On Wednesday, the Sixth Circuit Court of Appeals reversed summary judgment in favor of the Salvation Army on a claim for hiring discrimination because the Rehabilitation Act does not contain an exemption for religious organizations. Doe v. The Salvation Army, No. 11-3019 (6th Cir. 7-11-12). In that case, the plaintiff alleged that he disclosed his prescription for psychotropic medications in response to an illegal question during his job interview for a position as a warehouse truck driver. When he was ultimately not hired for the position, the Ohio Legal Rights Service brought suit on his behalf, alleging disability discrimination in violation of the Rehabilitation Act. Material questions of fact existed as to whether the plaintiff was disabled or a safety question was raised by his use of medication. However, a question existed as to whether the Salvation Army program at issue was even subject to the Rehabilitation Act in that it did not receive any federal assistance and operated as a religious entity. The Court noted that Congress had expanded the scope of the Rehabilitation Act in 1988 to reach non-federally assisted programs of organizations which otherwise received federal assistance and which were primarily social services. Unlike other statutes, the Rehabilitation Act did not contain an exemption for religious organizations. Therefore, even though the Salvation Army’s program might also be religious, it could also constitute a social service activity subjecting the program to the reach of the Rehabilitation Act.
Section 504 of the Rehabilitation Act of 1973 prohibits “any program or activity receiving Federal financial assistance” from discriminating against an “otherwise qualified individual with a disability . . . solely by reason of her or his disability.” 29 U.S.C. § 794(a). Among other things, a plaintiff is required to prove that “the relevant program is receiving federal financial assistance.” In 1988, Congress amended the Rehabilitation Act to define:
a program or activity as including “all of the operations of . . . an entire corporation, partnership, or other private organization” if either (1) federal financial “assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole,” or (2) the organization “is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation,” and any part of the organization receives federal financial assistance. 29 U.S.C. § 794(b), (b)(3)(A)(i)-(ii), as amended by Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28, § 4 (1988) (emphasis added).There was no dispute that the Salvation Army program at issue did not receive any financial assistance, although other Salvation Army programs did receive such assistance. The district court concluded that although the Salvation Army provided social services, it was primarily engaged in religious activities which were not covered by the Rehabilitation Act. Therefore, although its activities were a mix of religious and social services, it was primarily engaged in religious activities, not social services as required by the Act.
On appeal, the plaintiff argued that there no exception for religious organizations in the Act. The Court of Appeals agreed. However, that does not seem to address the issue of the Salvation Army’s “principal[] engage[ments]” for purposes of statutory coverage. The Act does not define “principally engaged.” The Court found it to mean the principal activity of the organization.
Putting the plain meaning of the full statutory provision all together, a corporation of any kind, religious or otherwise, can be principally engaged in the business of providing social services if the organization primarily takes part in matters that promote social well-being. We see nothing in the statute’s plain text that suggests that an organization’s religious status or motivation has any bearing on this inquiry.The Court was concerned that elevating the organization’s motivations for providing the services to exempt the organization from coverage of the Act would likewise exempt all religious hospitals from the Act’s coverage on the grounds that they were motivated by religion to cure and provide services. “This would much more certainly embroil the courts in deciding the legitimacy of a religion’s chosen form of worship than the question we are tasked with answering today.” Moreover, the Court was influenced by other legislative history. First, Congress refused to include such an exemption and overrode President Reagan’s veto (based on similar concerns). Also, other statutes amended by the 1988 amendments included an exemption for religious organizations, but the Rehabilitation Act was provided with no such exemption.
The Court found that the Salvation Army’s mixture of providing social services in a religious context created a material issue of fact as to whether its primary activity was social services or religion. “Given the Salvation Army’s description of the many activities it performs, viewed in the light most favorable to Doe, the record suggests that the Salvation Army may be primarily engaged in the provision of social services.” Therefore, a jury would have to decide whether the principal activity was religious or social services.
Again, the fact that the Salvation Army views its social service as a way of spreading its spiritual teachings is not dispositive—an activity can be both. The issue in this case is not whether the Salvation Army is religious or views these services as worship—we do not doubt that it does. The sole issue is whether these activities could be considered “social services,” and whether the Salvation Army’s primary business is to engage in social services.“Under the current language of the statute, however, the Salvation Army is no different from any other church or religious organization that chooses to engage in one of the statutorily designated activities.”
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
