This Article explores religious institutions’ exemption from Title VII liability for religious discrimination. Religious institutions are allowed to fire and hire employees based on religious preference. For example, a Catholic high school may refuse to hire any non-Catholics. Or, that same high school may fire an unwed pregnant mother. But what happens when the discrimination constitutes both religious and sex discrimination?
The First Amendment prohibits courts from delving too carefully into religious institutions’ policies to determine whether the discrimination constitutes sex or religious discrimination. But there has to be some inquiry, or else it risks violating the Establishment Clause by granting preferential treatment to religious institutions. This Article explores those questions and offers some solutions for courts to evaluate these types of mixed claims.