religious hiring by religious broadcasters

[Thomas C. Berg]

Recently the Federal Communications Commission, which
regulates the employment practices of its broadcast
licensees as well as their programming, modified its
policies on religious discrimination by religious
broadcasters.  The FCC policy is now to leave religious
broadcasters free to use religion as a factor in hiring for
all their positions, not only for those with religious
content or importance.  MM Docket No. 96-16 (Feb. 25, 1988).
The FCC thus broadened the limited exemption that had been
recognized in King's Garden v. FCC, 498 F.2d 51 (D. C. Cir.
1974).  The FCC action parallels the broadening of the Title
VII exemption for religion-based hiring by other religious
organizations, which was upheld against Establishment Clause
challenge in Corporation of Presiding Bishop v. Amos.  The
FCC's rationale is the same as that set forth in Amos:
there is too much uncertainty for the religious entity in
trying to predict which of its activities a court will deem
religious versus secular.

A separate statement by one commissioner supported the
action but argued that the uncertainty in what is a
"religious position or activity" will simply be replaced by
uncertainty over what is a "religious broadcaster."

Tom Berg


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Thomas C. Berg, Cumberland Law School
Samford University
Email: tcberg at samford.edu