In employment cases arising from religious schools, it often seems reasonable to ask if any background inquiry was made on prospective hiring candidates, especially teaching candidates?  At a religious school, unlike a private commercial employer, hiring without knowing whether the past conduct of a new hire has been consistent with the religious school’s moral imperatives would seem counterproductive.

In Richardson v Northwest Christian University, Slip Op. (D. Oregon, Eugene Div., 2017), the federal trial court wrote a very interesting opinion concluding on the record before it that the church school fired a teacher based on “marital status discrimination” and allowed a disparate treatment / pretext basis for a sex / pregnancy discrimination claim.  The teacher it was learned by the school was cohabitating with the other parent of an unborn child but the couple was not married.  The school gave the teacher the choice to marry, or stop cohabitating, or be terminated.  The teacher more or less rejected the first two choices and was terminated.

However, the court held that the case outcome was not determined by the ministerial exception or the ecclesiastical exception doctrine.  Based on the record before the court, while the religious school’s employment manual seemed to refer generally to religious principles, the manual did not appear to spell them out (at least not sufficiently for a court in the federal 9th Circuit).  That may explain the court’s conclusion.  The teacher in question was an instructor of “exercise science.”  The court found the teacher’s duties did not include “teaching scripture or praying with students.”

Prior to knowledge of the living arrangement or expected child, the school thought the teacher was unmarried.  But, the school knew the teacher had two children.  The school did not, insofar as it would seem from the court opinion, inquire as to whether the teacher was married or divorced.  The lesson might be that while the inquiry might not have been made directly to the teacher at the application stage, a competent pre-hiring background investigation conducted under the appropriate written release would likely have revealed either a marriage or divorce, or both.  Demanding personal references from others inside the religion of the church school regarding good moral character might provide notice of a variant life style.  A religious school that can abide divorce, or children without marriage, may have a hard time at a later date trying to enforce its moral position as a religious school as to cohabitation of unmarried persons.  (Even many churches have decided to tolerate divorce even in leadership because of its prevalence, so tolerating cohabitation may not be as big a leap as some would think.)

Also, a religious school that does not explicitly require, through employee manuals and contracts, its teachers to participate in religious education, prayer, or other on campus worship leadership may have created what an Oregonian court might consider a secular position inside the religious school.

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