by Jac La Tour
Recently, we wrote about a World Vision case that would have wide ministry implications. By now, you may be asking, “What are the implications?” and “How do they affect my ministry?”
To answer these questions and give you a sneak peak into what to expect at the October 18 event, Staffing Ministries with Fellow Believers: Lessons and Mischief from the Recent World Vision Decision, we spoke with a legal expert who will be presenting. L. Martin Nussbaum, Esq., is an attorney who focuses on labor and employment, litigation, non-profit organizations, and religious institutions. He helped us understand some implications of the decision.
- Of the three judges (O’Scannlain, Kleinfeld, and Berzon), two voted that World Vision was a religious organization and one did not. Each one wrote a separate opinion. Judge O’Scannlain (who wrote the lead opinion) responded to the plaintiff’s argument that the exemption should be limited to “churches and entities similar to churches,” reasoning that if Congress had intended to so restrict the exemption, “it could have said so.” Judge O’Scannlain adopted this three-part test to determine whether an employer was a religious organization:
- Is it organized for a self-identified religious purpose?
- Is it engaged in activity consistent with, and in furtherance of, those religious purposes?
- Does it hold itself out to the public as religious?
With some minor differences, Judge Kleinfeld agreed with these same three questions and then added a fourth:
- Does it not engage primarily or substantially in the exchange of good or services for money beyond nominal amounts?
Judge Kleinfeld’s additional test is capable of substantial mischief. If it became law, some plaintiffs would argue it excludes from the religious organization exemption (Title VII of the Civil Rights Act of 1964) religious hospitals, retreat centers, church preschools, Christian camps, churches that charged for youth mission trips or other outings, churches that charged for any type of retreats, religious publishers, faith-based social services ministries that contract with the government, and many other organizations.
- The World Vision decision is binding in the Ninth Circuit. Accordingly, it is a persuasive but not controlling authority in non-Ninth Circuit states. A Colorado religious organization, for example, could argue that any of the other published opinions are more persuasive than World Vision and the judges in the Tenth Circuit states would have to decide which approach to follow. Ministries concerned about protecting their freedom to staff themselves with like-minded people of faith need to take precautions like we’ll be discussing at our seminar.
- Legal strategies to ensure that ministries have freedom to staff as they choose will be discussed at the seminar and involve a very thoughtful approach to the content of a ministry’s articles, bylaws, statement about itself, and its human resources architecture.
You can still register for this half-day seminar in Colorado Springs, which is being presented on October 18, 2010. It will address these topics:
- The World Vision Decision: a “Victory” Breeding Mischief
- The Human Resources Freedom Architecture
- Benefits and Beliefs
- Critical Issues for Ministries Active Internationally
For details and registration information, visit www.rothgerber.com/events.aspx.