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According to the U.S. Equal Employment Opportunity Commission, it is illegal to discriminate against a current employee or candidate based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.

Does this apply to religious institutions selecting their own clergy? I'm going to guess that it's allowed if there is a religions reason (e.g. the Roman Catholic church has a religious restriction forbidding women from being priests). But if there is not a religious reason, would they be permitted to discriminate?

For instance, could a Protestant church that does not have any religious restriction regarding the race of clergy still choose to discriminate based on race for their own reasons (perhaps they only want to hire a black pastor, or say that they will reject candidates who are black pastors)?

Or are religious institutions given some sort of protection regarding their hiring practices?

  • Something about genuine and unavoidable necessity of work. A bar priding and marketing itself on service by scantily-dressed male waiters would have fair reason to not hire women as waiters; a gym priding and marketing itself as "by women, for women" would have fair reason to not hire men as trainers. But a regular bar or gym, doesn't have a genuine need, and wouldn't be allowed to discriminate. – Nij Apr 12 '17 at 5:00
  • If the job was "waiter" yes; if the job was "waiter-prostitute combination" it would be a much more convoluted case. Point is, if the job requires a person to be X, and they're not, then it's okay to discriminate on that basis. But it has to be a genuine need, and not just a preference, as you point out. – Nij Apr 12 '17 at 5:30
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    For one thing, religious organizations may discriminate on the basis of religion. This seems obvious in some cases (synagogue may require that their rabbi be Jewish) but not in others (comprehensive university operated by Christian denomination may require that their professors be Christian, even those who teach secular subjects such as history, mathematics, etc). It isn't limited to "clergy" in the traditional sense. This is sometimes surprising to academics applying for their first jobs. – Nate Eldredge Apr 12 '17 at 5:36
  • Closely related: Can an employer require employees be Christian?. See in particular the reference to 42 USC 2000e-1 – Nate Eldredge Apr 12 '17 at 5:40
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This is known as the "ministerial exception". Because the Free Exercise and Estalishment clauses of the First Amendment prohibit the government from interfering with religion, the government cannot override a doctrine that contradicts the teachings of a religion (so women and gays cannot sue the Catholic church for not being hirable as priests).

In Hosanna-Tabor v. EEOC, an individual taught classes and led prayer at a religous school, but was fired ultimately due to a disability (narcolepsy). The Lutheran church does not have any known doctrine condemning narcolepsy: but it was unanimously ruled that "the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own". Thus the church was legally permitted to fire the individual due to her disability.

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    Just to make it slightly more explicit, the primary impact of Hosanna-Tabor v. EEOC was to allow churches a much wider latitude (but not carte blanche) in who they consider a "minister" within their organization, and therefore subject to the ministerial exception. A church secretary is a "minister" because she takes calls on the emergency prayer line. A math teacher at a religious school leads the class in prayer before the start of lessons. A member of the worship band plays a vital role in the worship service, etc. – BradC Apr 12 '17 at 20:22

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