EEOC Informal Discussion Letter

The U.S. Equal Employment Opportunity Commission

EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Religious Organization/Religious BFOQ

March 8, 2004

Dear

This letter is in response to your request for an opinion letter from the EEOC stating that [business name] meets the statutory requirements necessary to be "able to hire people of like faith" as staff at a "medium security community oriented rehabilitation facility with a faith-based approach to the work ethic." You state in your letter that [business name] received such an opinion letter from the EEOC in 1987, but that the letter has been misplaced. We have not been able to locate a copy of the opinion letter which you say was sent to you in 1987. Therefore we base our response on the information which you provided to us in your most recent inquiry.

Although Title VII generally prohibits employers from using religion as a criteria for employment, it specifically permits "religious organizations" to prefer to employ members of their own religion. ⁽¹⁾ Thus, if [business name] is a "religious organization" within the meaning of Title VII, it may prefer to hire co-religionists in any position.

For the purposes of Title VII, a religious organization is one whose purpose and character are primarily religious, not primarily secular. Whether or not an organization falls within the exemption necessarily depends upon the particular characteristics of the organization. Significant factors in determining whether an institution's purpose and character are primarily religious or primarily secular include: whether its articles of incorporation state a religious purpose, whether its primary function is religious or secular, whether it is affiliated with or supported by a church, and whether it is for profit. E.E.O.C. v. Townley Engineering & Mfg. Co., 859 F.2d 610 (9^th Cir. 1988).

The Articles of Incorporation that you provided state that [business name] is a non-profit corporation whose purpose is to "operate, manage and maintain a private correctional facility" that will be "operated on Christian precepts" and will "conduct any and all legal activities to spread the gospel of Jesus Christ in said correctional facility." Absent a full investigation, we are unable to determine whether or not your organization falls within the "religious organization" exception. The religious purpose and non-profit status identified in your articles of incorporation weigh in favor of finding that [business name] is a religious organization. However, it does not appear that [business name] is affiliated with or supported by a church and it is not clear whether its primary function, which involves running a prison facility, is religious or secular.

In addition to providing an exemption for religious organizations, Title VII permits any employer to hire and employ employees on the basis of religion for certain positions if religion is "a bona fide occupational qualification" (BFOQ) reasonably necessary to the normal operation of that particular business or enterprise. ⁽²⁾ This exemption is very narrow and has not often been successfully invoked. However, in one case, a court found that having a Jesuit presence in a philosophy department of a university was a BFOQ where the university was founded by Jesuits, continued to have a Jesuit tradition, and required all of its undergraduates to take philosophy. ⁽³⁾ Conversely, another court concluded that a Department of Corrections failed to demonstrate that Protestant religious affiliation was a BFOQ for a position as a prison chaplain, because chaplains were recruited and hired on a facility-wide basis and were entrusted with the job of planning, directing, and maintaining a total religious program for all inmates, whatever their respective denominations. ⁽⁴⁾

Although your articles of incorporation state that the organization intends to incarcerate and rehabilitate prisoners and to operate the facility "on Christian precepts," it is unclear to what extent employees in different positions are responsible for carrying out that and related functions. It is unlikely that you could establish that religion is a BFOQ for every position in the facility, but you may be able to show that it is a BFOQ for some positions. However, absent a full investigation in the context of a charge, we are unable to make that determination.

We hope that this information is helpful to you. Please note, however, that this letter does not constitute an opinion or interpretation of the Commission within the meaning of § 713(b) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-12(b).

Sincerely,

- s -

Dianna B. Johnston

Assistant Legal Counsel

1. 2 U.S.C. § 2000e-1(a) provides that:

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.

2. 42 U.S.C. § 2000e-2(e)(1) provides that:

. . . it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of religion . . . in those certain instances where religion . . . is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.

3. Pime v. Loyola University of Chicago, 803 F.2d 351 (7^th Cir. 1986.)

4. Rasul v. District of Columbia, 680 F. Supp. 436 (D.D.C. 1988.)

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