March 11, 2019
by John Kaempf

In early 2019, in King v. Warner Pacific College, the Oregon Court of Appeals held that, under an Oregon statute, a Christian school can expressly discriminate against a job applicant on the basis of their religion, and can prefer applicants who are Christian. State statutes like these should be kept in mind because they supplement the First Amendment Constitutional right of Christian schools and churches to freely exercise their religion in the employment process.

Early this year, the Oregon Court of Appeals decided King v. Warner Pacific College. The plaintiff in that case is “of the Hebrew faith.” He sued the defendant, a Christian College, after he unsuccessfully applied to be an adjunct psychology professor. The College has a written policy requiring “each employee to affirm a personal faith in Jesus Christ.” Plaintiff refused to do that. Also, the College intends that “a Christian worldview be integrated into all academic programs.” So, its president refused to hire plaintiff. He sued, alleging this violates Oregon statutes prohibiting employment discrimination based on religion. But the trial court dismissed the case because of Oregon Revised Statutes 659A.006(4). It states that “it is not an unlawful employment practice for a bona fide church or other religious institution to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another.” The court confirmed that this statute “permits religious organizations to discriminate on the basis of religion in employment within their own organizations.” The court also held that under it, “a religious organization may simply choose not to hire as a means of exercising its preference. Accordingly, the College could lawfully ‘prefer’ not to hire a non-Christian applicant.” 

Thus, the Oregon Court of Appeals, not a conservative court, affirmed the dismissal of the case. It also affirmed the ruling that the above statute “protects the College’s decision not to hire plaintiff, a nonChristian.” The parties “agreed that the College discriminated against plaintiff on the basis of religion, but they dispute whether that discrimination was permitted” under Oregon’s statutes. The court held that it is permitted. It also stated that its decision “involves judicial self-restraint rooted in an express legislative respect for a religious perspective. That self-restraint cautions against second-guessing the school’s well-documented decision to teach a subject from a religious perspective.” Because the case was resolved solely on statutory grounds, the Court stated that it was not deciding the case based on the constitutional right to freely exercise religion.

Similarly, Oregon Revised Statutes 659A.006(5) states that “it is not an unlawful employment practice for a bona fide church or other religious institution to take any employment action based on a bona fide religious belief about sexual orientation in employment positions directly related to the operation of a church or other place of worship, such as clergy, religious instructors and support staff.”

So, there are three important lessons for Christian schools and churches from the King case. First, if it is the policy, put in writing that following the Christian faith is a requirement for all employees, including in the school or church’s mission statement and employee manual. Second, consult the employment discrimination statutes of the state where your school or church is located. They may contain additional protections for your school or church, like Oregon’s statutes, not provided in federal law. Third, consult the religious freedom protections in both the U.S. Constitution and the constitution of your state, and the appellate cases interpreting them, which may offer additional protections beyond statutes.