In a case that could have far-reaching implications for faith-based nonprofits, a federal judge in Washington state ruled Nov. 28 that World Vision unlawfully discriminated against a woman in a same-sex marriage when it rescinded her job offer.
The judge’s ruling most certainly will be challenged on appeal, setting up further conversation about the limits of faith-based organizations to get exceptions to federal labors laws that bar discrimination in hiring.
One key aspect of this debate is what constitutes religious employment. While that definition may be clear for a church employing a minister, it is less clear for a nonprofit employing a customer service representative. In other words, are all staff positions within a faith-based nonprofit “religious” in nature or just some?
This also runs up against the religious abstention doctrine, a long-recognized legal precedent that says secular courts may not interfere in the internal religious workings of a church or church-related entity. That doctrine is central to the ongoing case of Will McRaney against the Southern Baptist Convention North American Mission Board. McRaney claims although he is an ordained minister he was defamed by NAMB for non-religious reasons.
The World Vision case
The plaintiff in this case is Aubry McMahon, who in 2021 applied for and was offered a position as a customer service representative at World Vision, a $1.4 billion organization doing humanitarian work around the world.
After McMahon told her potential employer she was married to a woman, World Vision’s human resources office explained its position against same-sex marriage and withdrew the job offer.
This was not new territory for World Vision. In 2014, the nonprofit announced it would hire people in same-sex marriages but quickly reversed course due to backlash from its conservative evangelical base.
The result was a hiring standard that says “biblical sexuality” is expressed “solely within a faithful marriage between a man and a woman.”
McMahon sued, alleging discrimination under Title VII of the Civil Rights Act of 1964.
At first, U.S. District Judge James Robart ruled for World Vision, citing the religious abstention doctrine as his reasoning. McMahon asked for reconsideration, and the outcome was Robart reversing his earlier ruling. He determined he had “erred” in applying the religious abstention doctrine to a non-ministerial staff position.
“Applying the ministerial exception to the principally administrative customer service representative position would expand the exception beyond its intended scope.”
World Vision claimed the position would be “ministerial” because McMahon would be required to pray with donors as needed.
Upon second thought, the judge didn’t buy that argument.
“Applying the ministerial exception to the principally administrative customer service representative position would expand the exception beyond its intended scope, erasing any distinction between roles with mere religious components and those with ‘key’ ministerial responsibilities,” he wrote.
The result, he said, is that McMahon “suffered an adverse employment action based on a facially discriminatory employer policy.”
What this means
Focus on the Family, the nation’s leading anti-LGBTQ voice among evangelicals, issued a dire warning about this ruling via an article in its Daily Citizen: “This ruling makes all Christian ministries who seek to live faithfully by the teachings of Jesus deeply vulnerable to the controlling power of the new sexual regime, regardless of how hard they try avoiding LGBT topics.”
John Melcon, an attorney with Sherman and Howard who handles religious employment cases and is a former law clerk in the 5th U.S. Circuit Court of Appeals, told Christianity Today: “The fact that the court here oscillated showed that this is a close question. Other courts would come out different ways.”
He added: “These questions about the intersection of religious liberty and nondiscrimination law, those still need to be worked out in the appellate courts and ultimately the U.S. Supreme Court.”
One reason this hasn’t been worked out yet is because the door to potential litigation was opened only in 2020, when the U.S. Supreme Court ruled in Bostock v. Clayton County that Title VII applies to gender identity and sexual orientation as well as race and gender. Title VII already includes an exemption for religious employers to hire faith leaders based on beliefs.
What has not been worked out is the very essence of McMahon’s claim: Can a faith-based organization — and does that mean only nonprofits or also for-profits? — require all levels of employees to adhere to its standards on sexuality if those standards otherwise violate the nation’s anti-discrimination laws?
This cuts straight to one of the greatest fears of conservative evangelical pastors and ministry leaders: That they might be forced to give equal hiring opportunity to gay custodians or lesbian customer service agents. Currently, religious nonprofits tend to have monolithic staffs on issues of doctrine.
For now, Judge Robart’s order is not a final ruling but means the case can go to trial to determine damages World Vision has not yet indicated its next steps.