E.E.O.C. v. Fremont Christian School

• Citation: 781 F.2d 1362
• Decision Date: 03 February 1986
• Docket Number: No. 84-2779,84-2779
• Parties: 39 Fair Empl.Prac.Cas. 1815, 27 Wage & Hour Cas. (BN 890, 39 Empl. Prac. Dec. P 35,872, 54 USLW 2443, 103 Lab.Cas. P 34,740, 7 Employee Benefits Ca 1073 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. FREMONT CHRISTIAN SCHOOL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1362

781 F.2d 1362

39 Fair Empl.Prac.Cas. 1815,

27 Wage & Hour Cas. (BN 890,

39 Empl. Prac. Dec. P 35,872, 54 USLW 2443,

103 Lab.Cas. P 34,740,

7 Employee Benefits Ca 1073

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. FREMONT CHRISTIAN SCHOOL, Defendant-Appellant.

No. 84-2779.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 10, 1985.

Decided Feb. 3, 1986.

Justine S. Lisser, E.E.O.C., Washington, D.C., for plaintiff-appellee.

William B. Ball, Ball & Skelly, Harrisburg, Pa., for defendant-appellant.

Appeal from the United States District Court for the Northern District of California.

Before ANDERSON, FARRIS, and NELSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

Fremont Christian School (Fremont Christian), a church-owned and operated private school, appeals from the district court's order granting the Equal Employment Opportunity Commission's (EEOC) motion for partial summary judgment and an injunction prohibiting unequal compensation of married female and male employees. The district court granted summary judgment to EEOC on the issue of liability on the grounds that Fremont Christian had violated Title VII, 42 U.S.C. Sec. 2000e, et. seq., and the Equal Pay Act, 29 U.S.C. Sec. 206(d), and is barred from raising the religion clauses of the First Amendment as a defense for its personnel policies. The employment policy involved here is a health insurance plan provided by Fremont Christian but only to "head of household" employees interpreted by the school to be single persons and married men. Because of the existence of a strong compelling state interest in eradicating discrimination, coupled with the fact that eliminating the employment policy involved here would not interfere with religious belief, and only minimally, if at all, with the practice of religion, we affirm the judgment of the district court.

I. Facts

Fremont Christian School is a private educational institution providing instruction from the pre-school years through twelfth grade. It is wholly owned and operated by the Assembly of God Church, located in Fremont, California.

While persons employed by Fremont Christian need not be members of the Fremont Assembly of God Church, they must be a member in good standing of an evangelical church and subscribe to specific tenets of faith. These tenets include the belief that the Bible is to be taken literally. Among the doctrinal beliefs held by the Church is the belief that, while the sexes are equal in dignity before God, they are differentiated in role. In light of this conviction, the Church believes, based on, inter alia, Ephesians 5:23, that in any marriage, the husband is the head of the household and is required to provide for that household.

In keeping with this belief, until 1976, the Church and Fremont Christian compensated their married male employees at a rate higher than similarly-situated female employees. After learning in January, 1976, that this practice may have been illegal, the school board determined at its September, 1976 meeting that "[s]ince it is possibly illegal to pay a head of household allowance to employees, it was moved ... and seconded ... to eliminate this provision from our contracts. Motion so carried."

Fremont Christian compensates its employees according to pay scales set for the teaching and administrative staff. For teachers, these take into account years of teaching experience, education, and post-degree continuing education efforts. The pay scales are now applied uniformly to both male and female teachers.

As part of its compensation package, Fremont Christian offers all full-time employees disability and life insurance regardless of sex or marital status, the premiums for which are paid by Fremont Christian.

Fremont Christian also provides health insurance as a fringe benefit. However, this benefit is available only to heads of households, interpreted by Fremont Christian to be single persons and married men. Fremont Christian believes that, in any marriage, only the man can be the head of the household, regardless of what his salary is in relation to that of his wife. As explained by Rev. Rankin, the superintendent of Fremont Christian, the test for routine eligibility for health insurance for women is whether they are married. If so, the husband is presumed to be the head of the household, rendering women ineligible for health benefits.

In certain situations, however, where the husband is incapable of providing for his family, by virtue of non-working student status, or illness, Fremont Christian undertakes, as an "act of Christian charity," to extend health benefits to a full-time married female employee for the limited period of her husband's incapacity. Nevertheless, the husband is still scripturally the head of the household.

On June 16, 1981, Ruth P. Frost, a married female employee of the School, filed with the EEOC a charge of sex discrimination against Fremont Christian on the ground that it gives health insurance coverage to its married male employees but not (with minor exceptions) to its married female employees. On December 3, 1982, EEOC issued a Notice of Determination in favor of Mrs. Frost. On May 24, 1983, EEOC brought the present action in the United States District Court for the Northern District of California, alleging violations by Fremont Christian of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e, et. seq., and the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. Sec. 201, et. seq. Fremont Christian, in its answer, denied violation of either act and raised affirmative defenses under the Religion Clauses of the First Amendment. On December 6, 1983, EEOC moved for partial summary judgment on the liability issue. On April 16, 1984, 609 F.Supp. 344, the district court granted EEOC's motion. The district court, on October 17, 1984, denied Fremont Christian's motion for reconsideration and granted EEOC's motion for injunctive relief. On December 4, 1984, Fremont Christian timely appealed to this court.

II. Discussion

Fremont Christian presents both statutory and constitutional arguments against application of Title VII to its employment policies. Before reaching Fremont Christian's constitutional arguments, this court must determine whether the dispute may be resolved on statutory grounds. International Association of Machinists v. Street, 367 U.S. 740, 749-50, 81 S.Ct. 1784, 1789-90, 6 L.Ed.2d 1141 (1961). "The nature of our inquiry is established by NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 [99 S.Ct. 1313, 59 L.Ed.2d 533] (1979). We must first determine whether the proposed application of the statute 'would give rise to serious constitutional questions.' Id. at 501 ". EEOC v. Pacific Press Publishing Ass'n., 676 F.2d 1272, 1276 (9th Cir.1982). If so, we cannot find the statute applicable unless there is an "affirmative intention of Congress clearly expressed" to apply it. Catholic Bishop, 440 U.S. at 501, 99 S.Ct. at 1319; Pacific Press, 676 F.2d at 1276.

A. Application of Title VII

The application of Title VII to the employment practice before us would definitely give rise to serious constitutional questions. See, e.g., Serbian Eastern Orthodox Diocese for the United States and Canada v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952); Pacific Press, 676 F.2d 1272 (9th Cir.1982); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir.1985); McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972). However, we conclude that Congress has clearly expressed the intention that Title VII apply to the present circumstances.

Fremont Christian argues that the exemption created by Section 702 of Title VII, as amended, 42 U.S.C. Sec. 2000e-1 (1982), for religious institutions extends beyond hiring practices and encompasses all other employment practices (e.g., the health insurance compensation program). Both the language and legislative history of Title VII, however, indicate that the statute exempts religious institutions only to a narrow extent. Section 702 provides:

This subchapter shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

To be sure, Sec. 702 prohibits some forms of state involvement in ecclesiastical decisions of employment. See Rayburn, 772 F.2d at 1166. "If, for example, a religious institution were to present 'convincing evidence' that an employment practice favored members of one faith or denomination over another, 'Sec. 702 deprives the EEOC of jurisdiction to investigate further to determine whether the religious discrimination was a pretext for some other form of discrimination.' " Id. (quoting EEOC v. Mississippi College, 626 F.2d 477, 485 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981)).

While the language of Sec. 702 makes clear that religious institutions may base relevant hiring decisions upon religious preferences, "religious employers are not immune from liability [under Title VII] for discrimination based on ... sex...." Pacific Press, 676 F.2d at 1276. Furthermore, Congress and this court have specifically "rejected proposals that provide[ ] religious employers a complete exemption from regulation under the [Civil Rights] Act [of 1964]." Id.

The legislative history reinforces the plain meaning of the statutory text. The original Act passed by the House in 1964 excluded religious employers from coverage altogether. H.R.Rep. No. 914, 88th Cong., 1st Sess. (1964), reprinted in 1964 U.S.Code Cong. & Ad.News, 2355, 2391, 2402. The final version excluded...