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Are Your Employees Religious Enough For The NLRB?


The NLRB is at the center of the most recent battle over religious freedom. At issue is the religious character of faculty at religious colleges and universities. Since the U.S. Supreme Court’s ruling in NLRB v. Catholic Bishop of Chicago, the board has been barred from regulating employees in religious educational institutions. However, in recent years, the board has tried to narrow the reach of the Catholic Bishop of Chicago case by arguing that it only applied to institutions of a “substantial religious character.” When colleges and universities responded that the Constitution barred the board from determining an institution’s religious character, the board instead focused on whether individual faculty members have a religious function.


In recent weeks, the NLRB has held that faculty members at two Catholic institutions—Seattle University and Manhattan College—were subject to the board’s jurisdiction because the faculty did not perform a specific role in creating or maintaining a religious educational environment. In the Manhattan College case, the board noted that the faculty did not serve as religious advisors, did not engage in religious training, were not responsible for propagating the faith, nor were they required to conform to the tenets of the faith. The only religious requirements placed on faculty members were to sign a statement that they had read the institution’s religious mission statement and agree to respect its culture.


While these institutions indicate that they will continue to fight these rulings, other religious institutions should take note that the NLRB is interested in expanding its jurisdiction in this area. Institutions wishing to remain outside the board’s jurisdiction should make sure that their employees are truly a part of their religious mission and not merely religious in name only.

Mark Scudder

Mark D. Scudder is an of counsel member of Barnes & Thornburg LLP's Labor and Employment Law Department in the Fort Wayne, Indiana, office. Mr. Scudder’s practice covers virtually all areas of labor and employment law, including litigation concerning discriminatory practices, worker’s compensation benefits, collective bargaining agreement administration, and grievance and arbitration proceedings. He has represented clients in state and federal courts at all stages of litigation, from pre-litigation counseling, alternative dispute resolution, trial and appeal.

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