Church and parachurch employers, especially church schools, struggle with whether federal discrimination statutes govern their employment decisions. The First Amendment’s clear language, “shall make no law respecting an establishment of religion,” is constantly in doubt by some jurists. To them, sweeping freedom cannot possibly be the intent of the draftsman.
In Billard v Charlotte Catholic High School, Order (WD NC, 2021), the Plaintiff started out as a full-time drama teacher and performed as such for over ten years. During that time the Plaintiff’s heterosexual marriage to a woman ended in divorce. During that same time, the Plaintiff began a relationship with a male. The Plaintiff retired from full time teaching but continued as a substitute teacher for two years. The Plaintiff was not required to sign an employment contract as a substitute teacher. During that period, the Plaintiff announced on Facebook engagement to a male. Thereafter, Plaintiff was not recalled to substitute. Upon inquiring about why no further substitute teaching assignments were forthcoming, Plaintiff was told by an Assistant Principal that Plaintiff could no longer act as a substitute teacher because of the Facebook announcement of same sex engagement. The federal trial court granted summary judgment to Plaintiff on a Title VII discrimination claim. Because Plaintiff was a teacher of a secular subject, because the school did not require religious training or duties of such teachers, and because the school did not require the teachers to ascribe to any particular denomination, the federal trial court held the Ministerial Exception did not apply. The federal trial court held “as of now, religious employers have strong legal protections for hiring and firing employees who have a role in promoting their religion’s message if the employment decision is religiously motivated.” The Plaintiff, however, had no such duties and the church school was not shielded from Title VII duties or liabilities.
Church schools that intend for their employees to comply with church doctrine should require it in employment contracts. Those contracts should contain morals clauses. Those same rules should appear in employee handbooks. Both should be drafted by lawyer. The employee should sign a receipt for the handbook. The absence of both the handbook and the contract in the reported case probably contributed to the outcome. Another problem arises when a church school cannot make up its mind about whether it is, or is not, denominational, non-denominational, or secular. In the reported case, the secular subject teachers may have been separated from religious instruction or observance, which seems anachronistic in a church school.