Can States Force Religious Organizations to Provide Harassment Prevention Training?
It’s a legislative trend that is starting slowly but may end up sweeping the states: laws that require employers to provide training to workers about forbidden workplace harassment.
At first blush, mandatory harassment prevention training laws might not seem problematic. Training is already considered to be a best practice in employment law space, and employers commonly require employees to attend initial and refresher training. Training helps mitigate litigation risk, communicates workplace standards and expectations, and can be good for the work culture.
On the other hand, legislatures swept up in their zeal to “do good” sometimes neglect to tailor laws to accommodate religious organizations. Overly prescriptive mandatory training laws might force some employers, particularly ministries, to engage in speech and convey messages with which they might disagree.
Some state laws, for example, require training on gender identity/expression and sexual orientation. Religious groups hold varying perspectives on these topics, and some hew to the belief that only traditional sexual relationships and norms are theologically acceptable. Will state laws now require those groups to train employees to the contrary? Such a result seems incompatible with general principles regarding the
separation of church and state, as well as with constitutional rights to the free exercise of religion. By what authority may “the state” compel a church to indoctrinate its staff—on this or any other topic?
Historically, federal and local employment laws have included some statutory exemptions for churches and other religious groups. For example, Title VII of the Civil Rights Act generally prohibits employers from discriminating against workers based on their religion but permits religious groups to take a worker’s or applicant’s religion into account. Yet these exemptions are typically narrow. As noted, the Title VII exception applies only to discrimination based on religion, not age, gender, or other protected characteristics.
Nor is it likely that new laws obligating employers to provide training on harassment will include exceptions for ministries. Many today view faith-related exceptions to be inconsistent with the push for equality above all. Take the State of New York’s new law requiring harassment training. The law applies to all employers, regardless of size. Hypothetically, at least, a church that employs only a pastor and an organist must provide mandatory sexual harassment training—which must, by the way, be "interactive." This seems heavy handed, not to mention potentially awkward in any number of scenarios (e.g., the pastor and organist are married).
Whether states may command religious groups to provide sexual harassment
workforce training is, for now, an open legal question. But these laws seem bound to lead to litigation, at least where they can be interpreted to command a message that conflicts with a religious group's theological beliefs.
Many articles about these laws available on the internet tend to assume, without much contemplation, that churches and other faith-based groups must comply with them. But that is far from certain. First, state laws already on the books, such as laws against discrimination, might include exemptions for religious organizations that carry over into new training requirements. For example, a state human rights law might exclude ministries in defining covered "employers," and that exclusion might extend to new training obligations. Second, training requirements might apply
only to large employers, effectively exempting most churches and many other religious organizations from their application. Finally, there may be strong arguments that these laws run afoul of constitutional protections as applied to religious organizations.
For most ministries, no immediate action is necessary. Religious groups and their advocates may wish nonetheless to remain attuned to state legislative efforts to impose workforce training requirements that might force a choice between delivering the state's preferred message—or the church's.
In the meantime, please feel free to contact us with any questions you may have.
This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.