Religious Minorities Need Not Apply: Legal Implications of Faith-based Employment Advertising
| Publication year | 2014 |
| Pages | 27 |
Civil Rights Law
Religious Minorities Need Not Apply: Legal Implications of Faith-Based Employment Advertising
By Matthew Cron, Arash Jahanian, Qusair Mohamedbhai, Siddhartha H. Rathod
About the Authors
Matthew J. Cron, Arash Jahanian, Qusair Mohamedbhai, and Siddhartha H. Rathod are attorneys at the law firm of Rathod | Mohamedbhai LLC whose practice focuses on advocating for the rights of employees in the workplace and protecting the civil rights of individuals oppressed by governmental abuses of power. Substantive review of this article was performed by Adam Mueller, Deputy State Public Defender, Appellate Division. He is the Chair of the CBA Civil Rights Committee.
This article explains why job advertisements that identity the religious beliefs or affiliations of a secular employer violate federal and Colorado anti-discrimination in employment laws. It also discusses such advertisements in Colorado's legal community, which are part of an increase of religion-based employment discrimination claims. Finally, the article offers possible solutions to combat employment discrimination claims based on religion in the legal community and beyond.
Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer:
to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin.[1]
However, religious discrimination in the workplace is often treated less seriously, or viewed as less insidious, than other types of unlawful employment discrimination. This is due in part to the expansion of religious employer rights by the courts. The end result is often social acquiescence and inaction when private secular employers discriminate against employees on the basis of religion. Thus, it is no surprise that religious discrimination charges have more than doubled in the past fifteen years according to the Equal Employment Opportunity Commission (EEOC), far outpacing the rate of growth for discrimination charges generally.[2]
Symptomatic of this growth in religion-based discrimination are employment advertisements that explicitly or implicitly dissuade religious minorities from applying for job openings. For its part, Colorado's legal employment market has not been immune to employers openly stating their religious beliefs when searching for qualified applicants. In a February 2013 job posting on the CBA website, a law firm promoted its "Judeo/Christian Values" as a core value of the firm.[3] Similarly, a Colorado law firm posted an advertisement in October 2013 identifying itself as a "Christian Law Firm."[4]
This article begins by discussing the illegality of job advertisements that express an employer's religious beliefs and affiliations. It then explains how recent court decisions have contributed to the surge in claims alleging religion-based discrimination in employment. Finally, this article discusses potential large-scale solutions to religious discrimination, focusing on the use of testers and self-regulation of the legal profession.
Job Postings That Reference Religion
On February 11, 2013, the following advertisement appeared in the Employment and Classified Advertisements section of the CBA website, as well as on Craigslist:
Family-owned Law Firm seeks Experienced Litigation Attorney
Seeking a Litigation Attorney who has experience handling a litigation case from start to finish. Experience in Bankruptcy and Family Law is also preferred, but not required. Our Core Values: Unquestionable integrity and ethical values; Appropriate quality of life for firm employees; Strong work ethic; Enjoyable work environment; Continued improvement in practice areas; and Continued expansion into new practice areas; and Judeo/Christian Values. Please send your resume with cover letter to [REDACTED] and also complete our online application.
(Emphasis added). Although the CBA quickly removed the reference to "Judeo/Christian Values," the advertisement remained on the CBA's website. The "Judeo/Christian Values" language remained on the Craigslist posting.
A search of Craigslist job postings from a sampling of national locations during the summer of 2013 revealed numerous advertisements stating the employer's religious beliefs, such as a "Christian-based Nursing Staffing Company"; an insurance office looking for an administrative assistant to work in a "Christian environment"; a company seeking a home inspector "grounded by our Christian faith, which will never change"; and "a family owned and operated business . . . [r]ooted in Christian values" seeking a technical support representative. The following advertisements were posted by private Colorado companies:
> "Looking for an individual who is willing to join up w/ a Christian accounting company. Will be a fun filled environment that believes in honesty & integrity in all business activities."
> "Looking for several experienced warehouse associates. This is a GREAT position for students. . . . Must be conservative and comfortable working in a Christian environment."
> "We are a local Christian Company that provides home cleaning services. . . . You will know if you a right fit if you agree with the statements below. . . . You—Are someone who loves the Lord Jesus, and is not afraid to demonstrate it in your life and work."
On October 29, 2013, a Colorado law firm posted an advertisement for a civil law clerk position. The law firm identified itself as a "Christian Law Firm" and stated that "[a]s this is a Christian Law Firm, we ask you to be comfortable with your faith whatever it may be."
Stating Religious Preferences in Employment Ads
Both federal and Colorado law prohibit employers from publishing discriminatory employment advertisements.[5] Title VII makes it unlawful for an employer to publish "any notice or advertisement relating to employment . . . indicating any preference, limitation, specification, or discrimination, based on . . . religion. . . ."[6] The Colorado Anti-Discrimination Act (CADA) provides that an employer may not
print or circulate . . . any statement, advertisement, or publication . . . that expresses, either directly or indirectly, any limitation, specification, or discrimination as to . . . religion. . . ?[7]
As explained by the EEOC:
It is illegal for an employer to publish a job advertisement that shows a preference for or discourages someone from applying for a job because of his or her . . . religion. . . .[8]
The purpose of employment anti-discrimination laws is to remove "artificial, arbitrary and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of . . . impermissible classification[s]."[9] The provisions in Title VII and CADA targeted at employment advertisements are necessary to serve this broad, remedial purpose. Once a person applies for employment, other provisions of Title VII and CADA protect an applicant's or employee's rights.[10] But these provisions protect only those who have sought or obtained employment; they contemplate that the applicant or employee has suffered some tangible harm from the employer's discriminatory employment practices. The provisions that prohibit employers from publishing and circulating discriminatory advertisements strive to ensure that persons will not be discouraged from applying for an open job position because of their "disability, race, creed, color, sex, sexual orientation, religion, age, national origin, or ancestry."[11]Without these provisions, employers could artificially restrict applicant pools through advertisements, undermining Title VII and CADA's goal of removing "artificial, arbitrary and unnecessary barriers to employment."[12]
The advertisement provisions discussed above appear unlawful because they expressly seek applicants of a certain religion, such as the home cleaning service requiring applicants to "love[] the Lord Jesus." These advertisements express a "preference, limitation, specification, or discrimination," based on an applicant's religion because the applicant is required to possess a particular religious belief.[13]
The "Judeo/Christian Values" or the "Christian Law Firm" advertisements may be less obviously discriminatory than the "loves the Lord Jesus" advertisement. These two advertisements identify the employer's religious beliefs, but do not state that they will consider only Christian applicants. The "Christian Law Firm" advertisement also asks applicants "to be comfortable with [their] faith whatever it may be."
Even so, an employer's identification of its religious beliefs and affiliations in an employment advertisement is no less unlawful than the "loves the Lord Jesus" advertisement. An advertisement is discriminatory "if it would discourage an ordinary reader of a particular [religion] from answering it."[14]Intentionally or not, the invocation of "Judeo/Christian Values" or the self-identification of a law firm as a Christian employer will dissuade persons of other religions from applying for the position.[15]The end result is that these advertisements will net an applicant pool strained of religious minorities.
In Housing Rights Center v. Donald Sterling Corp., the U.S. District Court for the Central District of California considered a motion for preliminary injunction based on a claim that a building owner violated the Fair Housing Act by using the word "Korean" in apartment building names.[16]The court found that the plaintiffs demonstrated a likelihood of success on the merits because the use of the word "Korean" would indicate to an ordinary reader...
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