Religious employers in Washington have long enjoyed a blanket exemption from the fair employment provisions of the Washington Law Against Discrimination (the “WLAD”), RCW 49.60.180. Washington’s exclusion for religiously affiliated nonprofits has been assumed to be far broader than the religious exemptions found in many other states’ antidiscrimination laws. Oregon, for instance, provides a religious exemption from its Fair Employment Practices Act only for a religious employer providing a preference for employees or applicants of the same religion, and then only if the employment involved is closely connected with the primary purpose of the religious institution and not to an unrelated commercial or business activity operated by the institution. ORS 659.020(2). The WLAD, by contrast, completely excludes religious nonprofit organizations from the statutory definition of “employer.” RCW 49.60.040(3).
The constitutionality of the religious-employer exclusion was called into question late last week when the Washington Supreme Court issued its decision in Ockletree v. Franciscan Health System. The Court was deeply fragmented on the constitutional issues presented in the case (the decision was 4-4-1), but the reasoning of five of the nine justices makes it clear that religiously affiliated employers in Washington can no longer rely on a blanket exclusion from state antidiscrimination law.
Before discussing the specifics of the Ockletree case, it is important to point out that larger Washington employers (over 15-20 employees), including religious employers, still have to comply with Title VII and other federal civil rights laws with respect to discrimination on the basis of race, color, sex, national origin, age, disability, and, in most cases, religion (with certain exceptions for particular positions within a religious organization).
The Ockletree decision will have the most impact on smaller Washington employers not covered by federal law, who will now be covered by the WLAD. The decision also affects larger employers, however, as it expands exposure to potential discrimination claims beyond those already covered under federal law to additional categories protected by the WLAD (marital status, sexual orientation, and gender identity).
The Ockletree case involved a security guard, Larry Ockletree, who was employed by Franciscan Health Systems to staff a desk in the emergency department at St. Joseph Hospital, where he checked visitors’ IDs and issued name tags. After his employment was terminated, Ockletree brought race and disability discrimination claims against Franciscan Health under both federal and state law. Ockletree's federal claims were barred because he had not timely filed an administrative charge with the EEOC. Franciscan Health also claimed complete exemption from the WLAD as a nonprofit religious employer, and sought to dismiss Ockletree’s state claims as well.
Before deciding the state-law issue, the United States District Court for the Western District of Washington certified two questions to the Washington Supreme Court to ascertain whether the WLAD’s exemption for religious nonprofit organizations violated the Washington Constitution, either on its face or as applied to a claimant such as Mr. Ockletree, who claimed that Franciscan Health had discriminated against him for reasons unrelated to any religious purpose, practice, or activity.
The Washington Supreme Court turned out to be deeply divided on the issues. In the lead opinion authored by Associate Chief Justice Charles Johnson, four justices concluded that the religious-nonprofit exemption from the WLAD’s definition of "employer" was not unconstitutional under Article I, Section 11 or 12, of the Washington Constitution, and did not find it necessary to address the constitutionality of the exemption as applied to the specific facts of Mr. Ockletree's situation.
Five justices disagreed with the lead opinion, although for quite different reasons. In an opinion authored by Justice Debra Stephens, four justices dissented altogether, concluding that the WLAD’s religious exemption was unconstitutional to the extent that it granted immunity from discrimination claims unrelated to the employer’s religious beliefs, and thus could not constitutionally be applied to bar Mr. Ockletree’s race and disability discrimination claims.
The final justice, Justice Charles Wiggins, concurred in the result reached by the dissent, but reached that conclusion by a different route. Justice Wiggins reasoned that the question should not be whether the employer discriminated on religious grounds, which would require courts to intrude excessively into religious doctrines and practices, but rather whether the employee’s job responsibilities related to the organization’s religious practices. Thus, Justice Wiggins joined the lead opinion in concluding that the religious exemption was not facially unconstitutional, but he agreed with the dissent that the exemption was unconstitutional as applied in Mr. Ockletree’s case, not because it involved race or disability discrimination, but rather because it appeared that there was no relationship between Mr. Ockletree’s job responsibilities as a security guard and his employer’s religion or religious practices.
Given the different approaches taken by the split opinions in Ockletree, there are many questions left to be answered in future cases. We cannot predict with certainty where a court would come out on a case involving a race or disability claim by an employee whose job functions are closely related to the mission of a religious employer. Nor is it clear how a court might decide a case involving a discrimination claim in which a religious employer asserts a religiously based reason for distinguishing between employees based on marital status, sexual orientation, or gender identity.
What is certain is that religious employers in Washington may no longer rely on a blanket exemption as a defense to state-law employment discrimination claims. Employers will need to analyze the employee’s job position and the challenged job practice in any disputed case to determine whether the religious exemption, as applied to the particular situation, is likely to survive constitutional challenge. In the meantime, religiously affiliated employers should considering auditing, and where necessary revising, job postings and position descriptions to ensure that positions whose job duties are related to the religious purpose of the organization adequately articulate the religious connection in all documents describing those positions.