Christian university that fired unmarried pregnant instructor discriminated based on marital status

By Joy Waltemath

By Kathleen Kapusta, J.D.

Observing that “at its heart, this lawsuit is about what happens when an employment policy based on an employer’s sincerely held religious belief conflicts with an employee’s rights under federal and state discrimination laws,” a federal district court in Oregon found a nonprofit Christian university discriminated against an unmarried pregnant employee when it fired her after she refused to marry her partner or stop living with him. Although the court granted summary judgment in her favor on her state-law marital status discrimination claim, it denied the parties’ cross motions for summary judgment on her state and federal gender and pregnancy bias claims (Richardson v. Northwest Christian University, March 16, 2017, Aiken, A.).

The university expected its faculty to adhere to “Biblical Christianity,” hired only Christian faculty, and expressly required them to integrate their faith into their jobs. When it hired the employee, the job description stated that the successful applicant would “provide a solid model of ethical leadership” and “contribute to the integration of faith and learning by addressing this issue in class and in curriculum.” As part of her application, she submitted a personal faith statement and expressed excitement about working with faculty “who demonstrate a maturing Christian faith, ethical leadership, [and] a strong moral compass[].”

Unmarried with children. At the time she was hired, she had two children but was not married. Four years later, she announced that she was pregnant. After confirming that she was unmarried, the university told her to stop living with the father of her child, marry him, or lose her job. When she refused the first two options, she was fired. In her termination letter, the Vice President for Academic Affairs wrote “Our focus is maintaining an institution which reflects its core values based upon the Christian faith. Those core values do not allow for the lifestyle which you have chosen and, based upon your letter, intend to continue. I have tried to be clear with you that sexual relations outside of marriage is contrary to the University’s core values. Despite your statements, it is known within the University, both to faculty and to students, that you are a single mother and your pregnancy would result in a very demonstrative violation of that core value.”

Ministerial exception. The university first argued that the ministerial exception required dismissal of the lawsuit, but the court disagreed. Applying the factors outlined in the Supreme Court’s Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC decision, the court noted that the employee’s title was secular, she did not undergo any specialized religious training before assuming her job, and while she held herself out as a Christian, there was no evidence she held herself out as a minister. Further, any religious functions she performed as a professor were secondary to her secular role, said the court, noting she did not perform any religious instruction and had no religious duties such as taking students to chapel or leading them in prayer.

Ecclesiastical abstention. Nor did the ecclesiastical abstention doctrine, which precludes courts from interfering “in the internal affairs” of religious organizations to “resolve religious controversies that incidentally affect civil rights,” apply as there was no need to pass judgment on questions of religious faith or doctrine in order to resolve the employee’s claims because they could be resolved by applying ordinary principles of employment law.

Pregnancy and sex discrimination. Turning to the employee’s sex and pregnancy discrimination claims, which were analyzed together, the court rejected her assertion that the university’s extramarital sex/cohabitation policy was facially discriminatory because it “treat[ s] pregnant unmarried women different from non-pregnant unmarried women.” The policy applied to all employees and did not expressly differentiate on the basis of a protected trait, said the court, noting that “at bottom, this case is about competing inferences regarding defendant’s motivation; that type of dispute is a poor fit for the facial discrimination framework.”

As to her intentional discrimination claim, the court observed that the university’s enforcement of its extramarital sex/cohabitation policy—when it learns through rumors or self-reporting that an employee is having extramarital sex/cohabitating and when it learns through rumor, self-reporting, or observation of pregnancy that an unmarried employee is pregnant—gives rise to a plausible inference of discriminatory intent because pregnancy is the basis of one of two enforcement categories and only women can get pregnant.

Pretext. And while the university identified its extramarital sex/cohabitation policy as the reason for the employee’s termination, a juror could infer that its chosen enforcement method would necessarily and obviously lead to disproportionate enforcement against pregnant women. Further, in the correspondence leading up to the employee’s termination, the university expressed concern that her pregnancy, once visible, would make it obvious that she, an unmarried woman, was sexually active.

Finally, the court observed, the university knew she was an unmarried mother when it hired her yet only asked about her compliance with its policy when she disclosed her pregnancy. Thus, said the court, a juror could conclude the university “was less concerned about its employees having sex outside of marriage and more concerned about people knowing its employees were having sex outside of marriage—a concern that arguably amounts to animus against pregnant women.” Because reasonable jurors could disagree regarding pretext, neither party was entitled to summary judgment on this claim.

Marital status discrimination. As to whether firing an employee for cohabitating constitutes marital status discrimination under Oregon law, the court observed that this was a question of first impression. While, the employee argued that her marital status drove the termination decision because she was prohibited from doing something—cohabitating with the father of her child—that she would not have been barred from doing had she been married, the university claimed she was fired because of her conduct, not her marital status.

Conduct vs. status. The court first found the Oregon statute at issue ambiguous and fairly susceptible to both parties’ interpretations. Further, a split in authority in other states regarding whether rules against extramarital sex or cohabitation are marital status discrimination supported the conclusion that the term “marital status” is ambiguous. Observing that the statute neither defines “marital status” nor addresses the validity of a distinction between conduct and status, the court turned to sexual orientation discrimination cases. While in that context, conduct (as expressed by who one marries and/or has sex with) and status are a near-perfect fit, in the marital status discrimination context, the relationship between conduct and status was not as clear because single and married people alike have sex outside of marriage and live with people who are not their spouses.

Nonetheless, the court found the sexual orientation discrimination cases “illuminating because they underscore that ‘[c]onduct and status are often inextricably linked.” Quoting Justice O’Connor in her concurrence in Lawrence v. Texas, the court wrote when “‘the conduct targeted by a law’ is ‘closely correlated’ with a protected status, ‘the law is targeted at more than conduct; it is instead directed toward’ the class of individuals who have the protected status.” Noting that even though both married and unmarried individuals may have sex outside of marriage, when single people have sex, it is always outside of marriage, the court found that the conduct/status correlation here was close enough that a policy against extramarital sex/cohabitation effectively discriminates on the basis of marital status.

Based on the absence of any evidence suggesting Oregon has a public policy of prohibiting sex outside of marriage, the close correlation between the conduct prohibited by the university and marital status, the questionable utility of a bright-line distinction between conduct and status in this context, and the canon of statutory construction governing remedial statutes, the court concluded that Oregon’s marital status discrimination law makes it illegal for an employer to impose a policy prohibiting extramarital sex or cohabitation.

And while the university argued that Oregon law expressly permits religious entities to prefer employees on the basis of shared religion, the court explained that although it could not be held liable for hiring only Christians, there was no accompanying exemption from a claim of marital status discrimination. Thus, the court found the university discriminated against the employee because of her marital status in violation of Oregon law.

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