...............................
:
OFFICE OF FEDERAL CONTRACT :
COMPLIANCE PROGRAMS, United :
States Department of Labor, :
:
Complainant, : Case No. 93-OFC-11
:
v. :
:
AID ASSOCIATION FOR LUTHERANS,:
:
Respondent. :
..............................:
RECOMMENDED ORDER GRANTING RESPONDENT'S MOTION
FOR SUMMARY JUDGEMENT
Complainant, Office of Federal Contract Compliance Programs,
United States Department of Labor, ("OFCCP"), filed an
administrative complaint with the Office of Administrative Law
Judges on April 22, 1993 to enforce the contractual obligations
imposed on Respondent, Aid Association for Lutherans ("AAL"), by
Executive Order 11246 (30 Fed. Reg. 12319), as amended by
Executive Order 11375 and 12086 (32 Fed. Reg. 14303 and 43 Fed.
Reg. 46501, respectively) ("Executive Order"), Section 503 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. § 793, the
Vietnam Era Veterans' Readjustment Assistance Act of 1974, as
amended, 38 U.S.C. § 4212, and the regulations issued
pursuant thereto. OFCCP alleges in its complaint that AAL is a
government contractor subject to the contractual obligations
imposed on government contractors and subcontractors by the
Executive Order, and AAL violated its contractual obligations by
failing to submit affirmative action plans to OFCCP for review as
required by 41 C.F.R. Part 60-2 and Part 60-250. OFCCP asked
that AAL be enjoined from "failing and refusing to comply with
the requirements of E.O. 11246," and for such additional relief
as justice may require, including entry of an order requiring the
immediate withholding of all progress payments, if any, due on
all of AAL's government contracts and subcontracts; immediate
cancellation, termination and suspension of all of AAL's existing
government contracts and subcontracts; and a declaration that AAL
is ineligible for the award of any future government contracts
and subcontracts until AAL complies with such order and until AAL
[PAGE 2]
demonstrates that it is in compliance with the Executive Order.
On January 29, 1994, AAL filed a motion for summary judgment
on two grounds. First, AAL asserts that because it no longer
maintains any government contracts, OFCCP has no remaining
jurisdiction in this matter. Although AAL owned property in
which a federal government agency was a tenant, AAL contends that
it never intended to be a government contractor and has since
sold all of its properties with federal government tenants.[1]
Second, AAL argues that constitutionally OFCCP may not assert
jurisdiction over AAL. As a fraternal benefits society which has
as its purpose the support and benefit of Lutherans and
Lutheranism, AAL asserts that OFCCP jurisdiction, and the
requirement by OFCCP that AAL maintain and follow an affirmative
action plan would entail "ongoing scrutiny" and "entanglement" in
the hiring decisions of AAL, and would therefore violate the
First Amendment. Alternatively, AAL asserts that if OFCCP
jurisdiction is found to be constitutional, it would not be the
"least restrictive means available" to meet the government's
goals, and would therefore violate the Religious Freedom
Restoration Act of 1993.
DISCUSSION
I. OFCCP Jurisdiction over AAL in This Enforcement
Proceeding
A former contractor, such as AAL, who holds no current
government contracts is not subject to any of the substantive
provisions of the Executive Order or the regulations after the
contract is fully performed, however the contractor continues to
be subject to the enforcement provisions in Subpart B of 41
C.F.R. § 60-1. See OFCCP v. Loffland Brothers Co.,
75-OEO-1, at 4-5 (Sec'y Decision April 16, 1984) (citing OFCCP v.
Priester Construction Co., 78-OFCCP-11). Because this is an
enforcement proceeding under Subpart B,[2] OFCCP jurisdiction
over AAL in this matter is proper, regardless of the fact that
AAL no longer maintains any government contracts.
II. Constitutionality of Jurisdiction Over AAL
Although I have found that AAL is subject to the Executive
Order for enforcement purposes, AAL raises a constitutional
defense to the exercise of this jurisdiction. AAL asserts that
OFCCP jurisdiction over AAL would offend the Establishment Clause
in that it would foster an excessive governmental entanglement
with religion.
[PAGE 3]
The Establishment Clause in the First Amendment of the
Constitution provides that "Congress shall make no law respecting
an establishment of religion[]. . . ." Although the
Establishment Clause has generally been applied in the context of
governmental action that benefits a religious activity, it
may also be implicated by a statute that potentially burdens
religious activities. See E.E.O.C. v. Mississippi
College, 626 F.2d 477, 487 (5th Cir. 1980) (citing N.L.R.B.
v. Catholic Bishop of Chicago, 440 U.S. 490, 500-502 (1979);
Committee for Public Education and Religious Liberty v. Regan,
444 U.S. 646 (1980); Lemon v. Kurtzman, 403 U.S. 602 (1971)).
The following three-part test was developed by the Supreme Court
to analyze the constitutionality of legislation under the
Establishment Clause: "[f]irst, the statute must have a secular
legislative purpose; second, its principal or primary effect must
be one that neither advances nor inhibits religion; [and]
finally, the statute must not foster 'an excessive government
entanglement with religion.'" See Lemon v. Kurtzman, 403
U.S. 602, 612-13 (1971).[3]
To determine whether a statute creates excessive
entanglement, courts examine the following three factors: "(1)
the character and purpose of the institution involved; (2) the
nature of the regulation's intrusion into church affairs; and (3)
the resulting relationship between the government and the
religious authority." See EEOC v. Fremont Christian
School, 781 F.2d 1362, 1369 (9th Cir. 1986) (citing Lemon,
403 U.S. at 615). These three factors must be examined in the
instant case to determine if OFCCP jurisdiction over AAL would
give rise to a serious constitutional question. See NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490, 501 (1979). If so,
jurisdiction exists only if an "affirmative intention of the
Congress clearly expressed" is identified. Id.Character and Purpose
OFCCP cites Mississippi College, 626 F.2d 477, in
arguing that AAL is not a religious institution entitled to First
Amendment protection because its character and purposes are
pervasively secular. However, in Mississippi College,
when the Fifth Circuit addressed the Establishment Clause
issue, they reached the opposite conclusion finding the
college "a pervasively sectarian institution." It was
only because of "the minimal burden imposed upon its religious
practices . . . and the limited nature of the resulting
relationship" that the application of Title VII to the college
was found not to be excessive entanglement. Mississippi
College, 626 F.2d at 488.
[PAGE 4]
Likewise, as a fraternal benefit society, AAL's purpose is
the support and benefit of Lutherans and Lutheranism.[4] Around
the time AAL was organized, fraternal societies had formed in
lodges and were offering life insurance policies at very low
rates. The man who first had the idea for AAL belonged to an
Evangelical Lutheran Congregation of Appleton, Wisconsin which
prohibited its members from joining lodges. Lodge ritual and
documents often contained features that pastors and other
Lutheran leaders believed to be incompatible with Christian
belief or Christian practice. Although AAL was not organized
until 1902, History of Aid Association for Lutherans
describes how its Lutheran background had been developing, partly
in Europe and partly in America, for several centuries.
(Defendant's Memo in Support Ex. 1) Membership in AAL was
originally limited to Lutherans who belonged to the Synodical
Conference, but when the Synodical Conference dissolved in 1960,
AAL added the Lutheran Church of America and The American
Lutheran Church to its former field of operation,[5] an
expansion that nearly trebled its potential membership.
(Defendant's Memo in Support Exhibit 1).
AAL has more than 1.4 million members who are organized in
over 6,500 local branches throughout the United States.
(Plaintiff's Ex. 212). The branches relate to specific Lutheran
congregations where they usually hold their business meetings.
The branches and the home office of AAL provide assistance to the
congregations. (Affidavit of Glenn W. Ocock). In 1992, 21,932
charitable and benevolent activities for individuals,
institutions, and Lutheran churches were conducted by AAL
branches through the Helping Hands Program. AAL provides
matching funds and other financial support for these projects.
Most Helping Hands projects are aimed at benefitting Lutheran
congregations or other institutions such as Lutheran parochial
schools. Such charitable and benevolent activities are
considered by AAL members to be a part of practicing their
Lutheran faith. AAL provides more than $4 million in benefits
annually to help Lutheran organizations, high schools, colleges
and seminaries reach their goals (Plaintiff's Ex. 212;
Plaintiff's Group Ex.2). To help Lutheran congregations
appreciate their Lutheran heritage and identity, AAL provides
grants to recognize church anniversaries. In 1992, fifteen
Lutheran seminaries were aided by AAL through special programs,
scholarships, upgrading of professional training for the
faculties, or continuing education for Lutheran pastors and other
church professionals. Through its Confirmation Recognition
Program, AAL provides a confirmation cross and card for branches
to give to the confirmands. AAL recognizes seminary students and
newly ordained pastors by distributing private communion sets to
[PAGE 5]
them. Calendars and diaries with items of historical or
liturgical interest to Lutherans generally are provided by AAL to
AAL members, employees, field staff, and Lutheran congregations
and organizations. Pastors' desk diaries are also distributed by
AAL to Lutheran clergy, vicars, interns, seminarians, and other
professional church workers. In response to requests to support
special projects and programs, research efforts, and worthwhile
endeavors which benefit local Lutheran congregations, AAL awarded
1,308 grants in 1992.
The local AAL branches provide volunteer service and raise
money for the Lutheran churches, schools, individuals and
agencies with which they are associated. (Affidavit of Glenn W.
Ocock). Over 2,200 AAL branches associated with Evangelical
Lutheran Church in America congregations conducted 6,711
projects, raising $9,383,984 and providing volunteer service for
Evangelical Lutheran Church in America churches, schools,
individuals, or agencies in 1992. Over 4,200 AAL branches
associated with the Lutheran Church-Missouri Synod conducted
13,020 projects in 1992, raising $17,358,113 and providing
volunteer service to Lutheran Church-Missouri Synod churches,
schools, individuals, or agencies. Over 680 AAL branches
associated with the Wisconsin Evangelical Lutheran Synod
congregations conducted 1,856 projects in 1992, raising
$2,198,022 and providing volunteer service to Wisconsin
Evangelical Lutheran Synod churches, schools, individuals, or
agencies. Twenty-nine AAL branches associated with independent
Lutheran congregations conducted 74 projects, raising $243,282
and providing volunteer service for Lutheran churches, schools,
individuals, or agencies.
In 1992, AAL provided grants and other financial assistance
totalling $35,116,664 to national Lutheran Church bodies,
Lutheran colleges and universities, seminaries, Lutheran high
schools, congregations, other Lutheran agencies, and individuals.
(Affidavit of Glenn W. Ocock).
AAL employees have worked as part of their jobs on the
Church Membership Initiative, a project aimed at increasing the
number of members of Lutheran congregations. (Affidavit of Glenn
W. Ocock). In support of this project, AAL has expended over
,400,000. As of January 1994, AAL had over 490 loans to
Lutheran Churches in effect. A Lutheran chapel is part of AAL's
home office in Appleton, Wisconsin, and sermons given by a member
of the Board of Directors who is a Lutheran minister are
broadcast throughout the main office before regular meetings of
the AAL Board of Directors.
[PAGE 6]
AAL has one of the nation's largest privately funded
scholarship programs, with nearly $2 million in scholarships
provided by AAL to its members attending universities, nursing
schools, and vocational and technical institutions. (Plaintiff's
Ex. 212).
AAL's support of Lutherans and Lutheranism, the close
relationship between its branches and Lutheran congregations,
that it is a non-profit organization, and that its membership is
limited to Lutherans, and it only sells insurance to members and
their spouses is evidence I credit to support my finding that AAL
is a religious organization whose character and purpose is not
pervasively secular.
OFCCP also argues that AAL is a business and not a religious
organization emphasizing its success in the insurance business.
However, I find AAL's business successes are not material in
light of Feldstein v. Christian Science Monitor, 555 F.
Supp 974, 977 (D.Mass. 1983), in which the District Court for the
District of Massachusetts found a newspaper to be a religious
organization protected by the First Amendment. The court
in Feldstein found that the Monitor is a religious
activity of a religious organization and is therefore allowed to
consider the religious affiliations of candidates for employment.
Id. at 979. The court reasoned that although "'not every
enterprise cloaking itself in the name of religion can claim the
Constitutional protection conferred by that status,'" a religious
organization "does not lose that special status merely because it
holds some interest for persons not members of the faith, or
occupies a position of respect in the secular world at large."
Id. at 978. Similarly, the success of AAL in supplying
insurance to its members and its favorable ratings as an insurer
do not cause AAL to lose its special status as a religious
organization.
For these reasons, I find that although AAL is not
officially connected with Lutheran church bodies, AAL's character
and purpose are so closely associated with the Lutheran religion
that it is a religious organization entitled to First Amendment
protection.[6]
Nature of the Intrusion into AAL's Affairs and
theResulting Relationship between the
Government and AAL
If OFCCP jurisdiction over a religious organization like AAL
is permitted, I find that the nature of the government intrusion
and the resulting relationship between AAL and OFCCP would raise
[PAGE 7]
a serious constitutional question. AAL cites NLRB v. Catholic
Bishop, 440 U.S. 490 (1979), for the proposition that where
jurisdiction results in ongoing scrutiny of a religious entity's
employment practices, it offends the Constitution. In
NLRB, the Court distinguished the ongoing scrutiny
of NLRB jurisdiction from one time transactional jurisdiction
established by other statutes. In cases cited by AAL, where
excessive entanglement was unsuccessfully alleged, the courts
noted that the jurisdiction did not involve the same kind of
detailed monitoring and close administrative contact that NLRB
jurisdiction entails.[7] Although no cases have been
cited where excessive entanglement was alleged in an OFCCP case,
I find OFCCP jurisdiction equivalent to NLRB jurisdiction in its
ongoing and pervasive nature.
This finding is supported by the regulations which
illustrate the full extent of the ongoing and pervasive nature of
OFCCP jurisdiction. Under 41 C.F.R 60-1.4(a), government
contracts must include the equal opportunity clause contained in
Section 202 of E.O. 11246. Annually, government contractors with
50 or more employees and a contract, subcontract or purchase
order amounting to $50,000 or more are required to file EEO-1
reports. 41 C.F.R. 60-1.7(a)(1). Contractors may be required to
keep employment or other records as deemed necessary for the
administration of the order. 41 C.F.R. 60-1.7(a)(3). Compliance
reviews are performed "to determine if the prime contractor or
subcontractor maintains nondiscriminatory hiring and employment
practices and is taking affirmative action to insure that
applicants are employed and that employees are placed, trained,
upgraded, promoted, and otherwise treated during employment
without regard to race, color, religion, sex or national origin."
41 C.F.R. 60-1.20(a). Compliance reviews include "a
comprehensive analysis and evaluation of each aspect of the
aforementioned practices, policies and conditions resulting
therefrom." Where a compliance review uncovers deficiencies,
"conciliation and persuasion" are used to secure compliance. A
specific commitment, including precise action to be taken and
dates for completion to correct any such deficiencies, must be
made by the contractor, in writing, before the contractor may be
found in compliance with the order. 41 C.F.R. 60-1.20(b). Where
a compliance review indicates a violation of an equal opportunity
clause, and it is not resolved by informal means, an
administrative or judicial enforcement proceeding may be brought
to enforce the order and to seek appropriate relief. 41 C.F.R.
60-1.26(a). When a contractor refuses to submit an affirmative
action plan, refuses to supply requested information, or refuses
to allow the compliance agency access for an on-site review,
[PAGE 8]
OFCCP may go directly to administrative enforcement proceedings.
41 C.F.R. 60-1.26(a)(2).
The Director, OFCCP may assume jurisdiction over the matter
when necessary or appropriate to achieve the purposes of the
order. 41 C.F.R. 60-1.25. The Director may conduct any
investigations, hold hearings, make findings, issue
recommendations and directives, order sanctions and penalties,
and take "such other action as may be necessary or appropriate to
achieve the purposes of the order." 41 C.F.R. 60-1.25. OFCCP may
bring an administrative enforcement proceeding to enjoin the
violations, seek appropriate relief, or impose appropriate
sanctions. 41 C.F.R 60-1.26(a)(2). Violations may be found based
on "(i) [t]he results of a complaint investigation; (ii) analysis
of an affirmative action program; (iii) the results of an on-site
review of the contractor's compliance with the order and its
implementing regulations; (iv) a contractors refusal to submit an
affirmative action program; (v) a contractor's refusal to allow
an on-site compliance review to be conducted; (vi) a contractor's
refusal to supply records or other information as required by
these regulations or applicable construction industry
requirements; or (vii) any substantial or material violation or
the threat of a substantial or material violation of the
contractual provisions of the order, or of the rules or
regulations issued pursuant thereto." 41 C.F.R. 60-1.26(a)(1).
Contractors are required to develop written affirmative action
compliance programs for each of their establishments. 41 C.F.R.
60-1.40(a). They must include "identification and analysis of
problem areas inherent in minority employment and an evaluation
of opportunities for utilization of minority group personnel."
Id. A table of job classifications must be a part of an
AAP, including job titles, principal duties, and rates of pay. 41
C.F.R. 41 C.F.R. 60-1.40(a). The evaluation of utilization of
minority group personnel must include:
(1) [a]n analysis of minority group representation in
all job categories.
(2) [a]n analysis of hiring practices for the past
year, including recruitment sources and testing, to
determine whether equal employment opportunity is being
afforded in all job categories.
(3) [a]n analysis of upgrading, transfer and promotion
for the past year to determine whether equal employment
opportunity is being afforded.
41 C.F.R. 60-1.40(b). Within 120 days of the commencement of the
contract, contractors must maintain copies of separate
affirmative action compliance programs for each establishment,
including evaluations of minority group personnel and the job
[PAGE 9]
classification tables. 41 C.F.R. 60-1.40(c). An affirmative
action plan must be part of the "manpower and training plans for
each new establishment and shall be developed and made available
prior to the staffing of such establishment." Id. A
report must be prepared annually of the results of the program at
which time the program must be updated. Id.
41 C.F.R. 60-2 explains the review procedure and the
consequences of a contractor's failure to develop and maintain an
AAP. 41 C.F.R. 60-2.1(a). Detailed guidelines for developing and
judging the AAPs and what constitutes a good faith effort to
implement the programs are also set out. Id. An
acceptable AAP is defined as one that includes "an analysis of
areas within which the contractor is deficient in the utilization
of minority groups and women, and further, goals and timetables
to which the contractor's good faith efforts must be directed to
correct the deficiencies. . . ." 41 C.F.R. 60-2.10. An
explanation must be provided if minorities or women are being
underutilized in any job groups. 41 C.F.R 60-2.11(b).
Underutilization is defined as "having fewer minorities or women
in a particular job group than would reasonably be expected by
their availability." Id. The utilization analysis must be
done separately for women and minorities. Id. 41 C.F.R.
60-2.13 lists the following required elements of an AAP:
(a) Development or reaffirmation of the contractor's
equal employment opportunity policy in all personnel
actions.
(b) Formal internal and external dissemination of the
contractor's policy.
(c) Establishment of responsibilities for
implementation of the contractor's affirmative action
program.
(d) Identification of problem areas (deficiencies) by
organizational units and job group.
(e) Establishment of goals and objectives by
organizational units and job groups including
timetables for completion.
(f) Development and execution of action-oriented
programs designed to eliminate problems and further
designed to attain established goals and objectives.
(g) Design and implementation of internal audit and
reporting systems to measure effectiveness of the total
program.
(h) Compliance of personnel policies and practices with
the Sex Discrimination Guidelines (41 CFR Part 60-20).
(i) Active support of local and national community
action programs and community service programs,
[PAGE 10]
designed to improve the employment opportunities of minorities
and women.
(j) Consideration of minorities and women not currently
in the work force having requisite skills who can be
recruited through affirmative action measures.
41 C.F.R. 60-2.13.
Each year contractors are required to submit a program
summary to OFCCP on the anniversary date of the affirmative
action program. 41 C.F.R. 60-2.14. Compliance is determined by a
review of the contents of the program, the extent to which the
program is adhered to, and good faith efforts "to make its
program work toward the realization of the program's goals within
the timetables set for completion." 41 C.F.R. 60-2.15.
The ongoing and pervasive OFCCP jurisdiction described in
the regulations would present a significant risk of First
Amendment infringement if applied to AAL. Goal setting in the
area of minority hiring, which would be an element of AAL's
affirmative action plan (AAP), would be affected by the fact that
Lutherans are not demographically (racially) representative of
the nation as a whole and Lutheranness is asserted as a bona fide
occupational qualification for some of the positions at AAL.[8]
AAL distinguishes OFCCP's annual reviews which are largely driven
by statistics from EEOC investigations which rely on the filing
of a complaint by an individual who claims to be aggrieved. If
OFCCP were to have jurisdiction over AAL, OFCCP would presumably
attempt to create a pool of available minority Lutheran
applicants. This process would result in government entanglement
with religion, as OFCCP would be in a position of approving AAL's
determination of who is "Lutheran" and who is a "member." AAL
submits that negotiating with OFCCP over which positions require
membership and what the relevant labor market would be is
precisely the type of entanglement the Constitution prohibits.
As Justice Brennan warned in his concurrence in Corporation of
the Presiding Bishop of the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327, 343-44 (1987), a case-by case
analysis of which jobs are religious and which jobs are not
"would both produce excessive government entanglement with
religion and create the danger of chilling religious activities."
Based on my finding of the character and purpose of AAL, and
my finding that the nature of OFCCP's intrusion into church
affairs and the resulting relationship between the government and
the religious authority would be significant, I conclude that
OFCCP jurisdiction over AAL would present a significant risk that
the First Amendment will be infringed.
I find that there is no evidence of a clear expression of an
affirmative intention in the Executive Order or the implementing
regulations that religious organizations like AAL be covered by
the Executive Order. Moreover, OFCCP jurisdiction over religious
organizations like AAL is not essential for the aim of the
Executive Order which is articulated in the regulations as "the
promotion and insuring of equal opportunity for all persons,
without regard to race, color, religion, sex, or national origin,
employed or seeking employment with Government contractors. . .
." 41 C.F.R. 60-1.1.
RECOMMENDED ORDER
I therefore recommend that AAL's motion for summary decision
be granted.
ROBERT G. MAHONY
Administrative Law Judge
Dated:
Washington, D.C.
[ENDNOTES]
[1] AAL owned and operated an office building located at 10127
Morocco, San Antonio, Bexar County, Texas in which it leased
space to the United States General Services Administration (GSA)
Building Realty Branch, pursuant to Lease Agreement No. GS-07B-
13636, dated May 15, 1991, for the amount of ,784,534. (AAL
Doc. Nos. 52-56). This lease was followed by eleven leases and
supplemental leases between AAL and GSA. On January 14, 1994,
the GSA lease was amended to reflect the transfer of the property
to WDS TX, L.P., and AAL has not entered into any government
contracts since that time. (Pl. Ex. 2). Pursuant to 41 C.F.R.
§60-1.4(a), GSA Lease Agreement No. GS-07B-13636 contains an
equal opportunity clause which requires all contractors with
fifty or more employees and contracts for $50,000 or more to
develop written affirmative action plans for each of its
establishments. (Admission No.7) The equal opportunity clause
provides that the contractor "shall take affirmative action to
ensure applicants are employed, and that employees are treated
during employment, without regard to their race, color, religion,
sex, or national origin," and "shall comply with Executive Order
11246, as amended, and the rules, regulations and orders of the
Secretary of Labor."
[2] Subpart B specifies that a contractor's refusal to submit
an affirmative action program constitutes a violation which may
result in the institution of administrative or judicial
enforcement proceedings. See 41 C.F.R. § 60-1.26
(1993).
[3] The same test will be applied to this case brought under
the Executive Order.
[4] The purpose set out in AAL's articles of incorporation is:
. . . to associate Lutherans and their families and
thereby enable them through membership in this
fraternal benefit society to aid themselves and others
with programs of:
1. Insurance and other benefits permissible under the
laws governing Fraternals; and
2. Fraternal and benevolent activities in local
branches; and
3. Assistance to Lutheran congregations and their
institutions; and
4. Assistance to such other lawful social,
intellectual, educational, charitable, benevolent,
moral, fraternal, patriotic, or religious
endeavors as the board of directors may determine.
See Plaintiff's Group Exhibit 2, Feb. 14, 1992 Letter from
Obenberger citing AAL's articles of incorporation.
[5] The eligibility requirements effective February 14, 1990
for membership in AAL are:
a) Persons age 16 or over who are Lutheran.
b) Any person age 16 or over who is the spouse of a person
who is:
1) A Lutheran AAL member; or
2) A Lutheran who is also currently applying for
membership in AAL.
c) Persons age 16 or over exercising the conversion
privilege under health insurance certificates.
For purposes of eligibility for membership in AAL, a person
is presumed Lutheran if the person is a member of a Lutheran
congregation. If the person is not currently a member of a
Lutheran congregation, but is a previous member of a
Lutheran congregation who has not professed another
religion, at AAL's sole and absolute discretion, the person
may join AAL if the person professes to be Lutheran. A
professing Lutheran could be an unchurched Lutheran who:
a) desires to join another Lutheran congregation, or
b) is a student at a technical school, college or
university, or
c) is in the U.S. Armed Forces, or
d) is being served by a Lutheran pastor.
Plaintiff's Group Exhibit 2, AAL Executive Bulletin, February 14,
1990.
[6] See Corporation of the Presiding Bishop of the Church of
Jesus Christ of Latter-day Saints, et al. v. Amos, 483 U.S.
325, 340 (1987) (Brennan, J., concurring) (building engineer in
non-profit gymnasium run by church, who was discharged because he
did not qualify for certificate that he was a church member and
eligible to attend temples, unsuccessfully challenged church's
exemption under §702 of Civil Right Act of 1964).
[7] See EEOC v. Tree of Life, 751 F. Supp 700, 716 (E.D.
Ohio 1990) (no excessive entanglement when Equal Pay Act applied
to private religious educational institution); Lukaszewski v.
Nazareth Hospital, 764 F. Supp 57, 61 (E.D.Pa. 1991) (Age
Discrimination in Employment Act applies to religiously
affiliated hospital); DeMarco v. Holy Cross High School, 4
F.3d 166, 172 (2d Cir. 1993) (Age Discrimination in Employment
Act applies to action brought by lay teacher against parochial
school employer); Geary v. Visitation of the Blessed Virgin
Mary Parish School, 7 F.3d 324, 331 (3d Cir. 1993) (church-
operated elementary school not exempt for ADEA's prohibition of
age discrimination).
[8] AAL uses the legislative history and case law interpreting
Section 703 of Title VII, 42 U.S.C. § 2000e-2(a), in arguing
that Lutheranness is a BFOQ for many of its positions
(interpretive memo on point - cited by 7th Cir.) Citing Title
VII law, AAL argues that they could legally have a religious BFOQ
for many other positions.
