Thursday, September 27, 2012

Fwd: IRFA to EEOC: Protect Religious Hiring

eNews for Faith-Based Organizations
September 27, 2012

Editor: Stanley Carlson-Thies 
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In this issue
IRFA to EEOC: Protect Religious Hiring!
Another Burden Imposed by the HHS Contraceptives Mandate
The NLRB and Religious Higher Education
Administration Accommodation of Conscience
Notable Quotes
IRFA Needs You
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IRFA to EEOC: Protect Religious Hiring!    


The Equal Employment Opportunity Commission recently solicited public comments on its Draft Strategic Enforcement Plan. The plan is intended to help the EEOC to cope with an increasing number of job discrimination issues despite reduced resources. Among the issues to receive special attention, according to the draft plan, will be LGBT job discrimination, problems arising under the Americans with Disabilities Act, and "facially neutral" hiring practices that harm particular groups of potential employees.


The draft plan said nothing about ensuring protection for the religious hiring rights of faith-based organizations as various new enforcement initiatives are undertaken. So IRFA submitted a comment to draw attention to this important issue.


IRFA's letter reminds the EEOC: "religious hiring by religious organizations does not constitute illegal job discrimination. Rather, religious hiring by religious organizations with respect to all positions is protected in Title VII (the religious organization exemption) and with regard to ministerial employees by the First Amendment (the ministerial exception)." Title VII is the employment provision of the 1964 Civil Rights Act. The ministerial exception, protecting the ability of religious organizations to select their ministerial leaders, was upheld by the U.S. Supreme Court earlier this year, which unanimously struck down the EEOC's position (Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC).


The letter notes that the EEOC's website buries its information about these religious hiring freedoms, making it-erroneously-seem that the law forbids religious organizations as well as secular ones to consider religion when making hiring and firing decisions. The letter asks that the religious hiring freedoms be given more prominence on the website, that the EEOC's compliance manual be updated to take account of court decisions concerning religious hiring (including Hosanna-Tabor), and that the EEOC staff be given extensive specific training on the religious hiring freedoms.

For more on the religious hiring freedom, see the resources on IRFA's website. 

Another Burden Imposed by the HHS Contraceptives Mandate   


Many faith-based organizations (and also businesses with religious owners) consider themselves in a real bind: they want to offer their employees health insurance but have a conscientious objection to covering in that insurance artificial birth control and/or emergency contraceptives that may act by inducing abortions.


Because they aren't churches, they don't qualify for the "religious employer" exemption. They might qualify for an "accommodation" for "religious organizations," but that provision, which will still make them complicit in the provision of all FDA-approved contraceptive services for free to their employees, has not yet been designed. (For details on all this, see IRFA's memo for parachurch organizations.) No wonder that there are now 30 lawsuits against the federal government, with more than 80 plaintiffs.


There is a way out: the employer could stop providing health insurance but instead give the employees the funds to buy health insurance on their own. The employer's conscience issues are resolved: the employees get insurance-that's good; the insurance doesn't cover products and services that the employer regards as morally wrong-that's good.


But this solution turns out to be pretty complicated, according to Gary Miller of DePaul University. Writing recently in the Update Newsletter of the Association of Catholic Colleges and Universities, he shows that it could cost an employer as much as $8,000 per employee per year to try to "make them whole" if the employer drops its employee insurance coverage. It's a complicated calculation that includes the greater cost of insurance bought on the individual rather than group market (even with the new insurance exchanges), the need to add to the salary an additional amount to cover the cost of taxes on the extra salary paid to cover the individual health insurance purchases, the penalty on the employer, starting in 2014, for not providing employee insurance, and more.


And that's not the end of it, Miller points out. Because the various employees would need to be paid different amounts to be made whole (e.g., employees with children will have to shell out more to buy their own insurance than will singles), the employer would likely run afoul of laws requiring equal pay for equal work.


The only way around that problem would be to calculate the average cost of the former group health insurance and then give that amount to each employee, even though some employees then would come out ahead and others would have to chip in from their own pockets to come up with enough for an individual health policy.


Or the federal government could drop the contraceptives mandate, or expand the "religious employer" exemption to cover all organizations that object to the contraceptives coverage, or find a different way to expand access to free contraceptives. What's it going to be?
The NLRB and Religious Higher Education

On September 12, two subcommittees of the House Education and the Workforce Committee held a joint hearing, "Expanding the Power of Big Labor: The NLRB's Growing Intrusion into Higher Education."  Whether or not you are a fan of the National Labor Relations Board and unions, you should still be deeply concerned about how this federal agency is (mis)treating Catholic colleges and universities.


The NLRB has jurisdiction over unionization, but that jurisdiction ought not to extend to religious higher education since the government should not be interfering with the governance of religious institutions (see: separation of church and state). In fact, the NLRB has already had its hand slapped in a number of notable court cases because of its over-reach. But those court decisions haven't stopped the NLRB, which keeps insisting that it can and should get involved when employees at one Catholic institution or another start a unionization drive. How does it justify this? In these instances, the NLRB claims that, for one reason or another, the Catholic colleges or universities just aren't religious enough to have religious rights under the First Amendment. No matter that it is exactly such line-drawing and trawling through the internal lives of religious institutions that the courts have told the NLRB to stop doing!


Whether or not the NLRB is trying to "expand the power of big labor," as the joint hearing insisted, it clearly is running roughshod over the institutional religious freedom of faith-based colleges and universities.

Further reading:


Michael P. Moreland, Testimony to the joint subcommittee hearing, Sept. 12.


Kevin Theriot,  "Protecting Catholic Colleges from External Threats to Their Religious Liberty," Jan. 2011 (Center for the Advancement of Catholic Higher Education at the Cardinal Newman Society).

Administration Accommodation of Conscience      


The Obama administration's positive action was not much noted at the time, so, although very belatedly, here is the story.


The PEPFAR program, started by President George W. Bush (with the flashy endorsement of Bono), is a huge investment of US dollars to battle HIV/AIDS, particularly in Africa. It extensively, and deliberately, utilizes faith-based organizations, both US-based ones and indigenous ones. As noted by a State Department report to Congress in 2005, "Faith-based groups are priority local partners. In many focus countries, more than 80 percent of citizens participate in religious institutions. In certain nations, upwards of 50 percent of health services are provided through faith-based institutions, making them crucial delivery points for HIV/AIDS information and services."


But there's a problem: the federal government is convinced that condoms are a key element in an effective battle against HIV/AIDS, but many religious people and organizations, both in the US and in the countries where services are to be provided, are sure that condom distribution undermines the most effective way to overcome the epidemic. Insisting that organizations include condom distribution and education in their services is likely to exclude many of the most effective organizations, including those faith organizations located far from big cities and uniquely trusted because of their religious authority.


USAID, the State Department agency that runs the PEPFAR program, modified its grant rules in February to resolve this dilemma. The amended rules say that an organization with a conscientious objection to certain activities cannot be required, as a condition of receiving PEPFAR funding, "to endorse, utilize, make a referral to, become integrated with or otherwise participate in any program or activity to which the organization has a religious or moral objection." The organization has to notify USAID of what activities or elements it objects to in a timely matter, but cannot be rejected for that reason. Its application for funding has to be evaluated based on what the organization will do, and not be treated less favorably because of what it will not do. It is up to the government to devise a way to supply missing services that it regards as essential.


That's a reasonable and laudable accommodation of religious exercise, enabling the federally funded services to be delivered effectively by not excluding the government's best partners.


H.T. Jonathan Imbody.


Further reading:


Dennis Sadowsky, "USAID's directive on conscience gives church officials glimmer of hope," Catholic News Service, March 23.


USAID revised regulations, AAPD 12-04 (Feb. 15).
 Notable Quotes

* Why Government Should Look Elsewhere Than Churches For More Revenue


Leroy Huizenga, "Euro Cities to Try Taxing Churches," First Thoughts (First Things magazine), Sept. 16.   


"Why shouldn't churches be taxed, in general? One reason has to do with preserving a healthy separation of Church and State. If Churches can be taxed, then the government can get into the business of running them (or crushing them) through tax policy, like it does most everything else. Another reason is that private institutions like churches contribute to the common good both as charitable institutions directly serving people through its various programs and also as space as a community mediating between individual and the State. A third reason is more practical: Churches generally do a better job administering social programs than government does (which, one suspects, grates government functionaries). A fourth reason applicable to Europe in particular: The reason most people bother visiting Europe and spending significant tourist dollars there is the legacy of beauty produced by Europe's Christian heritage. I speak here of course of the great Cathedrals and churches of Europe, as well as European art, much of which is Christian."


* Catholic Schools Subsidize the Government


Sister Mary Ann Walsh, "Catholic schools give America more than chump change," USCCBlog, August 22.



"I've bought pizza, chaperoned dances, donated to appeals - all fundraisers for Catholic schools - and paid tuition. Which is why I am bent out of shape by an article on church finances in Aug. 18 issue of The Economist. The article in the magazine that defines itself as 'authoritative' makes all kinds of claims without data to back them up. Most annoying is its blithe statement that local and federal government 'bankroll' Catholic schools. . . .


"The government has a mandate to educate youth, and some public schools in well-off suburbs perform spectacularly; in other areas, not so well. However, in meeting its obligation, the government gets huge help from the Catholic Church, to the tune of about $23 billion dollars a year. That is what the government does not have to pay because Catholic schools educate about two million U.S. students annually. Catholic schools provide a realistic choice in education. Given this $23 billion, you could argue it's the church subsidizing the government (or 'bankrolling' it, if you wish to use The Economist's hyperbole), not vice versa."


* More Transparency Is Not Always Better


"Is Transparency the Best Medicine?" Reid and Riege, P.C., Nonprofit Organization Report, Summer 2012.


"[T]ranslucence is the best medicine. There are outside parties with a legitimate interest in knowing that your organization is well managed and financially sound . . . and it is important to let in sufficient light to obtain its sanitizing benefits and to maintain goodwill and a positive reputation. Nevertheless, nonprofits should not lose sight of the fact that they are private associations with both a fiduciary duty and a right to keep many things private."


H.T. Alliance for Charitable Reform


* Curtailing Essential Services By Squeezing Religious Freedom


Casey Mattox, "Obama HHS-Abortion Mandate Hurts Access to Healthcare for the Poor,", Sept. 20.


"[B]ecause of this mandate, Christian ministries that refuse to compromise their faith will be forced to curtail their services to those in need, forcing them to choose between debilitating fines or abandoning aid to the poor and needy altogether.

"Sure, the Obama administration has provided an 'exemption.'  But the so-called 'exception' has four requirements that an organization wishing to claim its protections must satisfy.  Among others, the organization seeking an exemption must 'primarily serve persons who share its religious tenets.'


"In other words, Christian ministries must do 1 of 2 things to satisfy the Obama Administration's demands. Either sacrifice your convictions about sexual ethics or stop serving non-Christians.


"Christian ministries feed millions of hungry people all over the world and here at home every day.  They provide clean water and medicine, they build homes, schools, and orphanages, and provide the supplies and staff to run them.  They also work to stop child sex trafficking and provide disaster relief all over the world.  And they don't turn away the Muslim mother of a hungry child or the Hindu refugee.  It's that last part that makes them ineligible for any grace from the HHS mandate.  Because they serve persons of other faiths, HHS demands that they must sacrifice tenets of their own faith."

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