Wednesday, May 17, 2023

Can an employer require that employees be of a specific faith? Believe it or not, it depends.

"Mature orthodox Christian faith as defined by the Apostles' Creed."

That is one of the qualifications listed in a job posting for a filmmaker position. The employer — the International Justice Mission — is a 501(c)(3) non-profit organization, the mission of which is to combat human trafficking and slavery, violence against women and children, and police abuse of power worldwide.

Can IJM make a certain religious faith a job qualification or otherwise ask about religion as part of the hiring process?

It depends on whether "religion" is a bona fide occupational qualification (BFOQ) for that employer.

Religion is one of three protected classes under Title VII (the others being sex and national origin) in which an employer can hire and employ employees on the basis of religion, as long it qualifies as a BFOQ reasonably necessary to the normal operation of that particular business or enterpriseAccording to the EEOC, "For employers that are not religious organizations and seek to rely on the BFOQ defense to justify a religious preference, the defense is a narrow one and rarely successfully invoked."

Which brings us back to IJM and its filmmaker job posting. The issue isn't the specific position, but instead whether one's religion — in this case, Christianity — is reasonably necessary to the normal operations of IJM. And it just might be. 

IJM is a Christian organization that only hires Christians. According to its website, IJM "is a team of … professionals inspired by God's call to love all people and to seek justice," whose "staff members are Christians from a variety of traditions who are inspired by God’s call to love all people and to seek justice for those who are oppressed," and who "find strength and encouragement in sharing a spiritual life together." 

Yet, IJM's work and services are non-denominational and non-discriminatory. IJM serves "all people, without regard to religion," its "services are never, under any circumstances, conditioned upon religious profession," and its programs never "include religious proselytization."

So is religion a BFOQ for IJM? I have no idea and I could make good faith argument both ways. It's a fascinating issue that I'll be sure to report back on if it's ever litigated. As for your business, because BFOQs are so narrowly construed, you better think carefully and check with your employment counsel before you make a specific religion (or sex, or national origin) a condition of employment.