Religious Institutions + Federal Law + Federal Funds For Social Programs + Disabled Job Applicant = Litigation
Here’s another post in our occasional series on religious discrimination in the workplace. Today, we’re looking at a decision by the federal Sixth Circuit Court of Appeals that brings together three different concepts: religious organizations as employers, disabled persons as employees, and federal laws that apply to hiring. As when you mix any three ingredients that are fine on their own, the results can be disastrous. Throw in legislative history – the record Congress creates when it writes a law, and which some courts look to for guidance on how to interpret that law – and you have one fine mess.
So it was in the case of Doe v. Salvation Army. John Doe applied for a job as a warehouse supervisor with the well-known organization. The interviewer asked if he took any medications, and Doe replied that he used psychotropic drugs. As you can guess, Doe did not get the job. (And, oddly enough, in the several years the litigation has gone on, it hasn't been conclusively determined -- or at least publicly reported -- that Doe was taking psychotropics to cure an illness, or if his claimed disabilty is just the taking of the psychotropics themselves).
Doe filed suit, alleging the Salvation Army’s decision violated the federal Rehabilitation Act, which prohibits “any program receiving federal financial assistance” from declining to hire an “otherwise qualified individual…solely by reason of his or her disability.” A 1988 amendment to the law extended the prohibition by defining a “program” receiving assistance as one “including all the operations of…an entire corporation or other organization” if the organization “is principally engaged in the business of providing education, health care, housing, [or] social services.”
The federal court where Doe filed suit initially granted the Salvation Army’s motion for summary judgment in its favor, holding that Doe was not an “otherwise qualified individual” based on the Salvation Army’s argument that his drug use made him a safety risk. Doe appealed successfully, and the Sixth Circuit sent the case back to the trial court, finding that whether Doe was a safety risk was not clearly established.
Back in the trial court, the Salvation Army argued that it was not “principally engaged in social services” and therefore wasn’t subject to the Rehabilitation Act. The trial court agreed with the Salvation Army again, concluding that it is principally a religious organization, and therefore not principally engaged in social services – and that, therefore, the Rehabilitation Act did not apply to it. To draw this line, the trial court relied in part on a U.S. Senate committee report that accompanied the 1988 amendments: that report said that churches, dioceses, and synagogues would not be considered to be “principally engaged in social services” even if they conduct some programs in those areas.
Doe appealed to the Sixth Circuit once again. This time, the issues before the court were: 1) whether the trial court was right that religious organizations were exempt from the statute; and 2) if not, was the Salvation Army “principally engaged in social services.”
The court started with the text of the Rehabilitation Act itself. Finding no clear exclusion for religious entities from the law itself – and, on the other hand, noting that churches, temples, and the like “have a long tradition of providing…social services,” the court concluded that it needed to rely on the plain language of the Act, which did not exclude religious entities from the definition of groups that provide social services, even if those groups are religious entities or have a spiritual motivation for doing so: “put simply, the provision of social services may be a form of religious worship, but that makes it no less the provision of social services.” Put another way, the court relied on the text of the law that didn’t exclude religious entities – and didn’t rely on the Senate report that described how the Senate viewed the law when it passed it: “Congress knew how to draft such an exception, and did not.”
Finding that the Salvation Army wasn’t clearly excluded from the law, the court turned to whether it was clearly covered by it by being “principally engaged in social services.” The court rejected the lower court’s position that a social program has to be one thing – a principal engagement in social services – and cannot at the same time be something else – a form of religious worship. It noted, though, that the Salvation Army does a lot of things that don’t deal with social programs at all. From the trial court’s record, it was unclear whether the Salvation Army is “principally engaged” in social services for the Rehabilitation Act to apply to it. So, the court sent the case back to the trial court again for more work on that issue.
Given the nature of the issues in this case – their significance and, as the appellate court noted, the role that organizations with some religious functions play in providing community services in health care, social programs, and otherwise – we would not be surprised if the Salvation Army ultimately winds up bringing this issue to the United States Supreme Court.
In the meantime, there’s a general moral of all of this for employers that provide any form of social services, education, or health care: follow careful procedures during employment interviews and, if you decline to hire an applicant that has a disability, be certain you understand the law that applies to that decision.