The Law Should Protect Wiccans From Religious Discrimination—But Will It?

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Analysis The Politics of Politics

The Law Should Protect Wiccans From Religious Discrimination—But Will It?

Imani Gandy

Pauline Hoffmann alleges that the Catholic university at which she was a professor denied her a promotion and pressured her to resign because she's a Wiccan.

“You might not want to be so overt about being a witch if you want to move up.”

That’s what Pauline Hoffmann, a professor at St. Bonaventure University who sought a promotion, was told by then-Provost Michael J. Fischer, according to a lawsuit Hoffmann filed in federal court in New York last month. Hoffmann alleges that St. Bonaventure higher-ups refused to promote her to the highest academic position at the university and pressured her to resign as dean of the Jandoli School of Communication—a position she had held for about eight years—because she is a woman and she is a Wiccan. In doing so, she says, it discriminated against her on the basis of her sex and religion: a violation of Title VII of the Civil Rights Act of 1964.

Hoffmann’s lawsuit is a bit short on facts related to discrimination on the basis of sex. She says that when she was appointed dean of the school of communications, she was given a two-year contract when the other deans at the time—all of them men —were given three-year contracts. She also believes she received less compensation than they did. The complaint does not make clear whether these facts are enough to support a claim of sex discrimination.

Her religious discrimination claims, on the other hand, are bolstered by facts that, if true, may test how tolerant courts will be when it comes to religions like Wicca that are outside of the mainstream.

Hoffmann has been a practicing Wiccan for more than 20 years, according to the Daily Beast. But things went south when she emailed the VP of communications in the fall of 2011 and referenced the fact that she is Wiccan in the context of being asked to speak about Wicca on the student television station.

The student journalists “always want to talk to witches at Halloween,” Hoffmann said, according to the Buffalo News. She noted the school had known she was a Wiccan, but that “I just wanted to give the school a heads up.”

On May 7, 2012, Fischer asked her to sign a document vowing to uphold Catholic values. She claims that later, the new provost, Joe Zimmer, pressured her to resign as dean of the school of communications, allegedly after he was told to “solve the Pauline problem”; she was denied a promotion to provost (a position she says she was eminently qualified for); and the board, without providing Hoffmann a reason, asked her to resign.

According to her complaint, Fischer told Hoffmann that if she were Jewish, she would not have to sign the statement vowing to uphold Catholic values.

Sister Margaret Chaney, then the university’s president, also allegedly told her, “I took a big chance hiring you as a Wiccan.”

These two statements could prove crucial to Hoffmann’s case.

Title VII says, “It shall be an unlawful employment practice for an employer … to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

In a policy document, the Equal Employment Opportunity Commission (EEOC) has said that “[f]or purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” That means that Wicca’s adherents, even if they are few and far between, are entitled to the protections Title VII offers—and that includes not being singled out for unfair treatment. (It is unclear how many Wiccans there are in the United States, but a 2018 Pew Research poll puts the number of Wiccans or Pagans between 1 million and 1.5 million.)

But there are some exceptions to Title VII’s protections. For example, it does not apply to employers who have fewer than 15 employees. More relevant to Hoffmann’s case, Title VII does not apply to religious educational institutions.

Specifically, the statute does not apply to “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

In addition, Title VII specifically permits religious educational institutions to hire and employ people of a particular religion if that institution is owned, supported, controlled, or managed in whole or in substantial part by a particular religion or if the curriculum of that institution is directed toward the propagation of a particular religion.

It is likely that St. Bonaventure will argue that it is a religious educational institution and is therefore entitled to consider religion when it makes employment decisions. And that may be true, to a certain extent. According to EEOC policy documents, religious organizations are permitted to give employment preference to members of their own religion. Some courts have followed the EEOC’s lead in its compliance manual, which provides that “the exemption only applies to hiring and discharge, and does not apply to terms, conditions, or privileges of employment, such as wages or benefits.” But the judicial trend has been to interpret “employment” to cover the breadth of the relationship between the employer and employee, and not to limit it to hiring and firing decisions.

Had St. Bonaventure refused to hire Hoffmann in the first place because she is Wiccan, a court would likely rule that the university was within its right to do so. But St. Bonaventure did not do so. Indeed, many of Hoffmann’s colleagues and many of the students at St. Bonaventure are not Roman Catholic, according to Inside Higher Ed.

Nor did St. Bonaventure fire her because they became aware after hiring her that her religious beliefs did not align with the school’s Catholic beliefs. Rather, the school appears to have targeted her for discrimination specifically because she is Wiccan, not because she is non-Catholic, and a court may find that St. Bonaventure violated Title VII in doing so. The religious exemption may permit a Catholic university to require all of its employees to be Catholic, but as soon as a religious institution hires non-Catholic employees, that institution shouldn’t be permitted to pick and choose between religions.

In other words, if St. Bonaventure would not have targeted Hoffmann for discrimination if she were Jewish, then the university shouldn’t be permitted to target her because she is Wiccan. Though courts have sometimes unequally applied the law to different religions, they are generally not in the business of doing so.

And employers shouldn’t be either.

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