McClure v. Salvation Army

• Decision Date: 26 April 1972
• Docket Number: No. 71-2270.,71-2270.
• Citation: 460 F.2d 553
• Parties: Mrs. Billie B. McCLURE, Plaintiff-Appellant, v. The SALVATION ARMY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 553 (1972)

Mrs. Billie B. McCLURE, Plaintiff-Appellant, v. The SALVATION ARMY, Defendant-Appellee.

No. 71-2270.

United States Court of Appeals, Fifth Circuit.

March 17, 1972.

On Rehearing April 26, 1972.

Andrew C. Hall, Edward L. Greenblatt, William R. King, Atlanta, Ga., for plaintiff-appellant.

John F. Goemaat, John de J. Pemberton, Jr., Julia P. Cooper, Equal Employment Opportunity Comm., Washington, D. C., amicus curiae.

Jefferson D. Kirby, III, Harry V. Lamon, Jr., Atlanta, Ga., for defendant-appellee; Hansell, Post, Brandon & Dorsey, Atlanta, Ga., of counsel.

William J. Moss, John K. Bouman, Cadwalader, Wickersham & Taft, New York City, amicus curiae.

Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.

COLEMAN, Circuit Judge:

The Salvation Army is a church and Mrs. Billie B. McClure is one of its ordained ministers, see facts set forth in the published opinion of the District Court, McClure v. Salvation Army, 323 F.Supp. 1100 (N.D., Ga., 1971).

Mrs. McClure brought suit below, dismissed for lack of jurisdiction, which requires a determination of whether Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e, et seq. applies to the employment relationship between a church and its ministers and, if applicable, whether the statute impinges upon the Religion Clauses of the First Amendment.¹ Restricting our decision to the church-minister relationship and expressly refraining from any decision as to other church employees of a type not involved in this controversy, we affirm the judgment rendered below.

After undergoing a two year training period at The Salvation Army's Officers Training School, Mrs. McClure was commissioned as an officer minister in June, 1967. She then received various assignments within the Southern Territory, first as a Corps Commander, next as a Welfare Casework Supervisor in Divisional Headquarters, and finally as a secretary in the Territorial Headquarter's Public Relations Department.

After her officer status had been terminated by The Salvation Army, Mrs. McClure began a civil action against that organization in the United States District Court for the Northern District of Georgia, alleging that it had engaged in discriminatory employment practices against her in violation of Title VII.²

More specifically, she alleged that she had received less salary and fewer benefits than that accorded similarly situated male officers, also that she had been discharged because of her complaints to her superiors and the Equal Employment Opportunity Commission EEOC with regard to these practices.

She sought reinstatement, an injunction against further discriminatory practices, and a judgment for the alleged deficiency in compensation paid to her as compared to male Salvation Army officers whose responsibilities were equivalent to those she performed.

The Salvation Army moved to dismiss the complaint for want of jurisdiction in that (1) it was neither an "employer" nor a person engaged in an "industry affecting commerce" within the meaning of §§ 701(b) and (h)³ of Title VII and (2) since it is a "religious corporation" for which Mrs. McClure had voluntarily agreed to perform "work connected with the carrying on by such corporation * * * of its religious activities", it was not subject to the provisions of Title VII by reason of § 702 thereof.⁴ There was also an answer, asserting, inter alia, that since it is a church, application of the provisions of Title VII to The Salvation Army under the circumstances presented by this action would constitute a violation of the First Amendment of the Constitution of the United States.

Mrs. McClure later filed a motion for leave to file an amended and supplemental complaint; to maintain the suit as a class action on behalf of all female officers and all former female officers of The Salvation Army in the United States; and to add The Salvation Army, a religious and charitable organization operating in the United States as four separate corporations, each operating under the corporate name, "The Salvation Army", as a party defendant.

Action on this motion was delayed pending action on The Salvation Army's motion to dismiss for want of jurisdiction.

Upon a hearing on the motion to dismiss (at which both parties presented witnesses) the District Court found that The Salvation Army was a religion⁵ and concluded that Mrs. McClure's activities ". . . were connected with carrying on of the religious activities of The Salvation Army" in accordance with § 702 of Title VII. Apparently concluding that such a finding exempted The Salvation Army from liability for the alleged discrimination, the District Court then sustained the motion to dismiss for want of jurisdiction.

On appeal, neither Mrs. McClure nor the EEOC, as amicus curiae, question the Salvation Army's status as a religion or her status as a minister engaged in the religious or ecclesiastical activities of the church. However, they contend that the Army is not exempt from the prohibitions of Title VII and is therefore liable for discriminating against Mrs. McClure on the basis of sex with respect to compensation, terms, conditions or privileges of employment.

The Salvation Army again contends, as it did in the District Court, that it is neither an "employer" nor is Mrs. McClure an "employee" within the definition of those terms as defined by Title VII. Should we disagree with this contention, it then urges that the exemption provided by § 702 of Title VII applies to The Salvation Army "with respect to its officers (ordained ministers) performing work connected with The Salvation Army's religious activities". Were we to decide that the exemption provided by § 702 is not applicable to the facts as presented by this appeal, The Salvation Army urges that the application of the provisions of Title VII to the relationship between it and its officers (a church and its ministers) is violative of the Religion Clauses of the First Amendment.

I

If the provisions of Title VII are to apply to the relationship between The Salvation Army and Mrs. McClure it is necessary that it be an "employer" engaged in an "industry affecting commerce" and that she be an "employee" as those terms are defined by § 701(b)(f) and (h) of the Title.⁶

In addition to not specifically excluding religious organizations from the term as defined, the intention of Congress to allow such an organization to qualify as an "employer" is shown by the fact that in subsequent provisions of Title VII, limited and specific exemption from the Title's prohibitions were provided for them. The effect of these provisions is to cause a religious organization qualifying as such to be considered as an "employer", and to eliminate only certain of their employment relations from the prohibitions of Title VII.

That The Salvation Army qualifies as an "employer" engaged in an "industry affecting commerce" is illustrated by the following facts: Employment figures for the Army show approximately 3,000 people located in the several states which comprise the territory which it classifies as "employees", whose gross annual earnings are over $7,000,000 plus an additional 1,330 officers which it classifies as "non-employees"; an interstate activity responsible for administering and expending funds in excess of $147,000,000, managing property holdings worth more than $62,000,000 as of 1969, and deriving an income of $30,000,000 a year, of which $9,000,000 is derived from interest, dividends, sales, and services; a paper, "The War Cry", is printed by the national organization and sold nationwide, which produces income.

The existence of these facts demonstrates that The Salvation Army, though a religious organization not organized to engage in commerce, is nevertheless an "employer" engaged in an "industry affecting commerce". Organizations affecting commerce may not escape the coverage of social legislation by showing that they were created for fraternal or religious purposes. Polish National Alliance of the United States v. NLRB, 322 U.S. 643, 64 S.Ct. 1196, 88 L.Ed. 1509 (1944); Mitchell v. Pilgrim Holiness Church Corp., 7 Cir., 1954, 210 F.2d 879, cert. denied 347 U.S. 1013, 74 S.Ct. 867, 98 L.Ed. 1136 (1954).⁷

Because Title VII's definition of "employee" is not restrictive, the existence of such a status for a certain individual must turn on the facts of each case.

After filing an application, Mrs. McClure was selected by The Salvation Army as a candidate for officership. She was then trained in all phases of her duties for a period of two years. After her training was completed, she was commissioned as an officer. Her assignments to various positions in the Southern Territory were completely within the control of her superiors. Supervision over the performance of her work was maintained through the direct observance of a superior officer, the use of reports and the audit of certain records that were kept by her. At no time was she allowed to undertake a project without the approval of a superior officer. She was subject at all times to the right of termination retained by The Salvation Army. Her amount of compensation was governed by a national salary schedule set by The Salvation Army, which also provided her with workmen's compensation insurance.

Thus the record shows that Mrs. McClure was selected, employed, controlled, trained, and paid by The Salvation Army. When the existence of such factors is shown, the individual falls within the definition of "employee". See Tarboro v. Reading Company, 3 Cir., 1968, 396 F.2d 941, cert. denied 393 U.S. 1027, 89 S.Ct. 637, 21 L.Ed.2d 569 (1969); Santa Rosa Island Authority v. F. Rust Smith & Sons, Inc., 5 Cir., 1962, 303 F.2d 576.

The Salvation Army's contention that Mrs. McClure is a volunteer because the terms of her application state that she will regard herself as such, ignores the fact that employment contracts cannot be used to waive protections granted to employees by an Act of Congre...