By Ted Olsen
In a recent case before the California Court of Appeal, a church's dismissal of its preschool director - after she divorced, lived with her boyfriend in a sexual relationship, had a child out of wedlock, and then raised the child with the father in the same home - was found lawful. The Court ruled that, as a matter of law, the discharge did not violate the state Fair Employment and Housing Act, Title VII, or California state public policy. Henry v. Red Hill Evangelical Lutheran Church of Tustin, 2011 Cal. App. LEXIS 1545 (Cal. App. Dec. 9, 2011). Although much of the decision is unique to religious employers and ministers, the case is of importance to all employers in two respects. First, the Court held that the dismissal did not reflect marital status or gender discrimination. Second, the dismissal was found not to violate California public policy.
Among other tasks, the director at the "Bible-based" preschool taught young children, led her children in prayer each day, and spoke to children about Jesus on a daily basis. Two or three times a week, she taught a Bible story. When disciplinary action was required, she brought in "some theme from a Bible story or a teaching of Christianity." She participated in the hiring of teachers, made classroom assignments, and periodically led a chapel service attended by all teachers. Every week she gave a tour of the preschool to parents of prospective students, emphasizing that, if they sent their children to the school, they could expect their children would receive a "Christian education" and Bible-based "Christian values."
The Court held that she was not discharged because of her marital status (or her gender), but because of her living with her boyfriend and raising her child out of wedlock. This was proven by the fact she was not fired when she was first divorced. Nor was she fired when she remained unmarried. Nor was she discharged when she had a baby out of wedlock. Rather, her dismissal was because the church learned she was living with her boyfriend in a sexual relationship and raising their child out of wedlock. As the Court put it,
Had Henry decided to marry her boyfriend, the church would have been satisfied. But the church would also have been satisfied and Henry would have kept her job even if she decided against marrying him. She could have moved out of their shared residence. In fact, after Henry explained to the school board her hesitancy to remarry, one of the school board members specifically asked her, "Why do you have to live with him?" What they could not allow was to have Henry, its face and representative to the students and parents of the students who attended its school, to continue living in what it considered a sinful manner. In other words, if Henry stopped living with her boyfriend she could continue in her job. That being the case, the evidence at trial indicates her employment was terminated based upon a matter of religion, not her sex and not her having had a baby out of wedlock.
Because the plaintiff's public policy claim was apparently based on her marital status and gender discrimination claims, under the FEHA and Title VII, the above rationale disposed of the public policy claim.
As noted at the outset, most of the decision in Henry addresses defenses unique to churches and other religious employers. The defendant church was a not-for-profit religious corporation that was excluded from the FEHA, Cal. Gov. Code, §§ 12926(d) & 12926(f). Moreover, the defendant church was free to discriminate against the plaintiff on the basis of religion under Title VII's "ministerial" exception, 42 U.S.C. §§ 2000e-1(a) & 2000e-2(e)(2), as it extends to all employees of a religious institution whose primary function is to serve its spiritual and pastoral mission.
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©2012 Sherman & Howard L.L.C. January 3, 2012