After sustaining a court defeat in November, this week Christian humanitarian aid organization World Vision appealed an employment discrimination case to the US Circuit Court of Appeals for the Ninth Circuit. A lower federal judge had ordered the organization to pay $120,000 in damages in the case earlier this month after ruling that the organization discriminated when it decided not to hire a job candidate in a gay marriage.
The case shows that gears are beginning to turn in federal appeals courts on the unresolved issue of how federal nondiscrimination law applies to religious organizations when it comes to sexual orientation and gender identity. World Vision’s appeal to the Ninth Circuit follows a ruling this month from the US Circuit Court of Appeals for the Fourth Circuit in favor of a Catholic high school in a similar situation.
The courts are specifically considering the implications of the 2020 US Supreme Court ruling Bostock v. Clayton County. In that case, the high court ruled that Title VII of the Civil Rights Act of 1964 applies to gender identity and sexual orientation. The question for appeals courts now: What is the balance between religious liberty and those new Title VII protections against discrimination?
A federal district court judge ruled in November 2023 that World Vision had violated Title VII when it rescinded a job offer for a customer service position from a woman, Aubry McMahon, after learning about her same-sex marriage. World Vision had argued that the employment decision was justified because it has written standards of conduct that marriage is between a man and a woman. The judge had earlier ruled in favor of World Vision and then reversed his own ruling with a 47-page order.
Lawyers CT interviewed at the time said the judge’s reversal and the sheer length of the ruling showed how unsettled this area of law is.
The damages ruling in the case this month allowed World Vision to avoid a trial over damages, and the $120,000 will be on hold as the case proceeds through appeals. If World Vision ultimately wins the case, it will not pay the damages.
If the Ninth Circuit takes the case, the court has a recent track record that could give World Vision attorneys some hope. It issued a major ruling in favor of the Fellowship of Christian Athletes last year after the ministry was denied access to public schools over the district’s nondiscrimination policies. And while World Vision lost at the district court level, a Catholic school that had lost a similar district level case recently won its case on appeal to the Fourth Circuit.
Charlotte Catholic High School (CCHS) in Charlotte, North Carolina, had fired a substitute teacher after he posted online about his upcoming gay marriage. The English and drama teacher, Lonnie Billard, made the post in 2014 and filed a lawsuit in 2017, showing how long these cases take to wind through federal courts. A federal district judge ruled against the school in 2022.
In early May, the Fourth Circuit reversed that opinion and ruled in favor of the Catholic school, saying it was constitutionally protected from the discrimination statute by the ministerial exception, which shields religious organizations from lawsuits over their hiring and firing of ministry leaders.
“We conclude that because Billard played a vital role as a messenger of CCHS’s faith, he falls under the ministerial exception,” the court wrote. “Seemingly secular tasks like the teaching of English and drama may be so imbued with religious significance that they implicate the ministerial exception.”
One dissenting judge, Robert Bruce King, agreed with ruling in favor of the school but thought the case should have been decided based on the language in Title VII’s religious exemption rather than the ministerial exception, which is a First Amendment doctrine established by federal courts. The ministerial exception ruling dodged the Title VII question, several lawyers told CT.
King wanted to address it.
A “straightforward reading” of Title VII’s religious exemption “bars Billard’s discrimination claim,” wrote King.
“It’s a good ruling,” said John Melcon, an attorney who handles religious employment cases and worked on an amicus brief on the side of the Catholic school. But he added, “We’re disappointed that the court did not decide the case on the basis of the Title VII religious exemption, or at least repudiate the lower court’s analysis of that issue.”
The Title VII question “remains an unclear area of law,” he said. “The Fourth Circuit was probably intentionally trying to avoid that issue.”
The reason religious organizations want Title VII exemptions and not just protections under the ministerial exception is that many employees at religious organizations might not fit a particular court’s definition of a “minister.”
During the oral arguments in the Catholic high school case, Joshua Block, the lawyer for Billard, said that if the court were going to rule in favor of the Catholic school, he “would much prefer the court fit it into a ministerial exception bucket.” He explained that he didn’t want courts to expand the parameters of who was religiously exempted to the “janitor, the lunch lady.”
The Catholic high school had an array of Christian, Mormon, Jewish, and Muslim organizations file on its side in the Fourth Circuit. Among them were the Christian and Missionary Alliance, the Southern Baptist Convention’s Ethics and Religious Liberty Commission, the Evangelical Council for Financial Accountability, Samaritan’s Purse, and The Navigators. Two prominent religious liberty scholars, Michael McConnell and Douglas Laycock, who have argued cases before the Supreme Court, filed their support of the school’s case as well.
Billard, the teacher, is near the deadline for an en banc appeal to have a full panel of Fourth Circuit judges hear the case. He also has 90 days from the Fourth Circuit ruling to appeal to the Supreme Court.
Whether it’s Billard’s case, World Vision’s, or another, the Supreme Court will ultimately need to weigh in on the Title VII issue, Melcon said.
