QUESTION: A much-beloved pastor of a local church is being forced to retire because he will turn 75 soon. Isn't this age discrimination?
ANSWER: While forced retirement might be discriminatory in some employment settings, age bias likely doesn't come into play here because the pastor is a religious employee in a religious institution, said the U.S. Equal Employment Opportunity Commission, which enforces anti-discrimination statutes in the workplace.
Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Equal Pay Act and the Americans with Disabilities Act, said Elizabeth Grossman, acting district director for the EEOC's New York district office in Manhattan.
"This ministerial exception comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority," she said. "The exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order or conducting religious ritual, worship or instruction."
Even under Title VII, which bans discrimination on such things as religion, race, national origin and sex, religious organizations can legally give employment preference to members of their own faith, Grossman said.
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But again, "the exception applies only to those institutions whose purpose and character are primarily religious," she said. The law permits "religious organizations to prefer to employ individuals who share their religion."
She stressed, however, that "the exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age or disability."
Factors that would indicate whether an entity is religious include: whether its articles of incorporation state a religious purpose, Grossman said; whether the entity's day-to-day operations are religious (e.g., are the services the entity performs, the product it produces or the educational curriculum it provides directed toward propagation of the religion?); whether it is not-for-profit; and whether it is affiliated with, or supported by, a church or other religious organization.
Religious institution or not, when it comes to harassment, anti-discrimination laws may apply.
"Some courts have made an exception for harassment claims where they concluded that analysis of the case would not implicate these constitutional constraints," Grossman said.
