Metropolitan News-Enterprise


Tuesday, December 13, 2011


Page 1


C.A. Uphold’s Church’s Firing of Teacher for Living With Boyfriend




A church school acted within its rights in firing a teacher who lived with a man to whom she was not married and was raising a child with him, the Fourth District Court of Appeal has ruled.

Div. Three Friday affirmed Orange Superior Court Judge Derek W. Hunt’s ruling in favor of the Red Hill Evangelical Lutheran Church of Tustin. The church fired Sara Henry as director of its preschool in May 2009, saying her lifestyle was inconsistent with the church’s teachings.

Henry claimed she was terminated in violation of the Fair Employment and Housing Act and the state’s public policy against discrimination based on marital status. The church responded that it was not an “employer” as that term is defined in the FEHA, that the church has a federally protected right to terminate an employee for religious reasons, and that the “ministerial exception” to the asserted public policy applies.

‘Bible-Based Values’

Hunt conducted a bifurcated trial on the church’s defenses. Henry acknowledged in her testimony that she was an at-will employee, that she was aware that the church requires its teachers to be practicing Christians and that its doctrine condemns sex outside of marriage, and that the school promoted itself as offering a “Christian education” emphasizing “Bible-based values.”

Henry explained that she was married when she first applied for work at the school, but subsequently divorced. She and her boyfriend had their child in 2007.

She said she told church officials during her pregnancy that she and her boyfriend planned to marry but that she was not ready to do so. She said she did not know whether the school principal was aware of the fact that the couple was living together, prior to hearing a complaint from a parent around the end of 2008.

Prior to being fired, Henry met with the principal and a pastor, and reiterated that she planned to marry her boyfriend but did not know when that would occur. The school said she was terminated for “failure to adhere with the Professional Expectations of the teaching staff in that her living arrangements were contrary to the religious beliefs of the church and school.”

Religious Precepts

Hunt ruled that the school, being an integral part of the church, was a religious institution that had the right to hire and fire employees based on religious precepts. Henry’s termination fell in that category, he said.

Justice Eileen Moore, in her opinion for the Court of Appeal, said the church is not subject to the FEHA because it is “a religious association or corporation not organized for private profit” and thus excluded from the definition of employer by Government Code Sec. 12926(d).

Moore rejected the argument that the school was a “nonprofit public benefit corporation that operates an educational institution as its sole or primary activity” and thus subject to the FEHA according to Sec. 12926.2. The argument fails, the justice said, because there was no evidence that the school was a nonprofit public benefit corporation, and because “the school has no independent legal status apart from the church.”

 As for the public policy claim, Moore said it was barred because it was not grounded on any policy expressed in state or federal legislation. Such a claim could not be grounded on the FEHA, for the same reason the FEHA claim itself failed, and could not be grounded on the federal Civil Rights Act of 1964, because that act does not prohibit discrimination based on marital status.

Religious Exemption

Title VII, she added, contains a religious exemption that has been interpreted as allowing a religious organization to terminate an employee whose conduct is inconsistent with the employer’s theology. It has been held, for example, that a religious organization may not terminate an employee for becoming pregnant, but may do so because the employee committed adultery.

It was clear, Moore explained, that the church did not fire Henry due to her pregnancy, or because she had a child out of wedlock; it would have allowed the plaintiff to remain employed if she either married her boyfriend or stopped living with him.

The case is Henry v. Red Hill Evangelical Lutheran Church of Tustin, G044556.


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