Employee Screening for Ministries

As hiring practices continue to develop and change over time, lawmakers have kept pace through the creation and enforcement of federal and state hiring regulations. There are some exceptions for religious organizations, but the exceptions must be well-founded. This post will address the major federal and state laws that effect employee screening processes and then discuss exceptions and protections for religious organizations.

Federal and State Laws

While there are numerous statutes on the federal and state level that govern the hiring practices of employers, this post will review a few of the most important laws.

The Americans with Disabilities Act (ADA) restricts employers from rejecting qualified individuals during the hiring process on the basis of the disability in question. The ADA segments the hiring process into three different stages in order to best restrict the discrimination of disabled applicants. The first stage is labeled “pre-offer”; employers are not allowed to make inquiries about potential disabilities during this time. During the next stage of the process, “post-offer,” employers are permitted to make such inquiries, so long as they do so equally for all of their applicants. In the final stage, “employment,” disability-related inquiries are allowed so long as they are related to the job. However, if someone is turned down at any stage because of a disability, it could still be discrimination unless it is clear that they could not perform the job with or without reasonable accommodation.

The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating against prospective employees on the basis of genetic information, such as family medical history or data pertinent to genetic tests. While using said information to hire or reject applicants would definitely constitute a violation of GINA, merely requesting such information is also considered illegal. Since there is no religious exception to this Act, it is wisest just to avoid gathering this information at all.

The Title VII of the Civil Rights Act is most widely known for barring discrimination on the basis of protected characteristics, including, but not limited to, race, sex, or national origin. These prohibitions have clear implications for the hiring process, since rejecting applicants on the basis of any of these characteristics may constitute a violation of Title VII. In general, Title VII is a very broad statute that was intended to encompass many forms of discrimination, and recent debate has complicated the legal definitions for some of the characteristics.

The Fair Credit Reporting Act (FCRA) most commonly applies to the use of background checks and other forms of verification during the employment screening process. Employers are required to get the consent of their applicants before conducting background checks and similar checks using third parties. Additionally, the employer must notify the applicant that the information obtained through the checks could possibly be used for hiring.

The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against any individual seeking employment that is of the age of 40 or older. This act expands upon concepts that were not technically covered in Title VII of the Civil Rights Act, and also applies to pensions and benefits that the employer in question may make available to their employees.

In addition to the statutes that were previously summarized, there are many state and local laws restricting hiring practices as well. They generally use the same principles, but may be more stringent in some ways.

For example, the “ban the box” movement that eliminates the ability of employers to make inquiries about the criminal history of their applicants, at least during the initial stages of the process, has been adopted as law in many states. There is no federal version of this law, and many states have chosen to enforce different versions of the “ban the box” law. Some states require all employers to conform to this rule, while others choose to only enforce this requirement in the case of employers with a certain number of employees.

Exemptions for Religious Organizations

Certain exceptions for the various restrictions during the hiring process exist for religious organizations.

There are two explicit exceptions under Title VII. The first exemption states that Title VII will not apply to, among other entities, religious organizations that require their employees to carry out specific functions in the course of their duties that relate to the religious nature of the organization in question. The second exemption specifies that an institution may choose to hire applicants based on their participation in a certain religion if that institution is controlled or influenced by the same religion, or religious institution. In order to claim these exemptions, the religious organization must have defined clearly what the functions of the employee are what what would be considered the nature of the religious beliefs.

There are no specific exemptions for the ADA, for GINA, or for the FCRA. There may or may not be religious exemptions under state and local law.

But the ministerial exception, as established by the First Amendment, is an important exemption for religious organizations. The ministerial exception prohibits claims from being brought against religious organizations under any law based on the hiring and firing practices the organization uses when dealing with ministerial employees. Constitutionally, a ministry has almost absolute freedom to select its ministers. The Supreme Court has reasoned that the organization in question ought to know what qualities they are seeking out in their ideal ministerial employee, and should be able to select their employees based on these qualities. This would include moral behavior, character, or criminal convictions.

Under case law, a ministerial employee cannot claim protection under the ADA, ADEA, or Title VII. State and local laws purporting to control ministerial hires would almost certainly be unconstitutional. Litigation in this arena usually centers around whether a particular employee has a ministerial role, as that can be complex to analyze. In addition, there may be other forms of damages, including reputational, that might still allow litigation.

Conclusion

In sum, the law surrounding hiring practices for employers and the possible exemptions becomes more and more complex as court decisions and legislation continue to evolve in the United States, especially for religious organizations. Employers would do well to carefully scrutinize relevant statutes, and seek professional legal assistance if necessary, when developing hiring practices or making tough hiring decisions.

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Featured Image by Rebecca Sidebotham.