E.E.O.C. v. Pacific Press Pub. Ass'n

• Decision Date: 10 May 1982
• Docket Number: No. 80-4189,80-4189
• Citation: 676 F.2d 1272
• Parties: 28 Fair Empl.Prac.Cas. 1596, 29 Empl. Prac. Dec. P 32,817 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PACIFIC PRESS PUBLISHING ASSOCIATION, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1272

676 F.2d 1272

28 Fair Empl.Prac.Cas. 1596,

29 Empl. Prac. Dec. P 32,817

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. PACIFIC PRESS PUBLISHING ASSOCIATION, Defendant-Appellant.

No. 80-4189.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 13, 1981.

Decided May 10, 1982.

Malcolm T. Dungan, San Francisco, Cal., argued, for defendant-appellant; James H. Quirk, Melinda S. Collins, Brobeck, Phleger & Harrison, San Francisco, Cal., on brief.

Colleen O'Connor, E.E.O.C., Washington, D.C., for plaintiff-appellee.

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

Before TRASK and CANBY, Circuit Judges, and HILL, ^* District Judge.

TRASK, Circuit Judge:

I

This is an appeal from the district court's holding that Pacific Press Publishing Association ("Press"), a nonprofit religious publishing house, violated section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2(a) (1976), ¹ by denying Lorna Tobler monetary allowances paid to similarly situated male employees. Press also was held in violation of section 704(a) of Title VII, 42 U.S.C. 2000e-3(a) (1976), ² for terminating Tobler's employment in retaliation for her filing charges and participating in proceedings under the Act. Because Congress clearly intended to protect employees of religious institutions under Title VII, and because the enforcement of Title VII does not infringe religious freedom under the facts of the present case, we affirm the judgment of the district court.

Press, a nonprofit corporation incorporated under California law, is affiliated with the Seventh-Day Adventist Church ³ and engages in the business of publishing, printing, advertising and selling religiously oriented material. ⁴ All Press employees are required to be members of the church in good standing. Lorna Tobler worked at Press from 1960 until 1975. Her title throughout was "editorial secretary." ⁵

Until 1973, Press paid its employees in accordance with written wage scales under which married men received a higher rental allowance than single men, who in turn, received more than female employees regardless of their marital status. As a married woman, Tobler did not receive an annual utility allowance received by married men, nor was she paid automobile allowances paid to married male, single male and single female employees.

Tobler initiated charges of discrimination with the Equal Employment Opportunity Commission (EEOC) in 1972. In her position as "editorial secretary," Tobler worked for the editor of Signs of the Times, a monthly magazine published by Press. When she filed her initial charges, her duties included not only secretarial, but also administrative and discretionary responsibilities. ⁶ After Press became aware that Tobler was participating in proceedings involving similar discrimination brought by a co-worker, Merikay Silver, Tobler's duties were changed. Press gradually reassigned her discretionary and administrative duties to other workers and, by the summer of 1974, her job involved only secretarial work. ⁷ In October 1973 and January 1974, Tobler filed charges alleging retaliation. In September 1974, EEOC filed suit against Press under section 706(f)(2) of Title VII, 42 U.S.C. 2000e-5(f) (2) (1976), seeking preliminary relief to enjoin further retaliation against Silver and Tobler.

The governing body of the Adventist Church is the General Conference of Seventh-Day Adventists. The General Conference in Session, a meeting of all members of the General Conference, is the only body empowered to change church doctrine. Although complete authority over the management of the publishing house, including employment decisions, rests with Press' Board of Directors, both the General Conference and its Executive Committee may make recommendations and give counsel to Press. On February 14, 1975, a committee of the General Conference passed a resolution recommending that Tobler and Silver be terminated from their employment at Press. The committee found both employees failed to meet the requisite high standards of adherence to Bible teachings and church authority because they had sued the church and "were at variance with the church and unresponsive to counsel." On February 19, 1975, pursuant to the committee recommendation, Press dismissed Silver and Tobler. The EEOC then instituted this action. The parties do not dispute that the Adventist Church and Pacific Press correctly followed their own internal procedures in ordering Tobler's dismissal.

During her employment at Press and throughout this litigation, Tobler has remained a member in good standing of the church. Membership in the Seventh-Day Adventist Church is held through one's local church congregation, and jurisdiction for disciplining church members resides with the local church. Tobler's local church certified her membership in good standing subsequent to her dismissal from Press.

This case presents two issues for the court to consider. First, whether Title VII of the Civil Rights Act of 1964 prohibits a religious publishing house from (a) discriminating in wages because of sex, and (b) retaliating against and ultimately discharging an employee because of her participation in Title VII proceedings. Second, whether application of Title VII in the context of this case infringes the Free Exercise and Establishment clauses of the First Amendment.

II

Press presents both statutory and constitutional arguments against application of Title VII to its employment policies. Press contends that Title VII both expressly and implicitly exempts Press's employment practices from Title VII's coverage. It further argues that if Title VII does apply to Press in the present circumstances, that application violates the First Amendment religion clauses.

Before reaching Press' constitutional arguments, this court must determine whether the dispute may be resolved on statutory grounds. 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, 99 S.Ct. at 1319. If so, we cannot find the statute applicable unless there is an " 'affirmative intention of Congress clearly expressed' " to apply it. Id.

We conclude that the application of Title VII in the circumstances of this case presents serious constitutional questions. Because we have also concluded that these questions must be faced and decided, we postpone discussion of these issues until we reach their merits. The seriousness of the constitutional questions will, we think, be amply demonstrated in that discussion.

We also conclude that Congress clearly expressed the intention that Title VII apply in the present circumstances. Press's claims of entitlement to express and implicit exemptions are refuted by the legislative history of Title VII and its amendments.

During the enactment of the Civil Rights Act of 1964 and in later amendments, Congress specifically considered the scope of Title VII protection within religious institutions and rejected proposals that provided religious employers a complete exemption from regulation under the Act. Title VII provides only a limited exemption enabling Press to discriminate in favor of co-religionists. Section 702 of Title VII, 42 U.S.C. 2000e-1, provides the limited exception available to religious employers:

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....

The legislative history of this exemption shows that although Congress permitted religious organizations to discriminate in favor of members of their faith, religious employers are not immune from liability for discrimination based on race, sex, national origin, or for retaliatory actions against employees who exercise their rights under the statute.

The original version of the 1964 Civil Rights Act passed by the House, H.R. 7152, contained a broad exemption entirely excluding religious employers from coverage under the Act: " § 703. This title shall not apply ... to a religious corporation, association, or society." H.R.Rep.No.914, 88th Cong., 1st Sess. 10 (1963), reprinted in EEOC, Legislative History of Title VII and XI of Civil Rights Act of 1964 at 2010 (1968) ("1964 Legis.Hist.") 1964 U.S.Code Cong. & Ad.News p. 2355. A substitute bill proposed by Senators Humphrey, Dirksen and Mansfield adopted a more limited exemption, making Title VII applicable to religious employers, but permitting them to employ individuals of a particular religion to perform work connected with its religious activities. See "Congressional Debate on Titles VII and XI Introduction," in 1964 Legis.Hist. at 3001, 3004, 3050; 110 Cong.Rec. 12812. The Senate declined an opportunity to revert to a total exemption for religious organizations proposed in a later substitute bill by Senators Clark and Case. ⁸ After debate on the various proposals, the Senate passed the Dirksen-Mansfield substitute. See 1964 Legis.Hist. at 11. The House accepted the substitute without amendment. See Title VII, § 702, 78 Stat. 255 (1964) (current version at 42 U.S.C. § 2000e-1).

During the 1972 Amendments, Senators Ervin and Allen proposed that the employment practices of all religious institutions be removed completely from EEOC jurisdiction. See Legislative History of Title VII of the Equal Employment Opportunity Act of 1972 at 1229-1230 ("1972 Legis.Hist.") 118 Cong.Rec. 1982. Again the Senate rejected the blanket exemption.

The Senate accepted a subsequent proposal by Senator Ervin that broadened the scope of the exemption only slightly to...