This training provides an overview of discrimination in federally assisted programs and the civil rights laws that the Office for Civil Rights enforces and specific, detailed information for grantees of the U.S. Department of Justice. Training is offered in six video segment, each of which includes a separate self-test.
Section 4: What are the Civil Rights Laws that Affect Funded Faith-Based Organizations?
This training segment provides an overview of the rights faith-based organizations have to receive federal financial assistance and, once funded, their obligation not to discriminate in providing services or benefits.
In December 2002, President Bush issued Executive Order 13279, entitled Equal Protection of the Laws for Faith-Based and Community Organizations.
This Executive Order was issued to "ensure equal protection of the laws for faith-based and community organizations. " It also seeks to further the national effort to strengthen the capacity of those groups to meet social needs in America's communities.
The Executive Order requires federal funding entities to treat faith-based organizations the same as any other applicant or federally funded group, neither favoring nor discriminating against such organizations in making and administering grant awards.
Under Executive Order 13279, federal, state, and local governments, and other organizations administering federal funds, shall be guided by the following four fundamental principles. First, federal funds for social service programs should be distributed in the most effective and efficient manner possible. Second, the nation's social service capacity will benefit if all eligible groups, including faith-based organizations, can compete on an equal footing for federal funds that support social service programs. Third, no organization should be discriminated against on the basis of religion or religious belief in the distribution or administration of federal funds under social service programs. And, finally, faith-based organizations receiving federal funds may not discriminate against current or prospective beneficiaries based on religion, religious belief, a refusal to hold a religious belief, or a refusal to participate in a religious practice.
On November 17, 2010, President Obama issued Executive Order 13559, entitled Fundamental Principles and Policymaking Criteria for Partnerships with Faith-Based and Other Neighborhood Organizations.
This Executive Order clarifies the partnership between the federal government and federally funded faith-based organizations that was described in Executive Order 13279.
Executive Order 13559 was issued to "promote compliance with constitutional and other applicable legal principles. " It also aims to "strengthen the capacity of faith-based and other neighborhood organizations to deliver services effectively to those in need. "
Because of these Executive Orders, government agencies must remove barriers for faith-based organizations applying for and receiving federal financial assistance, and they must not discriminate either in favor of or against such organizations.
These two requirements pertain to federal, state, and local governments, and other organizations that distribute federal funding.
In January 2004, the Department of Justice issued regulations entitled Equal Treatment for Faith-Based Organizations, located at 28 C.F.R. pt. 38. These regulations discuss what faith-based organizations can and cannot do when providing services paid for with federal funds.
First, faith-based organizations must not use federal funding to advance inherently (or explicitly) religious activities. And, second, these organizations may not discriminate against beneficiaries based on religion or religious belief.
The 2002 Executive Order and the Justice Department's 2004 regulations used the term "inherently religious. " The 2010 Executive Order uses the term "explicitly religious. " The definitions of these two terms are essentially identical. For the purposes of this presentation, we use the term "explicitly religious," which is from the 2010 Executive Order.
Faith-based organizations that receive financial assistance from the Department of Justice are prohibited from engaging in explicitly religious activities. These activities include worship, religious instruction, proselytization, or conversion efforts as part of the programs funded with federal financial assistance.
Although explicitly religious activities are prohibited in the programs or services funded with federal financial assistance, an organization can conduct these activities if it satisfies two conditions. First, the organization must offer these explicitly religious activities separately, in time or location, from the programs or activities funded with federal financial assistance. Second, participation in the programs or activities must be voluntary for beneficiaries.
A faith-based organization receiving federal funds may continue to carry out its mission, including the definition, practice, and expression of its religious beliefs, provided that it does not use federal funding to support any explicitly religious activities.
A faith-based organization receiving federal funding may use space in its facilities without removing religious art, icons, scriptures, or other religious symbols. It may also retain religious terms in its name and include religious references in its mission statements and other governing documents.
Federal laws ensure that funded faith-based organizations cannot discriminate on the basis of religion in the delivery of services or benefits.
As a result, a faith-based organization, in providing federally funded services, cannot discriminate against current or prospective beneficiaries based on religion, religious belief, a refusal to hold a religious belief, or a refusal to participate in a religious practice. A faith-based organization should also ensure that, in all outreach activities related to its federally funded services, it does not exclusively focus on religious target populations.
One significant change under the 2010 Executive Order is that a faith-based organization must establish a referral system for current and prospective beneficiaries who object to the religious character of that organization.
For example, if a domestic violence victim seeks assistance at a church-based federally funded shelter, but objects to the church's religious icons, the church must refer the person to an alternative provider.
The referral system must ensure that referrals to an alternative provider are done within a reasonable time after the date of the objection.
Once the faith-based organization establishes a referral system, it must create policies and procedures to implement that system. However, before funded faith-based organizations implement a specific referral process, they should await further guidance from the Department of Justice.
Executive Order 13559 created an interagency working group to oversee the execution of the Executive Order. This working group aims to bring greater uniformity among agency regulations, guidance, and policies regarding faith-based organizations, while ensuring fidelity to constitutional principles.
The working group includes senior officials from various government agencies, including the Department of Justice. This designated group is expected to review and evaluate existing federal agency regulations, guidance, and policies that relate to faith-based organizations.
Within 120 days from the date of Executive Order 13559 (which was signed on November 17, 2010), the working group was to submit a report to the President. The goal of this report is to identify refinements that should be made in existing regulations, guidance, and policies to ensure consistency with the Executive Order.
The Office for Civil Rights will continue to provide information on its website about developments related to this topic.
The next topic area is the hiring practices of funded faith-based organizations.
Title VII of the Civil Rights Act of 1964 prohibits most employers from making employment decisions based on an applicant's or employee's religious beliefs or practices. At the same time, Title VII also has an exemption for religious organizations. Under this provision, Title VII will not apply to a religious corporation, association, educational institution, or society that seeks to hire persons of a particular religion to perform work connected with that entity's activities. A similar exemption exists for certain religiously affiliated schools if they are owned, supported, controlled, or managed by a particular religion or religious group, or if the curriculum is directed toward the propagation of a particular religion.
This religious organization exemption, which permits religious preference in hiring, applies only to those institutions whose "purpose and character are primarily religious. " The determination of whether a particular employer falls within this "religious" organization exception is made on a case-by-case basis.
Funded faith-based organizations do not forfeit Title VII's exemption from religious discrimination in employment. Some DOJ programs, however, contain statutory provisions that prohibit federally funded groups from discriminating in employment based on religion.
As a result, federally funded organizations should consult with the appropriate DOJ program office to determine the scope of any applicable nondiscrimination requirements.
In 1993, Congress passed the Religious Freedom Restoration Act. Generally, this Act prohibits the government from substantially burdening the exercise of religion.
On a case-by-case basis, the Religious Freedom Restoration Act may allow a federally funded faith-based organization to hire coreligionists, if the faith-based organization can demonstrate two things. First, that the program for which it seeks federal funding is an exercise of its religion. And, second, that requiring it to either forgo its religious preference in hiring or else forgo the federal funding would substantially burden the exercise of its religion. Once the FBO satisfies these requirements, it can make religious-based hiring decisions unless the funding entity shows that applying the nondiscrimination provision furthers a compelling government interest and is the least restrictive means of furthering this interest.
If, under the Religious Freedom Restoration Act, a faith-based organization makes hiring decisions based on religion, it must certify three things. One, it will offer federally funded services to all qualified beneficiaries, regardless of religion. Two, explicitly religious activities will be voluntary and kept separate in time or location from federally funded activities. And, three, it is a religious organization that sincerely believes that abandoning its religious hiring practice in order to receive federal funding would substantially burden its religious exercise.
If an organization contends that it should be able to make religious-based hiring decisions under the Religious Freedom Restoration Act, it must complete a Certificate of Exemption form. This form is available on the website of the Office for Civil Rights at ojp.gov/funding/pdfs/fbo_sample.pdf.
The faith-based organization should submit the Certificate of Exemption form to the agency that provides it with federal funding.
A question that OCR often receives is whether faith-based groups need tax-exempt status under Section 501(c)(3) of the Internal Revenue Code to receive funds from DOJ programs. The answer is no, with the exception of nonprofits funded under the Juvenile Justice and Delinquency Prevention Act.
Many grant programs, however, do require an entity to be a "nonprofit organization" in order to be eligible for funding.
An applicant faith-based organization can establish its nonprofit status in the following four ways. One, the organization has tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. Two, a statement from the state's taxing body or secretary of state certifying that the entity is a nonprofit organization operating within the state, and that its net earnings do not benefit a private shareholder or individual. Three, a certified copy of the applicant's certificate of incorporation or other, similar document that establishes the nonprofit status of the applicant. Or, finally, any of the above, if it applies to a state or national parent organization, with a statement from that organization noting that the applicant is a local nonprofit affiliate.
For more information on civil rights laws as they apply to funded faith-based organizations, you may write to the Office for Civil Rights; Office of Justice Programs; U.S. Department of Justice at the following address: 810 7th Street, NW; Washington, DC 20531. You may contact the Office for Civil Rights by telephone at (202) 307-0690, by TTY at (202) 307-2027, or by e-mail at [email protected] You may also visit the Office's website at www.ojp.usdoj.gov/ocr.
Self Test 4
In this training segment, we provide self-test scenarios to see how well you understand a faith-based organization's right to receive federal financial assistance and that organization's related obligations when providing services and benefits.
Here is background for the scenarios that follow.
People with a Mission of Princeton, a faith-based organization, provides a range of social services to young people. In fiscal year 2012, People with a Mission received funding under the Juvenile Justice and Delinquency Prevention Act and the Victims of Crime Act to operate an after-school program for teenage victims of gang violence.
The first scenario: hiring at People with a Mission.
The Reverend Johnson, pastor of Princeton Assembly, is the founder of People with a Mission. In hiring a coordinator for the after-school program, he wanted someone who shared his values. He asked Sue Williams, a student at a nearby seminary where he teaches, to apply for the job. She submitted her application and was hired.
Does her hiring pose any potential civil rights issues?
Here is the answer to the first scenario.
It might appear that the hiring decision the pastor made in looking for someone who shared his religious views might be problematic. However, DOJ's current position is that a faith-based organization can base its hiring practices on the religion or religious beliefs of an individual if it can demonstrate two things. First, the program for which it seeks or receives federal funding is an exercise of religion. Second, that requiring it to either forgo its religious preference in hiring or else forgo the federal funding would substantially burden that exercise of religion. The final point is that the Justice Department, as the funding entity, has not provided a sufficient justification to prevent the organization from making a religious-based hiring decision. Specifically, it is unable to show that applying the nondiscrimination provision in this instance furthers a compelling government interest and is the least restrictive means of furthering this interest.
This exemption is based on DOJ's interpretation of the Religious Freedom Restoration Act, which prohibits the government from unfairly burdening the practice of religion. For a faith-based organization to receive this exemption, it should file a Certificate of Exemption form with the agency that provides it with federal funding. In this case, those agencies would be the Office of Juvenile Justice and Delinquency Prevention and the Office for Victims of Crime.
It is important to remember, however, that this exemption has no impact on the faith-based organization's obligation not to discriminate against beneficiaries and potential beneficiaries based on religion or religious beliefs.
The second scenario involves an invitation to a church service.
Princeton Assembly has a long-established custom of holding a community supper every Wednesday evening, preceded by a short service in the sanctuary. According to a high-school guidance counselor, at the end of each session of the after-school program, the pastor invites the young people to stay for the devotional service and meal. She said a few would stay, but most would leave.
Are there any potential civil rights issues?
Here is the answer to the second scenario.
A possible violation might be the mixture of the community supper, the devotional service, and the after-school program. Because the events — the after-school program, the community supper, and the devotional — are separate in time, the arrangement might be acceptable. It would be important, however, to find out how "voluntary" the pastor makes the invitation. For instance, do the young people feel pressured to attend? Generally, faith-based organizations should consider the age of the children it serves because children may have a harder time saying "no" to a strong suggestion from someone in leadership. The best practice would be to ask for parental consent before allowing minors to participate in explicitly religious activities that are separate from the federally funded program.
The third scenario deals with a participant's objection to religious content.
The guidance counselor referred Bart Benet, a high-school student, to People with a Mission. After his first session of Sue Williams's after-school group, Bart reported the following to the counselor: "I just didn't feel comfortable. There were crosses everywhere. They kept talking about Jesus, saying how much faith saves you, and then I felt pressured to go to church. "
Are there any potential civil rights issues?
Here is the answer to the third scenario.
A possible problem is that Bart says he "felt pressured to go to church" and "they kept talking about Jesus. " In thinking about this issue, it would be helpful to understand who pressured him to go to church and who kept talking about Jesus. If other students in the peer group talked about their beliefs, that is not problematic because they, of course, have their own First Amendment rights. But if the group leader made those statements, that would be an explicitly religious activity (proselytization) that cannot occur at the same time and in the same location as the federally funded program. It would be helpful to know if this discussion occurred during the program and whether students were allowed to participate voluntarily. Finally, it is acceptable under the Equal Treatment Regulations for a faith-based organization to keep its religious symbols in the area where it operates the federally funded program. Religious icons or symbols, such as crosses, in and of themselves, are not problematic.
The fourth scenario involves the responsibility of a funded faith-based organization to refer a beneficiary to an alternative service provider.
Bart Benet told The Reverend Johnson that he would not attend any more after-school sessions at People with a Mission, as he was uncomfortable being in a church. The pastor told Bart to take a few days to think about it.
Did The Reverend Johnson respond appropriately to Bart?
Here is the answer to the fourth scenario. The pastor probably responded appropriately when he asked Bart to take a few days to think about staying in the program. Under Executive Order 13559, the pastor should have, however, also given Bart a referral to an alternative provider within a reasonable period of time. People with a Mission should have referral policies and procedures to ensure that beneficiaries who object to its religious character can access services from other sources.
The fifth scenario deals with the tax status of funded faith-based organizations.
People with a Mission has no form on file with the IRS recognizing its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code.
Is this a problem?
This typically is not a problem unless the program is funded under the Juvenile Justice and Delinquency Prevention Act. Here, People with a Mission is funded by a grant under that Act. As a result, it would need to have Section 501(c)(3) status with the Internal Revenue Service.
This concludes the Self-Test on the training segment, What are the Civil Rights Laws that Affect Funded Faith-Based Organizations?