Controversial Decisions: “With a Slightly Different Set of Facts”

How religious institutions can avoid sex discrimination related to sexual orientation

Can a religious organization fire an employee because his same-sex marriage violated the organization’s religious beliefs? A federal court in North Carolina determined that a Catholic school discriminated based on sex when it fired a male teacher for publicly announcing on Facebook that he was engaged to be married to his boyfriend. The court’s holding narrowed Title VII religious exemptions and expanded the definition of sex discrimination.

Billiard v. Charlotte Catholic High School

Billiard was a high school English and Drama teacher at a Catholic institution, who had been employed for 20 years. He was married to a woman, but around 2002, he came out as gay and they divorced. Although he was openly gay over the years and lived with a male teacher at the same school, some people he worked with still did not realize he was gay, although most at least suspected it. He retired as a full-time teacher in 2012 but continued as a substitute teacher. However, in October 2014, after Billiard announced on Facebook that he was finally going to marry his boyfriend, the school fired him because he publicly “announced his intention to marry a person of the same sex,” and therefore advocated against the beliefs of Catholic Church. In response, Billiard filed suit under Title VII of the Civil Rights Act, arguing he was discriminated against because of his sex.

The Court agreed with Billiard, though it did comment that, with a slightly different set of facts, it would have protected the school’s decision to fire him.

The Court stated that sex does not have to be the primary cause of the employer’s decision; it just needs to play a role in the reasoning behind the decision in order to create a Title VII claim.¹ The Court said that the school’s conduct was not wholly rooted in religious belief because the school would not have fired Billiard if he was female. If, for instance, he was a heterosexual woman posting on Facebook about her engagement to a man, the school would not have considered that statement “advocating” for or against the Catholic Church, nor would the school have fired her. Additionally, if Billiard was a heterosexual woman merely advocating for same-sex marriage on Facebook, the school admittedly would only ask her to “speak with a priest.” Thus, the Court’s ruling hinged on whether Billiard’s sex was a factor in its decision to fire him. An objection to the court’s ruling may be that the Court’s examples didn’t involve behavior the Church believed immoral. The problem was the Church had said that it fired Billiard for “advocating,” not for the relationship. This nuance was significant in the Court’s final decision.

The Court also opined that Billiard’s position at the school did not qualify as a minister and therefore, the “ministerial exception” did not apply. Although some prayer was involved at the beginning of class, it was not compulsory. Further, the Court stated that English and drama were purely secular subjects, and Billiard was not even required by the school to be a Christian to teach these subjects. Thus, the Court held that he was not responsible for religious education, was a secular teacher, and could not be terminated for violating Catholic doctrine.

Lessons from Charlotte Catholic High School

The Billiard decision highlights what religious organizations need to do to prevent a sex discrimination lawsuit when firing employees for concerns of morality. If an employer fires a secular employee for misconduct that would be permissible if the employee was of the opposite sex, it is likely that the employer violated federal law.

The religious employer must analyze its action and reasons prior to acting. Firing an employee because the employee is homosexual may well be considered sex discrimination. So too is firing a homosexual employee for engaging in activity that would otherwise not be a problem if the employee was heterosexual – such as public wedding announcements.

A helpful way to analyze the situation is to use the approach the Billiard court used. Every employer should ask itself: “If the employee I am firing was the opposite sex, would I still fire them for this same behavior?” If the answer to this is “No,” then the employer is discriminating based on sex. For secular employers this ends the inquiry, and they should not fire the employee. However, religious organizations are afforded different freedoms, and the inquiry continues. And having strong codes of conduct based on religious beliefs may help those religious organization’s position.

Religious employers must also analyze the employee’s job position and determine whether it is secular or religious. Does the job specifically require the employee be a believer in and an active member of a specific religious faith? Do the job duties require specialized religious training, religious advocacy, or prayer, or reflect a role in conveying the Church’s message and carrying out its mission? If these do not apply, it is likely that courts will view the job position as secular and weigh the employee’s civil rights heavily against the religious exemption. If these do apply, it is likely courts will view the employee as a “minister” of the religion and heavily favor a religious exemption.

An employer must also scrutinize its exact motivation for firing an employee for sexual misconduct, and determine whether the employee’s misconduct is rooted in religion. If, for instance, a religious school fires a gay math teacher because, “Math cannot be taught by a homosexual,” there is likely little protection afforded to the employer. On the other hand, if a religious school fires a homosexual preacher because, “The Word of God cannot be taught by someone engaged in forbidden sexual practices,” then the employer will likely be given much more protection. Something in between, like “Catholic school teachers must be mentors and cannot engage in lifestyles disallowed by the Church” could be a protection, but would be tested. In essence, unless there is a significant spiritual function of the job, First Amendment protections will not apply.

In the Billiard vs. Charlotte Catholic High School example, the court stated that “with a slightly different set of facts” it would have ruled in favor of religious exemptions. Perhaps if Billiard’s teaching position had more religious duties, or perhaps if the Catholic Church had fired him for immoral behavior rather than advocacy, the court may have ruled against him. It may have also been a factor that the Church apparently overlooked his de facto living arrangement until he officially got engaged. When dealing with Title VII and religious exemptions, it is hard to overstate the importance of both careful analysis and consistency.

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¹Other courts might not agree that Title VII was so narrowly drawn, and some jurisdictions are more in favor of religious liberties.

Featured Image by Rebecca Sidebotham.