Religious Freedom, Gender Discrimination, and Pregnancy

In the United States, we enjoy (and sometimes take for granted) many legal protections, some of which come from the Constitution, such as freedom of speech and religion, and some come from statutes, such as the Civil Rights Act.

Most of us regard these protections as extremely important. However, what happens when they come into direct conflict?

This sometimes happens when a person working for a religious organization is fired because they engaged in some conduct which the organization disapproves of, based on its religious beliefs.

Recently, a Christian school in Florida fired (also discussed here and here) a teacher for getting pregnant out of wedlock, because of a pregnancy which she admits was conceived only 3 weeks before she got married. She is currently suing for gender discrimination.

Under U.S. law, it is illegal for employers with more than 15 workers to discriminate against employees based on pregnancy. It used to be quite common for female employees to be fired simply for getting pregnant, because the employer thought that it would hurt their image (especially if the mother is unwed) or because they think that the employee’s productivity will drop, when they’re distracted by pesky things like childbirth and the responsibility for raising another human being.

Now, there is no doubt that, under ordinary circumstances, the firing of this employee would violate the law. However, what about the constitutional rights of the religious school? The First Amendment to the U.S. Constitution provides for the free exercise of religion. And this right applies just as strongly to private religious schools as it does to anyone else (obviously, when it comes to religion in public schools, the Establishment Clause becomes an issue).

I may not agree with this school’s religious beliefs – I certainly don’t think that there’s anything inherently wrong with getting pregnant out of wedlock. There are plenty of excellent single parents, and unmarried couples who do a great job at raising their children.

However, I also don’t want the government interfering with anybody’s right to believe whatever they wish. Private parties who want to establish a private religious school should be able to do so, and they should be free to implement rules consistent with their religious beliefs, as long as they don’t force them on anyone. If I don’t like their particular views, I’m free to refrain from associating with them.

Courts have had to work very hard to strike a balance between the constitutional rights of religious organizations, and the rights of employees to be free of unlawful discrimination. Generally, if a person’s position at a religious organization involves religious duties (a priest, for example), the organization is exempt from most discrimination laws, if the discrimination is required by their religion. For example, the Catholic Church in the U.S. cannot be forced to hire female priests.

However, if the position in question involves essentially secular duties, all employment discrimination laws apply. So, a Christian organization cannot fire their janitor because he or she is not Christian, without violating laws against religious discrimination.

So, is a teacher at a religious school a religious or secular function? Well, there in lies the rub. The teacher, of course, has to convince the court that her job is essentially secular. But the school could easily argue that the teachers, who have the most contact with the students on a daily basis, are on the “front lines” of instilling the students with the values the school professes (which is presumably what their parents are paying for, in addition to an education).

On the other hand, if the teacher teaches secular classes like math or English, she has a good argument that her religious views and values are largely irrelevant to her job performance as a teacher. Obviously, whether or not she prevails in this action will, at least in part, depend on what class she teaches. It will also depend on the extent to which the school actually advances its religious values in the classroom. There are, after all, many religious schools that accept children from other faiths, and with the possible exception of a few classes, don’t really inject their religion into the classroom. There are, of course, other religious schools where religion permeates every class.

Again, the arguments of the teacher and the school will depend heavily on this factual question.

Nobody can seriously argue that the people who run a private school are free to teach whatever religious values they want. However, one blogger suggests that the school’s stated reasons for firing the teacher might have been a pretext, to get out of giving her paid maternity leave. If this is really the case, and the school’s religious objections to premarital sex are just a smokescreen, the school will not be able to fall back on the constitution as a defense.

When the best argument you have to fall back on is that you fired a woman for having sex 3 weeks before she got married, knowing full well that this is a violation of state and federal employment laws, and that your only chance of success is a plausible (but by no means slam-dunk) constitutional argument, you’ve made some serious mistakes.

Whatever the school’s reasons for firing this teacher, it didn’t go about it in a way that that makes them appear to have considered the legal ramifications of their actions. While they may well prevail in a lawsuit for employment discrimination, they could have significantly increased their chances by following a few basic procedures, such as explicitly stating in their handbook that premarital sex is not in line with their religious values. Further, they should have come up with a system (perhaps using separate HR managers) that would clearly differentiate between religious and secular employees.

If they made it explicit that teachers are expected to bring the school’s religious values into their lessons whenever possible, they would have a much better case that the teacher performed a religious function, and could therefore be fired for conduct not in line with the school’s values, with a much smaller chance of running afoul of anti-discrimination law.