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Karen Pence Teaching Gig Features LGBT, Religious Rights Debate

Jan. 24, 2019, 10:46 AM

Second lady Karen Pence’s work at a Christian school that won’t hire LGBT teachers highlights a growing legal debate over whether religious and other employers can take faith into account in job decisions.

Pence’s part-time job at Immanuel Christian School in Springfield, Va., came under a microscope after the Washington Post uncovered a copy of the school’s job application for teachers. The school requires job seekers to affirm that they won’t engage in same sex relationships, take on a transgender identity, or engage in sexual activity outside of heterosexual marriage.

Immanuel Christian isn’t the only school that imposes restrictions on teachers’ lives outside of the classroom. A federal judge in North Carolina in February will hear arguments in a lawsuit against a high school that fired a substitute teacher for marrying his boyfriend.

The North Carolina case and the new public scrutiny of Karen Pence’s job test the reach of a federal workplace discrimination law exemption for certain “ministerial” positions in religious organizations. They also raise unanswered questions about whether a separate shield allowing religious groups to give a preference to job seekers of the same faith allows them to fire workers who don’t abide by specific interpretations of the faith.

“There’s been a long history of special solicitude to religious organizations as teachers of the faith,” Josh Block, an American Civil Liberties Union attorney suing the North Carolina school, told Bloomberg Law. “But there have always been distinctions drawn based on your actual job duties and whether you’re hired to be a teacher of the faith. And the law doesn’t provide a religious organization an exemption from civil rights requirements outside of religion.”

Vice President Mike Pence told a Christian news outlet last week that criticism of his wife’s work at the school is “deeply offensive.” Pence in the Eternal Word Television Network interview called the uproar part of a larger “attack on Christian education” that “needs to stop.”

Meanwhile, Congress—and possibly the Supreme Court—are set to wade into a broad debate over anti-discrimination protections for LGBT workers. That’s certain to renew the push to expand religious liberty protections for religious organizations and private businesses.

‘Legitimating’ Question

Block and the ACLU are suing Charlotte Catholic High School for firing substitute teacher Lonnie Billard after he announced on Facebook that he was marrying his longtime boyfriend.

A Roman Catholic Diocese of Charlotte spokesman later said the school was forced to fire Billard because allowing him to continue to teach “would be legitimating that relationship.” Representatives for the school and the diocese, also named as a defendant in the lawsuit, declined Bloomberg Law’s request for comment.

Billard’s lawyers say the school isn’t shielded by a pair of exemptions to Title VII of the 1964 Civil Rights Act. The law specifically allows religious organizations to use a hiring preference for job seekers of the same faith. Courts have also ruled that religious groups can’t be sued for discrimination when it involves certain “ministerial” positions.

The Supreme Court in 2012 ruled that a Lutheran school teacher who said she was fired because of a medical condition couldn’t sue the school because her job was ministerial. Chief Justice John Roberts in a unanimous decision pointed out that the teacher was herself a minister and was classified by the school as a “called” faculty member, rather than a “lay” teacher.

“There is not a real bright line definition of ‘ministerial’ and the Supreme Court has cautioned that you should err on the side of being broad to avoid government entanglement with religion,” Christina Stoneburner, a lawyer who represents employers in discrimination cases, told Bloomberg Law. “That gets fuzzy in religious schools because there’s a certain amount of religion being taught all day long.”

A federal appeals court in California ruled last year that a fifth grade teacher at a Catholic elementary school in L.A. wasn’t covered by the ministerial exemption. A federal jury in Indiana in 2014 awarded $2 million to a Catholic school teacher fired for undergoing in vitro fertilization treatments.

Matter of Preference

Charlotte Catholic has largely focused its defense on a Title VII provision that allows religious organizations to give hiring preferences to job seekers who are members of the same religion.

The school’s “decision was based on their religious preference—specifically, the moral teachings of the Catholic Church, which recognizes marriage only between one man and one woman,” lawyers for Charlotte Catholic told the court.

The school has a significant legal tool in its arsenal in the form of the Religious Freedom Restoration Act. The law bans the government from placing a “substantial burden” on religious exercises unless it’s “the least restrictive means” to achieve “a compelling government interest.”

“At the core of constitutional liberty is the freedom of religious organizations to peacefully operate according to their beliefs without the threat of government punishment,” Greg Baylor, a lawyer for Alliance Defending Freedom, an advocacy group that’s not involved in the Charlotte case, told Bloomberg Law. “All religious institutions should be free employ those who share and live out their deeply held convictions.”

What’s not clear is whether those organizations can make hiring and firing decisions based on a worker’s adherence to specific religious teachings. That’s particularly complicated when it comes to alleged discrimination against protected groups—like pregnant women or racial minorities—in the name of religion.

The courts—and the Trump administration—are split over whether LGBT workers are a protected group. The Supreme Court is mulling whether to take up the question in a trio of cases.

The Equal Employment Opportunity Commission says sexual orientation and gender identity bias is a form of sex discrimination banned by Title VII. The Justice Department says Congress has to update the law if it wants to prohibit LGBT discrimination.

House Democrats are expected to soon push legislation to update the law to do just that. The move is likely to spur new jostling over religious protections.

To contact the reporter on this story: Chris Opfer in New York at copfer@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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