EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

Title VII – Religious Organization Exception

December 28, 2007

Kevin Cummings
Branch Chief, Business and Trade Services
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Program and Regulations Development
111 Massachusetts Avenue, N.W., 3rd Floor
Washington, D.C. 20529

Dear Mr. Cummings:

The Equal Employment Opportunity Commission (Commission or EEOC) submits this letter in response to the Department of Homeland Security (DHS) semiannual regulatory agenda published December 10, 2007, regarding a final rule expected in February 2008 amending the U.S. Customs and Immigration Service's regulations relating to special immigrant and nonimmigrant “religious worker” visas (RIN 1615-AA16).

In order to avoid confusion between the DHS final rule and the laws enforced by the EEOC, we request that DHS make clear that the definition of an employer that qualifies as a “religious organization” under the DHS final rule does not apply under Title VII of the Civil Rights Act of 1964, as amended, which containsits own definition of an employer that qualifies as a religious organization permitted to prefer co-religionists.

Background

The EEOC enforces the federal laws that prohibit employment discrimination on the basis of an individual’s race, color, religion, sex, national origin, age, or disability. These include the laws prohibiting discrimination in federal employment. See Section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16; Section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a; the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d); and Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 (the “EEO laws”). The EEOC has responsibility under Executive Order 12067 to coordinate the federal government’s enforcement of laws, executive orders, regulations, and policies that require equal employment opportunity without regard to race, color, religion, sex, national origin, age, or disability. 43 Fed. Reg. 28967 (July 5, 1978).

Overview

Absent clarification that the DHS definitions are distinct from those under Title VII, some of the DHS changes to the suitability determination process may have the effect of creating confusion about the law for those employers covered by both the DHS rule and Title VII. The DHS regulation defines which employers will be considered “religious organizations” for purposes of immigration law. Title VII and its case law have a different approach to determining which employers will be considered religious organizations for purposes of employment discrimination. The potential for confusion is magnified because the DHS regulation provides a mechanism for investigating and determining which employers are “religious organizations” for purposes of sponsoring the immigration of religious workers, and this mechanism differs from the applicable evidentiary considerations for determining whether an employer is a religious organization under Title VII.

Definition of Employers Qualifying as Religious Organizations Under Title VII

Section 702 of Title VII, 42 U.S.C. § 2000e-1(a), provides that certain employers are religious organizations permitted to prefer co-religionists with respect to hiring and certain other employment decisions:

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.

In addition, Section 703(e)(2) of Title VII, 42 U.S.C. § 2000e-2(e)(2) provides:

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.

Under established case law, this Title VII exception applies only to those institutions whose “purpose and character are primarily religious.”⁽¹⁾ That determination is to be based on “[a]ll significant religious and secular characteristics.” ⁽²⁾ Although no one factor is dispositive, significant factors that courts have considered to determine whether an employer is a religious organization for purposes of Title VII include: whether the entity is not for profit, whether its day-to-day operations are 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?); whether the entity's articles of incorporation or other pertinent documents state a religious purpose; whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or other religious organization; whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees; whether the entity holds itself out to the public as secular or sectarian; whether the entity regularly includes prayer or other forms of worship in its activities; whether it includes religious instruction in its curriculum, to the extent it is an educational institution; and whether its membership is made up of coreligionists.

In applying these factors under Title VII to determine whether an employer is a religious organization, not all factors will be relevant in all cases, and the weight given each factor may vary from case to case.⁽³⁾ Many different types of evidence may be relevant to the EEOC or a court in determining whether an employer is a religious organization under Title VII; in particular, tax-exempt or non-profit status may in some cases be relevant, but in no instance would it be dispositive.

Definition of “Religious Organization” Under Proposed DHS Rule

By contrast, the proposed DHS rule regarding the religious worker visa program will define a “bona fide nonprofit religious organization in the United States” to mean an organization that, among other things, possesses a currently valid determination letter from the Internal Revenue Service (IRS) showing that it is a tax-exempt religious organization under 28 U.S.C. Section 501(c)(3). This definition, as well as the evidence required, is different from what might be required or relevant for an employer to establish that it is a religious organization under Title VII. Indeed, it would appear from a comparison of the definitions that there may well be employers who might qualify as religious organizations under Title VII but would not be considered bona fide “religious organizations” for purposes of the DHS religious worker rule. As the DHS Notice of Proposed Rulemaking points out, churches may not be required to obtain a section 501(c)(3) exemption for tax purposes, but such an exemption is required when requesting immigration benefits on behalf of a prospective worker. Further, the proposed rule’s requirements with respect to the definition of a “bona fide organization which is affiliated with” a religious organization present similar potential for different results than would be obtained under Title VII.

To avoid unnecessary confusion on the part of employers, employees, courts, or other interested parties, we suggest that the preamble to the final DHS religious worker rule, or the rule itself, be amended to contain a simple statement that the definition of a religious organization for purposes of this rule is distinct from, and does not apply to, the definition of a religious organization or educational institution under Title VII of the Civil Rights Act of 1964, as amended, which contains its own definitions.

We hope these comments will be helpful. Please feel free to contact Peggy Mastroianni, Associate Legal Counsel, at 202-663-4609 or Carol Miaskoff, Assistant Legal Counsel for Coordination, at 202-663-4645.

Footnotes

(1) EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 618 (9th Cir. 1988); 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).

(2) 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).

(3) LeBoon v. Lancaster Jewish Community Center, 503 F.3d 217 (3d Cir. 2007) (holding that a Jewish Community Center was a religious organization because while it lacked financial or administrative ties with a particular synagogue and many of its activities were cultural, rather than religious, its structure and purpose were primarily religious, its articles of incorporation stated that its mission was to enhance and promote Jewish life, identity, and continuity, it was non-profit, synagogue clergy played an advisory role in the center's management, and it hosted Jewish events and observed holy Jewish holidays); Townley, 859 F.2d at 619. Cf. 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).

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