Dolter v. Wahlert High School, C 79-1022.

• Decision Date: 28 January 1980
• Docket Number: No. C 79-1022.,C 79-1022.
• Citation: 483 F. Supp. 266
• Parties: Susan DOLTER, Plaintiff, v. WAHLERT HIGH SCHOOL, Defendant.
• Court: U.S. District Court — Northern District of Iowa

483 F. Supp. 266

Susan DOLTER, Plaintiff, v. WAHLERT HIGH SCHOOL, Defendant.

No. C 79-1022.

United States District Court, N. D. Iowa, E. D.

January 28, 1980.

William G. Blum, Dubuque, Iowa, for plaintiff.

Michael J. Melloy, Dubuque, Iowa, for defendant.

McMANUS, Chief Judge.

This matter is before the court upon defendant's resisted motion to dismiss or in the alternative for summary judgment, filed September 19, 1979. Denied.

Plaintiff brought this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et. seq., alleging sex discrimination resulting in termination of her employment as an English teacher at Wahlert High School in Dubuque, Iowa. She alleges her conformance with all relevant administrative procedural requirements to this civil action and seeks relief in the nature of reinstatement, back pay and attorney's fees. The specific allegations of the complaint relevant to defendant's motion to dismiss are that prior to February, 1978, plaintiff was employed as a teacher by defendant, was single and became pregnant. In February, 1978, she informed defendant of her pregnancy; and in March, 1978, both parties entered into a renewal of contract for her to teach in defendant's school during the 1978-79 school year in spite of her pregnancy. In June, 1978, defendant refused to honor that contract and terminated her employment allegedly on the grounds she was unmarried and pregnant. Plaintiff claims this constitutes sex discrimination.

Defendant moves to dismiss for failure to state a claim or for summary judgment on two separate grounds. First, defendant contends that since it is a private Roman Catholic High School affiliated with and under the auspices of the Roman Catholic Archdiocese of Dubuque, Iowa, any assertion of jurisdiction over it pursuant to Title VII would be in violation of the doctrine of separation of church and state as embodied in the Establishment and Free Exercise of Religion Clauses of the First Amendment to the United States Constitution. Second, defendant contends that pursuant to the "bona fide occupational qualifications" (bfoq) exception to Title VII, 42 U.S.C. § 2000e-2(e), defendant was entitled to set standards of morality for its teaching employees that accord with moral and religious precepts of the Roman Catholic Church; and that since defendant terminated plaintiff for breach of those standards it cannot be held liable to her for sex discrimination.

First Amendment Issue

In arguing that Title VII does not apply to Catholic schools and that if construed to apply to such schools it would violate the first amendment, defendant places singular and special reliance on the recent United States Supreme Court opinion in National Labor Relations Board v. The Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979). In that case the Supreme Court held that schools operated by the Catholic Church to teach both religious and secular subjects are not within the jurisdiction granted by the National Labor Relations Act (NLRA), thus precluding the issuance of orders against such schools by the National Labor Relations Board. In so holding, the Court did not state that the NLRA violated the first amendment, although it noted constitutional problems might exist if the Act were construed to apply to labor relations in sectarian schools. What the Court did conclude was that Congress had not clearly expressed its intent to have the NLRA apply to labor relations in that context. Failing to find such clear and express congressional intent, the Court construed the NLRA not to apply, thus avoiding the first amendment question.

Thus, the Supreme Court in Catholic Bishop of Chicago set forth a two-pronged analysis for courts to apply when deciding issues such as those here raised by defendant. First, a court must decide whether Congress has "clearly expressed" its "affirmative intention" to have Title VII apply to Catholic or other sectarian schools. Id. at 499, 502-06, 99 S.Ct. 1313. But see, id. at 506-10, 99 S.Ct. 1313 (Brennan, White, Marshall, Blackmun, JJ., dissenting). If the court finds such congressional intent, it must next decide whether application of Title VII's anti-discrimination strictures to Catholic or other sectarian schools would excessively entangle government with the religious mission of the school, thereby violating the religion clauses of the first amendment. Id. at 499, 99 S.Ct. 1313. See also Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971).

A. Congressional Intention.

42 U.S.C. § 2000e-2(a)(1) provides in pertinent part:

(a) It shall be an unlawful employment practice for an employer —

(1) to . . . discharge any individual, or otherwise to discriminate against any individual with respect to . . . compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex . . . ; (emphasis added).

It appears there is no dispute that defendant is an "employer" as defined by 42 U.S.C. § 2000e(b).¹

However, 42 U.S.C. § 2000e-1 provides certain religious exemptions from coverage under the Act. It provides in pertinent part:

This subchapter Title VII shall not apply to an employer . . . or 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. (Emphasis added).

Thus, in the context of this case Title VII appears to contain at least a facial inconsistency; for defendant may be subject to the Act as an "employer", 42 U.S.C. § 2000e(b), and may yet be exempt from the Act, at least with respect to its privilege of employing only Catholics to teach at its schools, 42 U.S.C. § 2000e-1.

Prior to March, 1972, section 2000-1 exempted educational institution employees connected with educational activities whether the institutions were religiously affiliated or not. House Report 92-238, reprinted at 1972 U.S.Code Cong. and Admin. News, at 2154. Congress then enacted Public Law 92-261 to delete the exemption for employees engaged in the educational activities of nonreligious schools.

This deletion, however, tends to cloud Congress' intent in originally enacting section 2000e-1 in 1964, for it must be remembered that section 2000e-1 even as originally enacted is quite specific in its terms. It does not exempt religious educational institutions with respect to any and all discrimination. It merely indicates that such institutions may choose to employ exclusively members of their own religion to teach in their schools without fear of being charged with religious discrimination. Thus, in the context of this case Wahlert High School could choose to hire only Catholics and not be held liable for religious discrimination. That was the reading given to the section by the District Court for the Southern District of Mississippi, in EEOC v. Mississippi College, 451 F.Supp. 564 (S.D.Miss.1978), a case relied upon by defendant.

There is no indication in the legislative history that when Congress enacted the 1972 amendment it also intended to exempt sectarian schools from liability for sex discrimination. See 1964 U.S.Code Cong. and Admin. News, p. 2355; and 1972 U.S.Code Cong. and Admin. News, p. 2137. Thus, the court is limited to statutory construction in order to discern Congress' intent.

Adopting the rule of "expressio unius est exclusio alterius", the court concludes that Congress' intent was not to exempt sectarian schools from liability under Title VII for discrimination based on race, color, sex or national origin. In enacting the section 2000e-1 exemption, Congress expressly, specifically and narrowly exempted religious educational institutions only from liability for religious discrimination. Under the above mentioned rule of statutory construction, its decision expressly to exempt this one category of discrimination indicates its intent not to exempt other categories of discrimination.

Indeed, to construe section 2000e-1 to exempt all forms of discrimination in sectarian schools would itself raise first amendment problems since it would imply the government's special preference of sectarian schools over nonsectarian schools. Cf., King's Garden, Inc. v. FCC, 162 U.S. App.D.C. 100, 103-106, 498 F.2d 51, 54-57 (D.C.Cir.1974). The court, therefore, concludes that Title VII applies to sectarian schools where the charge is one of sex as opposed to religious discrimination,² see Whitney v. Greater N. Y. Corp. of Seventh Day Adventists, 401 F.Supp. 1363, 1367-68 (S.D.N.Y.1975); compare, McClure v. Salvation Army, 460 F.2d 553, 558 (5th Cir. 1972).

Having so concluded the court must next consider whether assertion of Title VII jurisdiction over defendant in the context of this case would violate the religion clauses of the first amendment because it would entail excessive government entanglement with the religious mission of the school.

B. Excessive Entanglement.

Defendant's contention that assertion of Title VII jurisdiction over this case would entail excessive entanglement of government with the religious mission of the school is grounded on its essential argument that Ms. Dolter, as a Catholic lay teacher of English, is significantly involved in the religious pedagogical ministry of the Catholic Church.³ To that extent, defendant asserts its right to impose upon all its teacher employees a code of moral conduct including the proscription of pre-marital sexual intercourse. It further contends that since Ms. Dolter obviously violated that moral code, it is protected under the first amendment in discharging her for her moral turpitude. Defendant concludes, therefore, that assertion of Title VII jurisdiction over it in the context of this case would necessarily require this court to pass judgment on the legitimacy of its religious teachings, its moral...