May a religious group that receives funds to administer a homeless shelter discriminate in hiring on the basis of religion or adherence to religious doctrines?
Yes. According to the White House, faith-based organizations that receive federal funds may discriminate in employment based on religion.
Charitable-choice provisions found in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWOR) contain no prohibitions against religious discrimination in employment by religious service providers. Though the Civil Rights Act of 1964, otherwise known as Title VII, prohibits employment discrimination based on religion, it contains an exception for religious institutions. Writing for the Center for Public Justice, Carl Esbeck of the Christian Legal Society explained that such exemptions are necessary if faith-based organizations (FBOs) are to successfully participate in social service programs. According to Esbeck, “[p]rotecting the autonomy of FBOs was done to enable them to succeed at what they do so well, namely help the poor and needy, and to get FBOs to participate in government programs, something FBOs are far less likely to do if they face compromising regulation.”
Yet disagreement continues over both the constitutionality of such exemptions and the civic wisdom of such policies. This is easily seen in recent legislative battles between House and Senate bills over the CARE legislation, a bill broadening access to government funding of FBOs. The House passed the original version, supported by the White House, with an exemption allowing FBOs to discriminate in employment based on religion. The Senate version contained no such exemptions, or even any expansion of access, but instead provided greater tax breaks for charitable donations. Several lawsuits have also been filed over charitable choice and the employment-discrimination exemptions.
While most agree that FBOs currently may discriminate on the basis of religion, the White House Web site provides the following caveat:
“[C]ertain Federal laws and regulations, as well as State and local laws, may place conditions on the receipt of government funds. For example, some employment laws may prohibit discrimination on the basis of religion. Or a State or local law may prohibit discrimination on the basis of sexual orientation or require certain organizations to provide benefits to employees' unmarried domestic partners. Some of these laws may exempt religious organizations, while others may not. Organizations with further questions about this issue may wish to consult a lawyer to find out about the specific requirements that apply to your organization and any rights you may have under the Constitution or Federal laws.”