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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.

Title VII: Religious Organizations/Hiring Co-religionists

November 14, 2006

Dear Sir or Madam:

We are in receipt of your undated letter [ ], requesting review of your draft policy providing a hiring preference for your co-religionists.

Although Title VII of the Civil Rights Act of 1964 prohibits covered employers from discriminating on the basis of religion in making employment decisions, including hiring, an exception allows religious organizations, including religious educational institutions, to prefer to employ members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” That determination must be based on “[a]ll significant religious and secular characteristics.” EEOC v. Townley Eng’g and Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988) (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); see also Hall v. Baptist Memorial 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); EEOC v. Kamehameha Schools/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). Although no one factor is dispositive, significant factors to consider that would indicate an entity is religious include:

  • Do its articles of incorporation state a religious purpose?
  • 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)?
  • Is it non-profit?
  • Is it affiliated with or supported by a church or other religious organization?

This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. See, e.g. 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). It does not allow religious organizations otherwise to discriminate in employment on protected bases other than religion, such as race, national origin, sex, age, or disability. For example, a religious organization is not permitted to have a policy of only paying health insurance premiums for employees who are co-religionists or to engage in race discrimination in hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.

There is no specific requirement in Title VII of the Civil Rights Act of 1964 that a religious organization have a written policy in order to prefer co-religionists for employment, although an employer is free to memorialize any of its policies in writing. Rather, the legal issue that typically arises in this type of case is whether the employer is in fact a “religious organization” permitted to exercise this preference.

This has been an informal discussion of the issues you raised and does not constitute an official opinion of the Equal Employment Opportunity Commission. Further, our silence on other statements or analyses that may have been presented in your letter should not be construed as agreement with those matters.

I hope this information is helpful.

Sincerely,

Dianna Johnston
Assistant Legal Counsel

This page was last modified on April 27, 2007.