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Lawyers' Committee for Civil Rights Under Law
1401 New York Avenue, NW
Suite 400
Washington, DC 20005

Tel: 202-662-8600
Fax: 202-783-0857

July 16, 2001

United States House of Representatives
W ashington, D.C. 20515

Dear Representative:

I am writing on behalf of the Lawyers' Committee for Civil Rights ("Lawyers' Committee") to address the issue of "Charitable Choice"which has been included in several important legislative initiatives in the 107th Congress. In particular, we are concerned about the "Charitable Choice" provisions that the House of Representatives will be considering this week as part of H.R. 7.

The Lawyers' Committee is a non-partisan, non-profit, national civil rights legal organization formed by leading members of the nation's bar in 1963 at the request of President Kennedy to address racial discrimination. As a civil rights legal organization concerned with discrimination in any form, we find legally troubling the so-called "Charitable Choice" provisions that have been made part of several pieces of important legislation this year.(1) These provisions are being added to various pieces of legislation and have the effect of providing federal funds to non- governmental organizations to carry out services and programs which are at the core of the legislation such as drug rehabilitation or job training. However, these provisions are problematic because they specifically allow, through federal legislation, discrimination in the employment of individuals involved in the delivery of those federal programs. Because of this unprecedented use of federal dollars to discriminate, the Lawyers' Committee thought it critical to identify some of the foremost concerns of civil rights advocates in these so-called "Charitable Choice" provisions.

Many questions have been raised about the civil rights implications of the so-called "Charitable Choice" provisions which are part of several significant pieces of legislation in the 107th Congress, which currently include the Elementary and Secondary Education Act Authorization Bill (2), the Faith-Based and Community Initiatives Bill (3), and the Drug Abuse Education, Prevention, and Treatment Act of 2001.(4) This language first came to the forefront in 1996, as part of the Welfare Reform Legislation, and later was also included in the Community Services Block Grant. These provisions are extremely problematic because they extend an exemption in Title VII thereby allowing religious organizations to discriminate in their hiring, firing and other employment decisions in federally funded positions. On their face it appears that these provisions contradict a fundamental principle of national public policy - that federal funds should never be used to discriminate in any manner.

Background

Title VII - Federal Law Governing Employment Discrimination

Under Title VII, which prohibits employment discrimination on the basis of race, religion, sex, color or national origin, religious organizations are exempt from the prohibition against discrimination in their employment practices based on religion.(5) That exemption has been extended by Congress to cover all employees in religious institutions including those performing a secular function and it has been upheld by the Supreme Court even where it applied to the "nonprofit activities of religious employers."(6) In essence, religious organizations are free to discriminate based on religion in the hiring of any individual whether they serve a religious or secular function in the organization and regardless of whether they participate solely in the religious functions of the organization or its secular ones. Religious organizations remain subject to the other prohibitions set forth in Title VII. However, subsequent case law has documented that courts have interpreted this exemption to cover not only religious affiliation or belief but also have extended it to discrimination on the basis of the teachings and tenets of the religion (see below). This trend in the federal courts has resulted in a blurring of the line between religious and other forms of discrimination. It raises a cause of concern among civil rights advocates since religious discrimination has the potential to become a pretext for other forms of discrimination explicitly prohibited by Title VII. However, the text of §702 of Title VII does not explicitly extend the exemption for religious organizations to publically funded jobs.(7) Discrimination in the use of federal funds is covered by Title VI.

Title VI - Prohibiting Discrimination in Federally Funded Activities

The language of these "Charitable Choice" provisions would extend the §702 exemption to programs receiving public funds, something that the federal courts have not done. On its face, it appears that the exemption was never intended to apply to the use of federal funds by private religious organizations and that this expansion contravenes the principle that federal funds should not be used to discriminate as established in Title VI of the 1964 Civil Rights Act. Title VI specifies that:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.(8)

Given the concerns raised by the broad interpretations of the Title VII exemption and the explicit prohibitory language of Title VI, there is a real concern about the reach of "Charitable Choice" provisions. Furthermore, unless there is specific language added that repeals the Title VII exemption for employees of religious organizations with respect to publicly funded positions, the legal foundation banning federally funded discrimination, set forth in Title VI, will be eroded.

These "Charitable Choice" provisions raise a number of concerns for the civil rights community which we have addressed below.

1. Charitable Choice Provisions Allow Religious Organizations to Discriminate Based on Religion, Extending Section 702 of Title VII to Programs and Specific Employment Positions That Are Created with Federal Dollars.

One of the more troubling components of this legislation is that it allows religious organizations providing the same kind of services or programs as a secular group the option to discriminate in all its employment decisions even where the religious organization's program receives the same type of federal funding that a secular organization receives. Secular organizations must abide by all elements of Title VII and are, therefore, forbidden from any type of employment discrimination. However, under these provisions the religious organization does not have the same restrictions because it is exempted from the prohibition on religious discrimination. Therefore, this law creates an uneven playing field depending on religious affiliation for those using federal dollars.

Another area of concern is that as these provisions are added to more and more legislation there will be an increased number of federal dollars going to religious organizations to provide services - unless there is a provision inserted to protect employees in these federally funded jobs - the result will be that more people and jobs will not have the full protections of the federal law from discrimination even though it is taxpayer dollars that created the job. The so-called "Charitable Choice" provisions promote expansion of religious employment with the federal government bearing the cost - something that Title VI never anticipated. As a result, these provisions end up enlarging the number of jobs nationwide where religious discrimination is possible and, in fact, sanctioned by the government.

2. Exemption May Override Existing Civil Rights Laws Because it Can Be Given Broad Interpretation to Encompass Beliefs and Conduct Consistent with Religion

The religious exemption has been interpreted broadly by the federal courts to allow religious organizations to discriminate based on their religious affiliation, beliefs, teachings and tenets. For example, pregnant women have been fired because their pregnancy was proof to the religious organization that they participated in private sexual conduct which was against the beliefs and conduct of the institution in which those women worked.(9) In these instances, when conduct is justified under the §702 exemption because of religious beliefs or tenets, the courts have declined to invoke Title VII¹s ban on pregnancy discrimination as a form of gender discrimination. This broad interpretation has been memorialized in the language included in some "Charitable Choice" provisions because they specifically incorporate the ability of religious organizations to discriminate based on their teachings and tenets.(10) This exemption offers a wide sweep. Religious institutions may be free to justify any form of disparate treatment based on a religious teaching and the courts, not wanting to decide the merits of a claimed religious teaching or tenet, will be reluctant to move beyond that justification to Title VII's prohibitions.(11) Because there are an infinite variety of potential religious beliefs, the sweep of the exemption in fact immunizes recipients of the exemptions from discrimination on another basis.

3. These "Charitable Choice" Provisions May Be Interpreted to Allow Federal Funds to Be Used to Discriminate Against Individuals Based on Race or Gender in the Name of Religion.

Since it will be constitutionally difficult for the government to distinguish between religious entities and their beliefs, there may be no way to prevent groups which practice racial hatred or who preach a subordinate role for women from receiving federal funds. Unfortunately, this reality increases the likelihood that religious teachings and beliefs that are discriminatory in nature can be justified under the exemption. Some religious organizations may believe in principles which can lead to discrimination but which will now be protected by these provisions and perhaps exempt these organizations from further investigation into whether religious employment discrimination is being used as a pretext for other types of employment discrimination. While this may be true only for the minority of religious institutions, we must examine whether, as a nation, Americans really want to allow even the possibility of racially or sexually discriminatory behavior to be sanctioned with the use of federal funds.

Litigation demonstrating this problem has already emerged. Several cases of sex and pregnancy discrimination were deemed acceptable because the employees violated religious principles and the courts did not investigate further to see if the articulated principles were actually a pretext for other types of discrimination. The courts, in fact, believed that they could not because the religious organizations had made an appropriate showing that the employment actions were reasonably related to the religious beliefs of the religious organization.(12) Further examples are not hard to imagine, especially where there is a religious organization that preaches racial separation as one of the tenets of its belief. We as a nation cannot allow such organizations to impose their own nonmajoritarian beliefs on publically funded employees.

It is not unreasonable to require religious organizations using public dollars to create jobs to abide by federal non-discrimination laws such as Title VII. These organizations are participating in public programs with services and employees that are in large part, if not completely, funded by U.S. taxpayer dollars. It will not unduly interfere with the practice of their religion for them to abide by the laws with which every other organization receiving these same federal funds or providing the same federally funded services has to comport. Currently, organizations which receive a government benefit such as a tax exemption must prove that they are not discriminating. But, in the case of "Charitable Choice," religious organizations are getting the benefit of public dollars without having to abide by the same principles nor do they have to provide the federal government with the same assurances.

One case that is often cited as an example of where a public benefit was being used by an organization that practiced racial discrimination in the name of religion is that of Bob Jones University v. United States.(13) There, a religious organization that had a racially discriminatory policy was receiving a public benefit until the Supreme Court found that it was not entitled to it because "[r]acially discriminatory educational institutions cannot be viewed as conferring a public benefit within the 'charitable' concept discussed earlier."(14) However, that same organization or another preaching similar ideas could, under these so-called "Charitable Choice" provisions, require that employees abide by the teachings and tenets of the religion and thus forbid interracial dating or marriage of employees or fire pregnant women for being adulterous or engaging in premarital sex and there would be no means of redress for the employee under Title VII. A viable religious defense is all that the organization needs to justify its discriminatory conduct. Certainly, it cannot be imagined that our Constitution would permit such a blatant use of federal funds to discriminate.

Conclusion

"Charitable Choice" provisions raise numerous concerns about the United States Congress sanctioning the use of federal funds by religious organizations to discriminate against individuals in employment decisions, especially where the federal funds are explicitly used to create the new jobs where discrimination can occur. The Lawyers' Committee raises these fundamental questions about the civil rights implications of "Charitable Choice" because we believe that federal dollars should never, under any circumstances, be used to discriminate. We are concerned about the religious discrimination that may exist in the federally funded programs as a result of "Charitable Choice," especially considering the courts' expansive definition of what can be deemed part of the exemption. We also raise concerns about the possibility of other types of discrimination occurring in the name of religion, for the necessary consequences of allowing a broad scale religious exemption cannot be the risk of some instances of racial and gender discrimination.

We raise these issues because of our interest in and commitment to preventing discrimination in any form, but we also raise it because of concerns about religious freedom for those applying for federally funded jobs from an organization of a different affiliation than their own. Faith-based organizations historically have provided services to many of the neediest in our society. When those organizations voluntarily seek federal funds, however, we must ensure that they abide by the same federal protections against discrimination which others seeking those funds must submit. We can and should preserve these strong federal protections and policies against discrimination and allow religious organizations to maintain their exemption when they operate their own privately funded operations. However, the Title VII exemption should not be and was never intended to extend to religious employers who voluntarily choose to operate a federally funded program.

The Lawyers' Committee thanks you for your attention to this critical civil rights issue and we urge you to oppose H.R. 7 if it continues to include the "Charitable Choice" provisions.

Sincerely,

Barbara R. Arnwine
Executive Director

footnotes

1. The proposed legislation contains at a minimum the following language: "[A] religious organization's exemption provided under section 702 of the Civil Rights Act on 1964 (42 U.S.C. §2000e-1a) regarding employment practices shall not be affected by its participation in, or receipt of funds from, programs described [herein]."(emphasis added).

2. No Child Left Behind Act of 2001, H.R. 1.

3. Community Solutions Act of 2001, H.R. 7.

4. Drug Abuse Education, Prevention, and Treatment Act of 2001, S. 304.

5. 42 U.S.C. §2000e-1(a)

6. Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 339 (1987)

7. 42 U.S.C. §2000e-1 reads "This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities."

8. 42 U.S.C. §2000d.

9. See, Ganzy v. Allen Christian School, 27 F. Supp 340 (E.D.N.Y. 1998), Vigars v. Valley Christian Center, 805 F. Supp. 802 (N.D. Cal. 1992).

10. The language noted includes "[a] religious organization that provides services under [insert program name] may require that its employees providing services under such a program adhere to the religious tenets and teachings of such organization, and such organization may require that those employees adhere to rules forbidding the use of drugs or alcohol."

11. See E.E.O.C. v. Mississippi College, 626 F.2d 477 (5th Cir. 1980).

12. See supra Footnote 9.

13. Bob Jones University v. United States, 461 U.S. 574 (1983).

14. Id. at 596.

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