Freedom to Take Account of Religion in Making Staffing Decisions

To many faith-based organizations, it is vitally important that they not lose their freedom to take account of religion in making staffing decisions, even if the organization receives government funds.  For how can they maintain their faith-shaped mission and the religious character of the organization if they have to hire people who aren’t committed to the same beliefs?   But critics of religious staffing call this “government-funded job discrimination” and insist that it must be illegal and unconstitutional.  At the very least, the issue of religious staffing has been probably the most contentious, and most confused, part of the faith-based initiative.  

So what’s the real story?  Here is a summary.  It is not legal advice.  If your organization is faced with a federal, state, or local restriction on religious hiring, then you’ll need to consult a lawyer experienced in employment law and also knowledgeable about the standards of the faith-based initiative.  

The basic federal rule about religious staffing (Title VII of the 1964 Civil Rights Act, as amended) is this:  faith-based organizations are free to hire on a religious basis, although they are prohibited from discriminating on the bases of race, sex, national origin, etc., in making employment decisions.  The human rights codes or laws of states and localities similarly typically include an exemption so that faith-based organizations can take account of religion.

Complications arise, though, when government money comes into the picture.  It isn’t that the religious staffing freedom simply disappears when government money comes in the door. Rather, the laws that govern government money sometimes—but not always—contain a requirement that all recipients agree not to discriminate on the basis of religion (along with many other criteria) in making their employment decisions.  

Some federal programs include such a ban on religious staffing, although most federal programs do not.  If there is such a ban (there is, for example, in the Head Start program), there may be a way to seek relief:  Congress provided, in the Religious Freedom Restoration Act (RFRA), that faith-based organizations are excused from such a restriction if complying with it would impose a substantial burden on their religious practice.  

So, if the restriction on religious staffing stems from the federal law governing a program, then, even if the agency applying the restriction is a state or local agency, the faith-based organization can appeal to RFRA to set aside the restriction.  For details, go here:  Appealing to RFRA against federal restrictions on religious staffing

Note that state and local officials, and federal officials, too, might not be familiar with this RFRA appeal process.  You might need to enlist the help of the White House Office of Faith-Based and Community Initiatives or of the Center for Faith-Based and Community Initiatives in the federal department where the money originated. 

A number of states and larger cities have their own ban on religious staffing.  Typically it applies across the board—to every organization, faith-based and secular—every time the government awards money for services, no matter what the social-service program is.  Such religious staffing bans applied by state or local procurement law or regulations in generally apply even if the money originally came from the federal government and even though the federal program law includes no such ban.  

However, if the federal funds are covered by the Charitable Choice provision (federal TANF, CSBG, SAMHSA drug treatment funds), then Charitable Choice’s protection of the religious mission and the governance of the faith-based organization preempts a state or local procurement restriction on religious staffing, so that the faith-based organization can continue its religious staffing practices, even if the state or local agency normally forbids grantees or contractors to “discriminate” on religious grounds in choosing staff.  Not every state or local agency may be aware of this Charitable Choice preemption, however.

Federal funds not covered by Charitable Choice are covered by new federal Equal Treatment regulations.  However, although these regulations also intend to protect the religious mission and governance of faith-based providers, they do not have the same strong preemptive effect.  If your organization is faced with a state or local ban on religious staffing if you accept federal (or state or local) funds from the agency, you might ask your lawyer to talk with officials to see if an exception can be made on religious freedom grounds.  Most likely, it will take action by the governor or the legislature (or a court decision) to create an exemption for faith-based organization from such general state and local bans on religious staffing.

Note that the protection of religious staffing, where it exists, is not a blanket release from other nondiscrimination obligations.  Consult with a knowledgeable lawyer about your organization’s policies and practices and about the requirements that accompany government funds that come from programs of interest to your organization.