministers despite their
  sincere belief that theirs is a ministry); but see EEOC v. Catholic
  Univ. of America, 83 F.3d 455 (D.C. Cir. 1996) (ministerial exception
  barred Title VII sex discrimination claim brought by tenured member of
  Catholic university’s department of religious canon law).</p>
  
  <p>[54] Alicea‑Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th
  Cir. 2003) (ministerial exception applied to Communications Director
  who was responsible for crafting the Church’s message to the Hispanic
  community); EEOC v. Roman Catholic Diocese of Raleigh,213 F.3d 795
  (4th Cir. 2000) (ministerial exception applies to cathedral’s director
  of music ministry and part-time music teacher); Rayburn, 772 F.2d at
  1168 (ministerial exception applies to associate pastor who had
  completed seminary training but was not ordained); Starkman v. Evans,
  198 F.3d 173 (5th Cir. 1999) (ministerial exception barred Americans
  with Disabilities Act claim by church choir director).</p>
  
  <p>[55] EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277,
  283 (5th Cir. 1981) (“[w]hile religious organizations may designate
  persons as ministers for their religious purposes free from any
  governmental interference, bestowal of such a designation does not
  control their extra‑religious legal status”).</p>
</blockquote>

<p>This exemption has a constitutional dimension under the First Amendment free exercise clause so this rule cannot be changed, even by statute.</p>

<p>In the case of the atheist priest, I would argue that an atheist cannot actually do a priest's job. For example, I doubt that a Christian marriage would be valid if the priest was an atheist. It's like a steak house discriminating against a vegan chef who refuses to touch or cook any meat. That vegan chef just can't do the job in a steak house. </p>

<p>You might consider some other cases: Can a church owned hospital refuse to hire an atheist doctor? (Since being atheist makes you unable to be a priest in my opinion, but you can be a perfectly fine doctor). Or can a religious school refuse to hire an atheist religious educator? Or an atheist cleaner? </p>
