The U.S. Equal Employment Opportunity Commission

1. SUBJECT. Policy Guidance: Religious Organizations that pay women less than men in accordance with religious beliefs.

2. PURPOSE. This policy guidance reflects the Commission's position on the issue of whether religious organizations and institutions may pay women less than men in accordance with their religious beliefs.

3. EFFECTIVE DATE. Upon receipt.

4. EXPIRATION DATE. As an exception to EEOC Order 205.001, Appendix B, Attachment 4, . (a)(5), this Notice will remain in effect until rescinded or superseded.

5. ORIGINATOR. Title VII/EPA Division; Office of Legal Counsel.

6. INSTRUCTIONS. File in . 605, Jurisdiction, after p. 605-37.

7. SUBJECT MATTER.

A religious organization or institution may not pay women less than men even if such a policy is pursuant to its religious beliefs. Religious institutions are covered by the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964, as amended (Title VII), in regard to sex discrimination in wages. They may not justify their refusal to comply with the Equal Pay Act or Title VII on constitutional grounds since the statutes neither infringe upon the organizations' free exercise of their religious beliefs nor violate the establishment clause of the first amendment.

THE FREE EXERCISE CLAUSE

The Free Exercise Clause prohibits legislation of religious beliefs. To determine whether a generally valid governmental regulation, such as the EPA and/or Title VII, violates the Free Exercise Clause of the Constitution, courts weigh three factors: (1) the magnitude of the statute's impact on the exercise of a religious belief; (2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief; and (3) the extent to which recognition of an exemption from the statute would impede objectives sought to be advanced by the statute. Wisconsin v. Yoder, 406 U.S. 205 (1972); Sherbert v. Verner, 374 U.S. 398 (1963). Application of Title VII and/or the EPA to religious discrimination has been found not to violate the Free Exercise Clause in numerous cases, including some which presented a direct conflict between sincerely held religious beliefs and the state interest in eliminating sex discrimination.

In EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272, 29 EPD 32,817 (9th Cir. 1982), the plaintiff, an employee of a religiously affiliated publishing house, alleged that she was denied monetary allowances paid to similarly situated male employees in violation of Title VII. The court held that the institution's free exercise of its religious beliefs was not violated by requiring that the institution pay similarly situated men and women equal wages. However, the clash between the state interest and religious beliefs was not present as to this aspect of the case, since "the Church proclaims that it does not believe in discriminating against women or minority groups and that its policy is to pay wages without discrimination...." Id. at 1279, 29 EPD at 25,808. EEOC v. Fremont Christian School, 781 F. 2d 1362, 39 EPD 35,872 (9th Cir. 1986), involved an employer policy of according health insurance only to married men and not to married women because of its religious belief that only men could be the head of household. There, too, the court held that the Free Exercise Clause did not preclude imposing Title VII and Equal Pay Act requirements on the school. It reasoned that there was no significant impact on the school's religious beliefs because the church did not believe in discriminating against women, and that the state has a compelling interest in eliminating discrimination. See also Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 36 EPD . 35,147 (1985) (requiring adherence to the Fair Labor Standard Act's minimum wage law does not interfere with a free exercise of religion even where employees protested the act's application; but facts show no direct conflict between the religious beliefs and the FLSA).

Nevertheless, the court in Pacific Press did discuss balancing the defendant's free exercise rights against the state's interest in Title VII, where the two do directly clash. Besides the claim of unequal wages, the employee there also brought a claim of retaliatory discharge. The employer asserted that the charge of discrimination brought by the complainant "violat[ed] . . . church doctrines which prohibit lawsuits by members against the church." Id. at 1280. As the court said, "[u]nlike the wage discrimination claim, there is a substantial impact on the exercise of religious beliefs because EEOC's jurisdiction to prosecute . . . will impose liability on Press for disciplinary actions based on religious doctrine." Id.

The court concluded, however, that "the government's compelling interest in assuring equal employment opportunities justifies this burden." Id. See also Tony and Susan Alamo, 471 U.S. at 309 (compelling government interest in enforcing minimum wage laws; failure to do so would have anti-competitive effect). The Commission believes that this result properly balances the interests at stake, and thus disagrees with the contrary result implied by the court of appeals for the Sixth Circuit in Dayton Christian Schools v. Ohio Civil Rights Commission, 766 F.2d 932, 37 EPD . 35,336 (6th Cir. 1985), rev'd on other grounds and vacated, 106 S.Ct. 2718, 40 EPD . 36,195 (1986).

In Dayton Christian Schools, the court of appeals held, inter alia, that Ohio could not constitutionally apply its state law against gender discrimination to a parochial school when the school discriminates pursuant to religious beliefs. Since the Ohio statute and Title VII are identical in providing no exemption for theologically based sex discrimination, it is likely that the Sixth Circuit would have reached the same result, had the suit been brought under Title VII.¹

The Commission concludes that there is no valid free exercise claim that permits employers to pay unequal wages based on sex in violation of Title VII and the Equal Pay Act. Both the Ninth and Sixth Circuits have applied the test we have discussed, differing only in their assessment of the impact that an exception in favor of religious groups would have on enforcement of sex discrimination laws.

As the Ninth Circuit said in Pacific Press, Congress has manifested an intent "to protect employees of religious employers. The effect of a broad religious-organization exemption would be to withdraw Title VII's protection from employees" of religious organizations. 676 F.2d at 1280. Thus, the impact of such an exemption for religious employers would be profound and widespread, contrary to the conclusion of the Sixth Circuit in Dayton Christian Schools that "[a]ccommodation of the religious beliefs in this case would not significantly interfere with the state's fulfillment of its goal of eradicating discrimination in employment." 766 F.2d at 955. As Judge Clark wrote for the Fifth Circuit in EEOC v. Mississippi College, 626 F.2d 477, 489 (5th Cir. 1980), cert. denied, 453 U.S. 912 (1981), "creating an exemption ... greater than that provided by . 702 would seriously undermine the means chosen by Congress to combat discrimination .... Although the number of religious educational institutions is minute in comparison to the number of employers subject to Title VII, their effect upon society at large is great ...."

The Commission also notes that Congress has manifested a strong desire not to allow religious organizations to be exempt from statutory prohibitions of sex discrimination.² In enacting § 702 of Title VII which allows religious organizations to discriminate on the basis of religion, Congress expressly rejected numerous proposed amendments that would exempt religious organizations from liability for theologically-based sex and other discrimination. See Pacific Press, 676 F.2d at 1276-77 (reviewing history of rejected proposals to broaden the religious exemption). It is, therefore, evident that Congress has determined that to broaden the exemption already provided, in fact, would seriously undermine one of the purposes of the statute: to end sex discrimination in employment.

A religious exemption to the EPA is not justified by the EPA's provision excepting from its coverage an employment practice based on "any other factor other than sex" (in this case religious beliefs). 29 U.S.C. § 206(d)(l)(iv). See EEOC v. Fremont Christian School, 781 F.2d 1362 (holding that the religiously based "head of household" policy, denying fringe benefits to married women, is not a factor other than sex).

Further, several district courts have held that application of the EPA to religious institutions does not violate the Free Exercise Clause, although those cases were not ones in which the employer asserted a sincerely-held belief that conflicted with enforcement of the EPA. Marshall v. Pacific Union Conference of Seventh-Day Adventists, 14 EPD . 7806 (C.D. Cal. 1977), held that application of the Equal Pay Act to lay persons employed at schools owned and operated by a religious institution is not an unconstitutional impingement on religious beliefs. See also Russell v. Belmont College, 31 EPD . 33,520 (M.D. Tenn. 1982) (church-controlled educational institution not exempt from EPA; the EPA provides only narrow exemptions from its remedial coverage, none of which fit the institution). It is therefore the policy of the Commission to enforce both the EPA and Title VII in appropriate cases of sex discrimination by religious organizations.

THE ESTABLISHMENT CLAUSE

Nor does the establishment clause of the First Amendment prohibit application of Title VII or the Equal Pay Act to religious institutions. To withstand scrutiny under the establishment clause, the statute: (1) must have a secular purpose; (2) must neither advance nor inhibit religion as its primary effect; and (3) must not foster excessive governmental entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-14 (1971). See also Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 653 (1980); Roemer v. Maryland Public Works Board, 426 U.S. 736, 748 (1976). There is no question that Title VII and the Equal Pay Act meet the first two parts of this test. First, they have a secular purpose, i.e., they require equal pay for equal work and an end to sex discrimination. Second, as discussed in Pacific Press, 676 F.2d at 1281-82, and Fremont Christian School, 781 F.2d at 1369-70, the Acts do not have the primary effect of advancing or inhibiting religion. The third part of the Lemon test is crucial: whether application of Title VII and the EPA create excessive governmental entanglement between the EEOC and the religious institution. To determine whether governmental entanglement is excessive we must examine the character and purposes of the institutions that are benefitted, the nature of the aid that the state provides, and the resulting relationship between the federal government and the religious institution. Lemon, 403 U.S. at 615.

The nature of the regulation's intrusion and the resulting relationship between the government and the religious institution are closely related. The potential for continuous supervision is the critical entanglement issue and Title VII's enforcement mechanisms will not result in ongoing scrutiny of the religious institution's operations. The court in Mississippi College stated that the relationship between the federal government and the religious institution that results from the application of Title VII is limited both in scope and effect. No relationship is created between the institution and government until and unless the organization violates or is alleged to have violated the act. Then the organization is subject only to limited investigation and de novo judicial determination. EEOC's relationship to religious employers threatens no more entanglement than other statutes which apply to religious institutions. Pacific Press, 676 F.2d at 1282, 29 EPD at 25,810; EEOC v. Mississippi College, 626 F.2d at 487-88, 24 EPD at 17,706; Russell v. Belmont College, 31 EPD at 29,423; Marshall, 14 EPD at 5958-59.

MINISTERIAL EXCEPTION

Courts have developed an exception to the above analysis where the employment relationship is between a church and its ministers. In the few cases addressing the issue, courts have concluded that because ministers are the "lifeblood" of the church, any state interference in the relationship would violate the religion clauses of the First Amendment. That proposition was first articulated by the Fifth Circuit in McClure v Salvation Army, 460 F.2d 553, 558, 4 EPD . 7719 (5th Cir 1972), cert. denied, 409 U.S. 896 (1972). It involved a female minister who alleged, among other things, that she was underpaid because of her sex. The court reasoned that:

[t]he minister is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the initial function of selecting a minister is a matter of church administration and government, so are the functions which accompany such a selection. It is unavoidably true that these include the determination of a minister's salary, his place of assignment, and the duty he is to perform in the furtherance of the religious mission of the church.

460 F.2d at 559.

The Fifth Circuit reaffirmed the distinction between ministers and lay persons in EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 26 EPD . 32,107 (5th Cir. 1981), cert. denied, 456 U.S. 905, 28 EPD . 32,548 (1982). The court there held that the seminary-defendant had to comply with EEOC filing requirements -- except for employees found to be ministers of the church. See also Marshall v. Pacific Union Conference, 14 EPD . 7806 at 5958 (C.D. Cal. 1977)(noting that government was not seeking to apply EPA to clergy, but only to lay employees of church). Cf. Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in North America, 344 U.S. 94, 116 (1952) ("freedom to select the clergy ... must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference").

The Fourth Circuit has held that this "ministerial exception" includes "clergy" who are not technically ministers but who function in that capacity. In Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1165, 38 EPD . 35,555 (4th Cir. 1985), cert. denied, 106 S. Ct. 3333, 40 EPD . 36,207 (1986), a white female alleged race and sex discrimination after she was denied a position on the pastoral staff as an "associate in pastoral care (a female who has received seminary training but has a different title from her male counterpart because in the Seventh-Day Adventist Church women may not stand for ordination)." The pastoral staff duties entailed teaching baptismal and Bible classes, pastoring the singles group, occasional preaching, and other evangelical, liturgical, and counseling responsibilities. An associate in pastoral care may also receive a "commissioned minister credential" or a "commissioned minister license," although she may never be ordained. The court found that because of her role in the church the charging party fell within the ministerial exception though she may never become an ordained minister in the church. It observed that:

The fact that an associate in pastoral care can never be an ordained minister in her church is likewise immaterial. The "ministerial exception" to Title VII first articulated in McClure v. Salvation Army, [citation omitted] does not depend upon the ordination but upon the function of the position, EEOC v. Southwestern Baptist Seminary. (citation omitted) "As a general rule, if the employee's primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered 'clergy.'" This approach necessarily requires a court to determine whether a position is important to the spiritual and pastoral mission of the church.³

Id. at 1168-69 (citations omitted). See also Assemany v. Archdiocese of Detroit, 49 FEP Cases 169 (Mich. Ct. App. 1989) (holding, under a state age discrimination statute, that a church musical director could be "clergy" for purposes of the exception).

The Commission will carefully examine the nature of the relationship between the individual and the church on a case by case basis to determine whether to apply the ministerial exception or whether the individual should be considered "clergy." For example, it questions the court's conclusion in Assemany.

CHARGE RESOLUTION

When a charge alleging sex discrimination in wages is filed against a religious institution, the charge can be analyzed under the EPA and/or Title VII. It should also be noted that Title VII covers types of wage discrimination not actionable under the EPA. Therefore, if an action cannot be brought under the EPA, it may nevertheless be a violation of Title VII. See EEOC Compliance Manual, Volume II, . 633, Wages.

Date: __2/1/90__                   Approved:    "s"         
                                   R. Gaull Silberman
                                   Vice Chairman

Footnotes

¹ In reversing, the Supreme Court did not reach the merits of the claim that the Constitution would be violated by applying the antidiscrimination law where the discrimination was based on religious beliefs. Thus, the Sixth Circuit decision still represents that court's thinking on the issue. Nevertheless, the Supreme Court's decision lends strong support to the Commission's position. It held that the state interest in eliminating sex discrimination was sufficiently important to bring the case within the principle that federal courts should abstain from enjoining state proceedings unless necessary to prevent irreparable injury and that the state agency's investigation violated no constitutional provision.

² The section-by-section analysis of H.R. 1746, the Equal Employment Opportunity Act of 1972, states that:

The limited exemption . . . for religious . . . associations . . . has been broadened to allow such entities to employ individuals of a particular religion in all their activities . . . . Such organizations remain subject to the provisions of Title VII with regard to race, color, sex or national origin.

³ The Rayburn court also noted that Title VII is an "interest of the highest order" which will often "overbalance legitimate claims to the free exercise of religion." Id. at 1169. Thus, Title VII will apply to decisions "such as those relating to a secular teacher in a church approved school," citing EEOC v. Mississippi College and EEOC v. Pacific Press Publishing Co.

This page was last modified on August 23, 2007.

Return to Home Page