The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.
Larry Ockletree worked as a security guard for a non-profit religious organization, FHS. Following the termination of his employment, Ockletree raised claims of race and disability discrimination against his former employer. FHS moved to dismiss Ockletree’s WLAD claims, arguing that it is exempt from the WLAD’s definition of an “employer,” which expressly excludes “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).
The United States District Court certified two questions to the Washington Supreme Court: (1) whether the WLAD’s exemption for non-profit religious organizations violates the privileges and immunities clause or the establishment clause of the Washington Constitution; and (2) if not, whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons unrelated to a religious purpose, practice or activity.
Court Lead Opinion Upholds Religious Exemption Under WLAD
In the lead opinion, four justices found that the WLAD exemption does not violate the Washington Constitution. The lead opinion first held that the exemption does not violate the privileges and immunities clause, because the exemption does not confer a benefit to religious non-profit organizations at the expense of other organizations and because a right of action for discrimination in private employment is not a fundamental right rising to the level of a “privilege.” Further, the lead opinion held that even if a privilege or immunity were at issue, there is a reasonable ground for distinguishing between religious non-profits and other non-profits: the religious non-profits’ constitutional right to free exercise of religion. The lead opinion also rejected the argument that the WLAD exemption violates the establishment clause, holding that the exemption does not confer a direct financial benefit to religious non-profits.
While the lead opinion did not expressly address the question of whether the WLAD exemption is unconstitutional as applied to an employee claiming discrimination for reasons unrelated to a religious purpose, the opinion cited with approval to a U.S. Supreme Court case holding that “it is a significant burden on a religious organization to require it . . . to predict which of its activities a secular court will consider religious.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336 (1987).
A four-justice dissent swung the opposite direction from the lead opinion on the issue of the WLAD exemption’s constitutionality under the privileges and immunities clause. Arguing that the right to bring an employment discrimination suit is a privilege protected by the Constitution, the dissenting opinion asserted that the WLAD exemption thus bestows a privilege or immunity on religious non-profits. The dissent further argued that there are no reasonable grounds for distinguishing between religious and secular non-profits with respect to discrimination claims unrelated to religion. Thus, the dissent asserted that the WLAD exemption is facially unconstitutional as applied to Ockletree’s race and disability discrimination claims.
But Majority of Court Also Finds WLAD Religious Exemption Unconstitutional As Applied To Employee Whose Job Does Not Relate To Employer’s Religious Practices
With an even split between the lead opinion and the dissent, the opinion of Justice Wiggins was the critical component of the Court’s decision. Justice Wiggins agreed with the lead opinion’s holding that the WLAD exemption is not facially unconstitutional. Significantly, however, he re-characterized the second question certified to the Court, holding that “the exemption is reasonable only to the extent that it relates to employees whose job responsibilities relate to the organization’s religious practices.” Justice Wiggins therefore agreed with the dissent’s conclusion that the exemption is unconstitutional as applied to Ockletree.
The majority of the Court, as articulated in the dissent and Justice Wiggins’ opinion, have held that the WLAD religious exemption is unconstitutional as applied to employees in Ockletree’s circumstances: employees whose job responsibilities do not relate to the employer’s religious practices and whose discrimination claims are unrelated to the employer’s religious purpose. Given the split decision of the Court, it less clear whether the exemption would be deemed unconstitutional as applied to an employee with only one of the above factors (for example: (1) an employee whose job responsibilities relate to the employer’s religious practices, but who brings a claim unrelated to religion; or (2) an employee whose job responsibilities do not relate to the employer’s religious practices, but who brings a claim of discrimination based on religion). One thing is clear. Religious non-profits can no longer depend on immunity from discrimination claims under the WLAD when it comes to many of their employees.
Note: This post also appeared in Stoel Rives’ excellent appellate law blog, the Notice of Appeal.