Very interesting religion / antidiscrimination law case

[Volokh, Eugene]

From
http://lawprofessors.typepad.com/laborprof_blog/2007/02/a_bfoq_issue_at.
html (by Paul Secunda)

A BFOQ Issue at the Intersection of Religion and Gender Expression

Springarbor Thanks to Jillian Weiss for directing me to this post on
Transgender Workplace Diversity about the recent firing of a professor
from a Christian Michigan college for being a transgender individual.

Here are some excerpts from that post:

    From Michigan comes the story of Professor Julie Marie Nemecek, who
has been fired from her university post as assistant dean of adult
studies and Associate Professor at Spring Arbor University. The
University is firing the professor because she is transitioning from
male to female. She has filed a complaint with the EEOC.

    In response to the EEOC complaint, the university cites its Bona
Fide Occupational Qualification (BFOQ) that legally allows hiring only
Christian employees. "We expect our faculty to model Christian character
as an example for our students," read a university statement issued by a
public-relations firm. Faculty who "persist with activities that are
inconsistent with the Christian faith" are subject to firing. College
officials said the Christian mandate is critical to the university and
is protected by state and federal civil-rights laws.

There are at least three Title VII issues here:  (1) Does Spring Arbor
University qualify for one of the two religious exemptions under Title
VII, (2) if not, is Professor Nemecek being discriminated against based
on one of the proscribed categories under Title VII, and (3) if so, can
the school base its sexually discriminatory policy on not employing
transgender employees on a religious bona fide occupational
qualification (bfoq)?  (There is also a potential First Amendment
expressive association argument that to interpret Title VII to require
the college to have to reinstate the professor as an employee member
violates the college's constitutional associational rights.  Although
some have argued for this type of interpretation in court briefs and
academic commentary, it does not appear to have been followed by any
court yet and so will be set to one side for the time being).

As far as the first issue, the fact that the school is relying on the
bfoq defense suggests that they don't even think they will be able to
rely on one of the religious exemptions.  As to the type of
discrimination at issue, although it is far from clear that
discrimination against a transgender employee is tantamount to sex
discrimination in all courts in the United States, at least prior 6th
Circuit precedent (the circuit in which Michigan is located) has so
held.

Finally on the bfoq issue, religious-based hiring would have to be
reasonably necessary to the normal operation of the particular business.
In other words, what is the essence or the mission of Spring Arbor: is
it education generally or is it a certain type of Christian education
which does not tolerate transgender employees?  If the former, no bfoq
and the employee wins; the latter, a bfoq finding would shield the
employer from liability.

In the end, this is going to be a fact-sensitive case.  On the one hand,
Spring Arbor describes itself as  having a "total commitment to Jesus
Christ as its perspective for learning."  On the other hand, according
to Jillian's post, the school "admits students of any faith, not all of
its faculty is Christian, and it is a recipient of state and federal
funds that prevent discrimination based on gender."

One of the interesting questions in these bfoq cases is how much
deference the court should give to an employer's belief about its own
essence or mission.  The answer to that question in this case will
likely turn out to be determinative in this case.