McMahon v. World Vision Inc

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON — 8 — AT SEATTLE — 9 — 10 AUBRY MCMAHON, CASE NO. C21-0920JLR 11 Plaintiff, ORDER v. — 12 — WORLD VISION, INC., — 13 — Defendant. — 14 — 15 I. INTRODUCTION 16 Before the court are (1) Plaintiff Aubry McMahon’s renewed motion for partial 17 summary judgment, and (2) Defendant World Vision, Inc.’s (“World Vision”) renewed 18 motion for summary judgment. (Pl. 2d MSJ (Dkt. # 52); Def. 2d MSJ (Dkt. # 53); see 19 also Pl. Reply (Dkt. # 60); Def. Reply (Dkt. # 61).) Each party opposes the other’s 20 motion. (Pl. Resp (Dkt. # 56); Def. Resp. (Dkt. # 58).) The court has considered the 21 motions, the parties’ submissions in support of and in opposition to the motions, the 22 // 1 relevant portions of the record, and the applicable law. Being fully advised,1 the court 2 GRANTS Ms. McMahon’s motion for partial summary judgment and DENIES World 3 Vision’s motion for summary judgment. 4 II. BACKGROUND 5 World Vision is a Christian nonprofit organization that offered employment to Ms. 6 McMahon as a customer service representative, but later rescinded that job offer upon 7 learning of Ms. McMahon’s same-sex marriage. World Vision did so pursuant to a 8 policy that reflects its sincerely held religious belief that marriage is a Biblical covenant 9 between a man and a woman, but that facially discriminates on the basis of sex, sexual 10 orientation, and marital status. The instant motions address whether and on what basis 11 World Vision is shielded from liability under Title VII of the Civil Rights Act of 1964 12 (“Title VII”) and the Washington Law Against Discrimination (“WLAD”) for sex, sexual 13 orientation, and marital status discrimination under these circumstances. 14 As the parties agree, the facts here are largely undisputed and the issues are ripe 15 for summary judgment. (See Def. 2d MSJ at 3; Pl. Resp. at 2.) The court concludes that 16 none of World Vision’s remaining affirmative defenses shield it from liability under Title 17 VII and WLAD, and Ms. McMahon is entitled to judgment as a matter of law. Below, 18 the court discusses the relevant factual and procedural background before addressing the 19 merits. — 20 — — 21 — 1 World Vision has requested oral argument (see Def. 2d MSJ at 1), but the court has determined that oral argument would not be helpful to its disposition of the motions, see Local — 22 — Rules W.D. Wash. LCR 7(b)(4). 1 A. The Parties 2 Ms. McMahon is “an openly gay woman.” (Pl. 1st MSJ (Dkt. # 24) at 2; see also 3 4/11/23 Wolnowski Decl. (Dkt. # 25) ¶ 10, Ex. 9 (“McMahon Dep. Tr.”) at 85:21-86:4, 4 91:11-92:13.) She became engaged to her girlfriend in November 2019, and they married 5 in September 2020. (McMahon Dep. Tr. at 29:10-11.) Ms. McMahon became pregnant 6 around June 2020 via a sperm donor from a “cryobank.” (Id. at 35:1-6, 36:20-22.) The 7 couple’s child was born on March 6, 2021. (Id. at 43:9-12.) 8 World Vision is a nonprofit organization (Freiberg Decl. (Dkt. # 28) ¶ 53), “whose 9 mission is to follow our Lord and Savior Jesus Christ in working with the poor and 10 oppressed to promote human transformation, seek justice, and bear witness to the good 11 news of the Kingdom of God.” (Id. ¶ 31, Ex. MF-13 (“Mission Statement”).) Founded 12 in 1950 by Dr. Robert Pierce, World Vision declares itself to be a “Christian ministry 13 dedicated to sharing the gospel of Jesus Christ, primarily through humanitarian outreach 14 to children and families around the world who are poor and underserved.” (Freiberg 15 Decl. ¶ 18.) It “operates in many ways like a Christian church and implements its 16 programs through and as supported by local churches in the United States and around the 17 world.” (Id.) Under World Vision’s Articles of Incorporation, “[t]he primary, exclusive 18 and only purposes for which this corporation is organized are religious ones,” namely: 19 To perform the functions of the Christian church including, without limitation, the following functions[:] to conduct Christian religious and 20 missionary services, to disseminate, teach and preach the Gospel and teachings of Jesus Christ, to encourage and aid the growth, nu[r]ture and 21 spread of the Christian religion and to render Christian service, both material and spiritual to the sick, the aged, the homeless and the needy. — 22 — 1 (Id. ¶ 19, Ex. MF-09 at WV-000017-18.) The Articles of Incorporation also require 2 World Vision and its employees “[t]o continually and steadfastly uphold and maintain the 3 following statement of faith of this corporation”: 4 (a) We believe the Bible to be the inspired, the only infallible, authoritative Word of God; 5 (b) We believe that there is one God, eternally existent in three persons: Father, Son, and Holy Spirit; 6 (c) We believe in the deity of our Lord Jesus Christ, in His virgin birth, in His sinless life, in His miracles, in His vicarious and atoning death through 7 His shed blood, in His bodily resurrection, in His ascension to the right hand of the Father, and in His personal return in power and glory; 8 (d) We believe that for the salvation of lost and sinful man regeneration by the Holy Spirit is absolutely essential; 9 (e) We believe in the present ministry of the Holy Spirit by whose indwelling the Christian is enabled to live a godly life; 10 (f) We believe in the resurrection of both the saved and the lost; they that are saved unto the resurrection of life and they that are lost unto the 11 resurrection of damnation. We believe in the spiritual unity of believers in our Lord Jesus Christ. — 12 — (Id. at WV-000007-08; see also Freiberg Decl. ¶ 20 (providing links to World Vision’s — 13 — Statement of Faith and the Apostles’ Creed).) According to World Vision, “[t]he above — 14 — stated religious beliefs of World Vision reflect its ultimate foundation as a Christian — 15 — ministry. Everything else World Vision does or aspires to do is built on this foundation.” — 16 — (Freiberg Decl. ¶ 22.) — 17 — Today, all World Vision staff are responsible for “confessing they are committed — 18 — Christians,” “agreeing ‘wholeheartedly’ with World Vision’s core religious principles,” — 19 — “‘communicating [World Vision’s] Christian faith [and] witness,’ which is ‘integrated — 20 — [into] everything [it] does,’ ‘accurately and with integrity,’” and “participating ‘regularly’ — 21 — in ‘prayer activities, devotionals, and weekly chapel services.’” (Osborne Decl. (Dkt. — 22 — 1 # 29) ¶ 12 (citing Spencer v. World Vision, Inc., 633 F.3d 723, 738-40 (9th Cir. 2011) 2 (O’Scannlain, J., concurring)).) To that end, every World Vision staff member receives 3 an employee guidebook titled the “Orange Book: Living Out Our Values,” in order “to 4 help them better understand, comply with, and carry out World Vision’s mission, vision, 5 and core values.” (Freiberg Decl. ¶ 53; see id., Ex. MF-29 (“Orange Book”).) The 6 Orange Book makes clear that prayer, in particular, “plays a central role in World 7 Vision’s ministry.” (Osborne Decl. ¶ 46 (quoting Orange Book at WV-000718).) World 8 Vision provides prayer rooms, encourages employees to begin and end each work or 9 project meeting with prayer, and begins each fiscal year with an entire day dedicated to 10 prayer. (Id.) The Orange Book also instructs that “[e]ach World Vision team is expected 11 to spend one additional hour each week in team devotions,” which individual teams 12 arrange according to their weekly schedules. (Orange Book at WV-000718). And all 13 employees “are invited and expected” to attend a weekly “organization-wide chapel” 14 service, which is typically live-streamed from Federal Way or Washington, D.C. every 15 Wednesday. (Id.) 16 Additionally, central to World Vision’s core principles and policies are the phrase 17 “witness to Jesus Christ” and doctrines about being a faithful witness to, for, and about 18 Jesus Christ. (See Freiberg Decl. ¶¶ 30-31.) World Vision’s job postings require 19 “witnessing to Christ and ministering to others through life, deed, word and sign.” (Id. 20 ¶ 30 (first citing id., Ex. MF-10; then citing 4/11/23 Wolnowski Decl. ¶ 2, Ex. 1 (“Job 21 Posting”) at WV-000048).) World Vision believes that it and its staff’s “corporate and 22 individual behavior witnesses, reflects, and testifies about what we believe as a ministry 1 and as individual believers.” (Id. ¶ 37.) Accordingly, World Vision “seeks to honor God 2 by requiring all staff to ‘[f]ollow the living Christ, individually and corporately in faith 3 and conduct, publicly and privately, in accord with the teaching in His Word (the 4 Bible).’” (Id. ¶ 32, Ex. MF-14 at WV-000027; see also id. ¶ 33, Ex. MF-15 (“BECC 5 Policy”) at WV-000031-32 (requiring that staff “behavior [be] consistent with the 6 teachings of Scripture” and stating that because World Vision “seeks to be an 7 organization that is ‘Christian’ in every sense of the word,” “all staff represent [World 8 Vision] and, more importantly, the Gospel of Jesus Christ, in their work as well as in 9 their private lives”).) 10 Because “[i]t is impossible . . . to identify every form of behavior that we 11 understand the Bible defines as acceptable and unacceptable to God” (BECC Policy 12 Manual at WV-000031), World Vision provides Standards of Conduct (“SOC”) to 13 “clarify expectations and assist candidates/employees in deciding whether or not [World 14 Vision] is the right place for them to serve the Lord.” (Freiberg Decl. ¶ 40, Ex. MF-18 15 (“SOC”) at WV-000035.) In World Vision’s view, the Bible confines the “express[ion 16 of] sexuality solely within a faithful marriage between a man and a woman.” (Id. ¶ 41, 17 Ex. MF-19 at WV-004694 (stating that any sexual conduct outside this “Biblical 18 covenant” represents unacceptable “open, ongoing and unrepentant” sin); see also id. 19 ¶¶ 39-49 (discussing World Vision’s view of Biblical marriage).) Accordingly, the SOC 20 prohibits, among other things, “sexual conduct outside the Biblical covenant of marriage 21 between a man and a woman.” (SOC at WV-000036.) 22 // 1 To be eligible for employment at World Vision, an individual must, among other 2 things, be able and willing to affirm and comply with the World Vision Statement of 3 Faith and/or Apostles’ Creed, the Business Ethics and Christian Conduct Policy, the 4 Christian Commitment and Witness Policy, and the World Vision SOC. (See, e.g., 5 Freiberg Decl. ¶ 34, Ex. MF-16; 4/11/23 Wolnowski Decl. ¶ 13, Ex. 12 (“Talbot Dep. 6 Tr.”) at 40:2-5, 88:22-89:6.) 7 B. The Customer Service Representative Position at World Vision 8 In or around November or December 2020, Ms. McMahon saw a job posting for 9 the position of customer service representative with World Vision on the website 10 Indeed.com. (McMahon Dep. Tr. at 139:18-22, 148:5-25; 4/11/23 Wolnowski Decl. 11 ¶ 11, Ex. 10 (“3/10/23 Freiberg Dep. Tr.”) at 12:3-8.) The position was a “remote” one 12 during “[c]all center hours” between 6:00 AM to 6:00 P.M., with compensation ranging 13 from $13 to $15 per hour depending on location and cost of living “as well as a 14 comprehensive benefits package.” (Job Posting at WV-000048.) 15 According to the job description, a World Vision customer service representative 16 will “acquire and maintain donor relationships through basic inbound and outbound 17 calls” (id.)—placing calls to existing donors whose information World Vision maintains 18 in a database, and fielding calls from “potentially existing donors or [those who] may be 19 looking to donate” (3/10/23 Freiberg Dep. Tr. at 22:10-23). In doing so, customer service 20 representatives “serve as a liaison between donors and the general public as well as 21 provide basic levels of customer service for all special programs.” (Job Posting at WV22 000048.) The customer service representative will also “[h]elp carry out our Christian 1 organization’s mission, vision, and strategies” and “[p]ersonify the ministry of World 2 Vision by witnessing to Christ and ministering to others through life, deed, word and 3 sign.” (Id.) 4 In addition, the job posting provides that a customer service representative will: 5 1. Keep Christ central in our individual and corporate lives. Attend and participate in the leadership of devotions, weekly Chapel services, and 6 regular prayer. 7 2. Maintain reliable, regular attendance. Report to work on time and return from breaks and lunches on time. — 8 — 3. Under supervision, learn to answer inbound customer service calls and 9 make outbound calls, to current and potential donors in response to all media presentations and World Vision products and services. Answer incoming 10 calls using an Automated Call Distribution system utilizing a standard script for guidance. Recognize and respond to up-sell opportunities and actively 11 cross-sell other [World Vision] programs when appropriate. 12 4. Through training and active participation, gain the skills necessary to assess callers’ needs and input information accurately and efficiently using 13 data entry and ten-key skills. 14 5. Achieve and maintain an acceptable level of individual statistics to accomplish Call Center business goals. — 15 — 6. Develop skills to utilize technology for maintaining and updating donor 16 information as appropriate. 17 7. Accepts [sic] constructive feedback and welcomes [sic] instruction and direction. — 18 — 8. Under supervision, research and effectively respond to inquiries utilizing 19 a variety of resource materials and methods. 20 9. Learn and effectively communicate World Vision’s involvement in ministries and projects around the world. — 21 — 10. Work collaboratively with team members. — 22 — 1 11. Be sensitive to Donor’s [sic] needs and pray with them when appropriate. 2 12. Perform other duties as assigned. 3 13. Keep informed of organizational announcements, activities and changes via regular reading of the WVUS Intranet and other corporate 4 communication tools. 5 (Id. at WV-000049.) Candidates for the customer service representative position are not 6 required to have any sort of formal religious education or training. (3/10/23 Freiberg 7 Dep. Tr. at 13:13-20.) Rather, the job posting sought candidates with the following 8 qualifications: 9 • High school graduate/GED or equivalent. Basic routine work experience • Prefer a minimum of 1 year previous customer service/sales work — 10 — experience • Must have access to a reliable, high speed internet connection — 11 — • The ability to multi-task in a fast pace [sic] environment 12 • Must be able to train and work 40 hours a week • Have strong technical skills with all Microsoft Office Suite — 13 — • The ability to type 20 wpm or more 14 • Enjoys making a difference in the world! • Must be available to start training on February 1st — 15 — (Job Posting at WV-000050.) — 16 — According to World Vision, customer service representatives serve as the “Voice, — 17 — Face, and Heart” of the organization as they “interact all day with the ministry’s donors, — 18 — its lifeblood.” (Osborne Decl. ¶ 19, Ex. SO-07 (“DCS Policies”) at WV-000425; id. — 19 — ¶ 23 .) Customer service representatives play a crucial role in fundraising, which World — 20 — Vision views as “a form of ministry in itself.” (Id. ¶ 43 (citing id., Ex. SO-17 (“Ministry — 21 — of Fundraising”) at WV-001363 (“Fund-raising isn’t merely a means to make ministry — 22 — 1 possible. Done right, fund-raising is ministry.”)).) Indeed, as reflected in the job posting, 2 customer service representatives are expected to “pray[] for and with the persons with 3 whom they talk” “when appropriate.” (Id. ¶ 14; Job Posting at WV-000049.) This is 4 because spiritual “[t]ransformation of donors is just as vital to World Vision as that of the 5 children they sponsor.” (Osborne Decl. ¶ 23 (citing id., Ex. SO-10 (“Why Focus on 6 Donor Transformation?”)).) World Vision customer service representatives fielded more 7 than 15,000 prayer requests during the calendar year 2020, praying for diverse needs 8 ranging from “a mother’s biopsy” to “a recent widow’s troubled daughter” to “a family 9 dairy farm’s fate.” (Id. ¶ 38 (citing id. ¶ 37, Ex. SO-15).) 10 Praying with donors is not a requirement of the customer service representative 11 role, and the failure to do so does not result in discipline or termination. (3/10/23 12 Freiberg Dep. Tr. at 24:2-11, 30:14-31:2.) A guidance document provided to customer 13 service representatives offers “talking points that point toward God’s love, scripture, and 14 the offer for prayer” in the event of a call with someone in crisis, and the document 15 encourages customer service representatives to “offer to pray with the donor over the 16 phone” “[i]f comfortable.” (4/11/23 Wolnowski Decl. ¶ 15, Ex. 14 (“Guidance 17 Document”) at WV-006113-14.) In order to encourage such prayer, managers give 18 “shout outs” to customer service representatives who leave lasting impressions on donors 19 through prayer. (Osborne Decl. ¶ 40 (citing id., Ex. SO-16 (“Shout Outs”) at 20 WV-003103 (“I had to share this amazing shout out from a donor for [unnamed customer 21 service representative]! [Donor] was simply overwhelmed when he shared with me that 22 [unnamed customer service representative] prayed for him and showed him the love of 1 the Lord on their phone call amidst his own personal trials . . . . Thank YOU, [unnamed 2 customer service representative] for ministering to our donors, and BEING the light.”)).) 3 Customer service representatives also get the opportunity to lead team devotions 4 and World Vision’s weekly organization-wide chapel services. (Id. ¶¶ 25-29.) The 5 chapel services last up to an hour and have consisted of Bible reading, customer service 6 representative messages, praise and worship time, testimonials, and prayer. (Id. ¶¶ 25, 28 7 (citing id. ¶ Ex. SO-13).) Leading chapel is not a requirement of the customer service 8 representative position and instead occurs based on individual “interest and desire to 9 lead.” (4/11/23 Wolnowski Decl. ¶ 14, Ex. 13 (“2/16/23 Freiberg Dep. Tr.”) at 10 22:20-23.) Leading team devotions, on the other hand, is a “part of every [World Vision] 11 job description” and thus is equally expected of customer service representatives.2 12 (Freiberg Decl. ¶ 55, Ex. MF-31 at WV-002813 (“Prayer Materials”).) — 13 — — 14 — 2 The record is not a picture of clarity regarding the extent to which World Vision requires all customer service representatives to lead team devotions. When asked about this — 15 — topic in a deposition on February 16, 2023, World Vision’s Rule 30(b)(6) designee Melanie Freiberg testified that World Vision expects only that customer service representatives — 16 — “participate in devotions” and leading them is “not [] a require[ment].” (2/16/23 Freiberg Dep. Tr. at 22:11-16, 25:16-17.) But in a later deposition on March 10, 2023, Ms. Freiberg 17 contradicted her prior testimony by stating that “every [customer service representative] or trainee is required to attend devotions and to ultimately lead devotions.” (3/10/23 Freiberg Dep. 18 Tr. at 43:18-20.) As Ms. McMahon points out (Pl. 2d MSJ at 12-13), one cannot create a dispute of fact sufficient to defeat summary judgment “merely by contradicting his or her own sworn 19 deposition testimony” with later sworn testimony. Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002, 1008 (9th Cir. 1998). Yet, World Vision’s written “Devotion Guidelines” 20 expressly state that leadership of devotions is “part of every [World Vision] job description.” (Prayer Materials at WV-002813; see also Job Posting at WV-000049 (noting that customer service representatives will “[a]ttend and participate in the leadership of devotions”).) Ms. — 21 — McMahon does not dispute that “‘leadership of devotions’ is ‘a part of every [World Vision] job description.’” (Pl. 2d MSJ at 13 (quoting Prayer Materials at WV-002813).) Accordingly, the — 22 — court will assume for purposes of these motions that, to the extent customer service 1 C. World Vision Extends and Rescinds Ms. McMahon’s Offer of Employment 2 World Vision’s “applicant tracking system” indicates that Ms. McMahon 3 submitted her job application materials for the customer service representative position 4 on or about November 25, 2020. (4/11/23 Wolnowski Decl. ¶ 3, Ex. 2; McMahon Dep. 5 Tr. at 186:5-24; 4/11/23 Wolnowski Decl. ¶ 12, Ex. 11 (“Miolla Dep. Tr.”) at 6 15:14-16:4.) On December 4, 2020, Ms. McMahon conducted a phone screening 7 interview with Catherine Miolla (Wolnowski Decl. ¶ 6, Ex. 5 (“Phone Screener”); Miolla 8 Dep. Tr. at 19:20-20:11), a talent acquisition partner at World Vision (Miolla Dep. Tr. at 9 11:23-12:5). In that interview, Ms. Miolla asked Ms. McMahon questions about her 10 background and interest in World Vision and her comfort level with job “requirement[s]” 11 like “making inbound and outbound calls” and “upselling” World Vision programs. (Id. 12 at WV-000067-68.) Ms. Miolla also asked questions about Ms. McMahon’s personal 13 faith and willingness to comply with World Vision’s SOC (id. at WV-00068-69), though 14 she did not mention that Ms. McMahon might be expected to pray with donors if hired as 15 a customer service representative (see generally id. See also Miolla Dep. Tr. at 16 20:17-21:9, 23:20-24:13). 17 Ms. McMahon advanced in the interview process and Ms. Miolla extended a 18 verbal offer of employment on January 4, 2021. (Id. at 22:4-10, 46:6-47:6; 112:10-14.) 19 The following day, Ms. Miolla sent a formal written offer letter of employment to Ms. 20 McMahon. (4/11/23 Wolnowski Decl. ¶ 4, Ex. 3 (“Job Offer”); Miolla Dep. Tr. at 47:2421 representatives are required to lead team devotions, the same is required of all other World — 22 — Vision employees. 1 48:6; 48:22-49:3.) In relevant part, the letter stated: “On behalf of World Vision, Inc., I 2 am pleased to provide you with this letter as written confirmation of our verbal offer for 3 the full-time position of Donor/Customer Service Representative Trainee (DSR Trainee) 4 commencing on 2/1/2021.” (Job Offer.) 5 The letter also stated that consideration for employment as a customer service 6 representative was dependent upon Ms. McMahon’s successful completion of a 7 nine-to-eleven-week training and evaluation program. (Id.) Among other things, that 8 program typically includes training surrounding World Vision as a religious organization 9 founded upon “the Bible and Scripture”—“about who we are and who we are in 10 Christ”—as well as how to pray with donors, attending chapel, and leading and 11 participating in devotions. (3/10/23 Freiberg Dep. Tr. at 15:7-16.) Successful trainees 12 transition into the customer service representative role at the conclusion of the program, 13 though World Vision does not consider this process to be “a religious commissioning.” 14 (Id. at 15:19-16:3.) 15 Ms. McMahon, however, never entered the training program or commenced her 16 employment with World Vision. The same day World Vision sent Ms. McMahon written 17 confirmation of her job offer, Ms. McMahon sent an email to Ms. Miolla, which read: 18 Hey there, I just have a quick question! My wife and I are expecting our first baby in March and I wanted to see if I would qualify for any time off since 19 I’ll be a new employee? I will be the one having the baby so I just wanted to check to see if any time would be allowed off. If not, no worries, thanks 20 so much! 21 (Freiberg Decl. ¶ 9, Ex. MF-4 (“Post-Offer Emails”) at WV-000080.) After receiving 22 Ms. McMahon’s email, Ms. Miolla decided to bring the email to the attention of Melanie 1 Freiberg, a senior director of talent management at World Vison. (Id. ¶ 10.) Shortly 2 thereafter, Christine Talbot—who, at the time, held the position of senior vice president 3 of human resources at World Vision (Talbot Dep. Tr. at 11:16-21)—became aware of 4 Ms. McMahon’s email (id. at 19:22-20:6). 5 According to Ms. Talbot and Ms. Freiberg, the email “indicated potential 6 noncompliance with World Vision’s Standards of Conduct and related policies 7 surrounding World Vision’s deeply held religious conviction that sexual conduct should 8 not be outside of marriage and that marriage is a Biblical covenant between a man and a 9 woman.” (Freiberg Decl. ¶ 10; Talbot Dep. Tr. at 21:8-25.3) In her deposition, Ms. 10 Talbot clarified that in Ms. McMahon’s January 5, 2021 email, Ms. McMahon 11 “self-identifies herself being married to another woman. And [World Vision’s] standards 12 of conduct require . . .to be eligible for employment . . . that a job applicant or a job 13 offeree affirm their ability to live according to [World Vision’s] standards of conduct 14 which specifically names marriage to be a biblical covenant between a man and a 15 woman.” (Talbot Dep. Tr. at 21:18-25; see also id. at 40:2-6, 47:3-12 (“If an applicant is 16 unable or unwilling to affirm and comply with that standard, they’re not eligible for 17 employment.”).) 18 After receiving Ms. McMahon’s January 5, 2021 email, “World Vision engaged in 19 internal discussions about the application of its Biblical marriage policy, and the — 20 — 3 Additionally, according to Ms. Freiberg, Ms. McMahon’s January 5, 2021 email — 21 — “conflicted with her previous representations that she could and would comply with this standard of conduct about marriage and sexual conduct.” (Freiberg Decl. ¶ 11; see Phone Screener at — 22 — WV-000067-70 (notes regarding Ms. McMahon’s initial phone screening interview).) 1 Scriptural truths on which it is based, to Ms. McMahon’s situation.” (Freiberg Decl. 2 ¶ 50.) Ms. Freiberg, Ms. Talbot, and other managers at World Vision were involved in 3 the discussions. (See id.; 2/16/23 Freiberg Dep. Tr. at 74:23-76:22.) After these 4 discussions, Ms. Talbot decided that Ms. McMahon’s offer would be rescinded because 5 of Ms. McMahon’s “inability” “to meet one of the fundamental requirements of 6 employment with [World Vision], which would be affirming and complying with the 7 standards of conduct which were described in the interview process”; specifically, Ms. 8 McMahon’s inability to comply with the SOC prohibiting sexual conduct outside the 9 Biblical covenant of marriage between a man and a woman. (Talbot Dep. Tr. at 10 58:12-16; see also id. at 29:6-9, 46:17-20, 48:18-19, 60:16-20, 65:18-66:10, 67:7-17; 11 2/16/23 Freiberg Dep. Tr. at 103:12-21, 105:17-106:5; Freiberg Decl. ¶¶ 9-13, 48-51 12 (discussing the decision to rescind Ms. McMahon’s offer and why her conduct made her 13 unsuitable for the role); SOC at WV-000036.) On January 8, 2021, “after several 14 attempts by World Vision to discuss this matter further with Ms. McMahon,” World 15 Vision informed Ms. McMahon that it was rescinding the job offer.4 (Freiberg Decl. 16 ¶¶ 12-13; Post-Offer Emails at P-0080-81.) 17 // — 18 — — 19 — 4 In a call later that day, Ms. McMahon asked if the offer was being rescinded because 20 she is in a same-sex marriage. (2/16/23 Freiberg Dep. Tr. at 105:17-106:5; see also Freiberg Decl. ¶ 13, Ex. MF-08 (recording of excerpt from call).) Ms. Freiberg responded that the offer was being rescinded “because . . . the standards of conduct . . . are to not have any — 21 — sexual . . . conduct outside of marriage, and marriage is defined as being between a man and a woman. So that’s—that’s the behavior that all employees have to comply with.” (2/16/23 — 22 — Freiberg Dep. Tr. at 105:17-106:5; see also Freiberg Decl., Ex. MF-08.) 1 D. Procedural History 2 In July 2021, Ms. McMahon filed the instant lawsuit, claiming that World Vision 3 unlawfully discriminated against her in violation of Title VII, 42 U.S.C. § 2000e, et seq., 4 and WLAD, RCW 49.60, et seq. (See Compl. (Dkt. # 1) ¶¶ 6.1-7.3.) On April 11, 2023, 5 the parties filed cross-motions for summary judgment. (See generally Pl. 1st MSJ; Def. 6 1st MSJ (Dkt. # 26).) On June 12, 2023, the court granted World Vision’s motion for 7 summary judgment and denied Ms. McMahon’s motion for partial summary judgment, 8 concluding that (1) the theological nature of this dispute did not deprive the court of 9 subject matter jurisdiction, but (2) the Church Autonomy Doctrine, one of numerous 10 affirmative defenses raised in World Vision’s motion, barred Ms. McMahon’s claims for 11 sex, sexual orientation, and marital status discrimination under Title VII and WLAD. 12 (6/12/23 Order (Dkt. # 38) at 13-26.) In particular, the court applied a burden-shifting 13 framework to Ms. McMahon’s claims and concluded “that ‘the only way for the jury to 14 find pretext would be to question [World Vision’s] explanation of religious doctrine.’” 15 (Id. at 24 (quoting Butler v. St. Stanislaus Kostka Cath. Acad., 609 F. Supp. 3d 184 , 16 203-04 (E.D.N.Y. 2022)).) Accordingly, the court determined that it could not resolve 17 Ms. McMahon’s claims based on neutral principles of law and, as a result, “the Church 18 Autonomy Doctrine foreclose[d] judicial inquiry into World Vision’s religiously 19 motivated personnel decision.” (Id. at 25.) The court therefore entered judgment in 20 World Vision’s favor. (Judgment (Dkt. # 39) (vacated)). 21 // 22 // 1 Ms. McMahon moved for reconsideration, arguing the court manifestly erred in 2 concluding that “the Church Autonomy Doctrine bars the claims of a non-ministerial 3 employee who was terminated pursuant to a hiring policy that facially discriminates on 4 the basis of sex, sexual orientation, and marital status.” (Pl. Mot. for Recon. (Dkt. # 40) 5 at 1.) Specifically, Ms. McMahon urged “that the court erred by analyzing this case, 6 which involves an adverse action taken pursuant to a facially discriminatory employment 7 policy, as a pretext case akin to Butler v. St. Stanislaus Kostka Catholic Academy, 609 F. 8 Supp. 3d 184 (E.D.N.Y. 2022) and invoking the Church Autonomy Doctrine in light of 9 that pretext analysis.” (7/24/23 Order (Dkt. # 44) at 4-5 (citing 7/12/23 Reply (Dkt. # 43) 10 at 2-4.)5 11 “With the benefit of additional briefing and further explanation by the parties,” the 12 court reversed course and granted Ms. McMahon’s motion. (7/24/23 Order at 5, 11.) On 13 reconsideration, the court agreed that Ms. McMahon suffered an adverse employment 14 action based on a facially discriminatory employer policy—which constitutes per se 15 intentional discrimination under controlling precedent—and thus, Ms. McMahon was not 16 required to demonstrate pretext under a burden-shifting framework. (Id. at 7-10.) And 17 because “the court need not ‘question the reasonableness, validity or truth of’ World 18 Vision’s religious beliefs or doctrines to conclude that World Vision’s rescission of Ms. — 19 — — 20 — 5 Neither party sought reconsideration of the court’s conclusion with respect to subject 21 matter jurisdiction. (See generally Pl. Mot. for Recon.; 8/14/23 Order at 3; see also 6/12/23 Order at 13-14 (concluding that “the religious nature of this dispute does not deprive the court of subject matter jurisdiction over this action”).) That portion of the court’s June 12, 2023 order remains in — 22 — effect. 1 McMahon’s job offer pursuant to its Biblical marriage SOC . . . constitutes unlawful, sex, 2 sexual orientation, and marital status discrimination,” “Ms. McMahon can establish 3 unlawful discrimination using neutral principles of law,” and “the Church Autonomy 4 Doctrine does not preclude review of her claims.” (Id. at 10-11.) On July 23, 2023, the 5 court vacated the portion of its June 12, 2023 order concerning the Church Autonomy 6 Doctrine, vacated the final judgment, and directed the parties to propose a briefing 7 schedule for renewed cross-motions for summary judgment concerning World Vision’s 8 remaining affirmative defenses. (Id. at 11-12.) 9 World Vision moved for reconsideration and clarification of the court’s July 23, 10 2023 order. (Def. Mot. for Recon. (Dkt. # 46).) On August 14, 2023, the court denied 11 reconsideration and clarified that World Vision would not be permitted to reargue its lack 12 of subject matter jurisdiction and Church Autonomy Doctrine affirmative defenses in the 13 renewed motions for summary judgment. (8/14/23 Order (Dkt. # 49) at 4.) The court 14 directed that the parties’ renewed motions “may address World Vision’s remaining 15 affirmative defenses and the impact, if any, of the Supreme Court’s recent decision in 303 16 Creative LLC v. Elenis, [600] U.S. [570], 143 S. Ct. 2298 (2023) on those defenses.” (Id. 17 at 5 (footnote omitted); see also id. at 5 n.3 (“The remaining affirmative defenses are 18 World Vision’s religious organization exemption, ministerial exception, Free Exercise 19 Clause, Expressive Association, and bona fide occupational qualification defenses.”).) 20 Now before the court are the parties’ renewed cross-motions for summary 21 judgment. (See generally Pl. 2d MSJ; Def. 2d MSJ.) Below, the court sets out the 22 // 1 relevant legal standard before turning to the parties’ arguments in support of their 2 respective motions. 3 III. ANALYSIS 4 Title VII makes it unlawful for an employer “to fail or refuse to hire or to 5 discharge any individual, or otherwise to discriminate against an individual with respect 6 to his compensation, terms, conditions, or privileges of employment, because of such 7 individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1); see 8 also Bostock v. Clayton Cnty., 590 U.S. __ , 140 S. Ct. 1731, 1739-47, 1754 (2020) 9 (concluding that firing a person based on their sexual orientation or transgender status is 10 discrimination “because of sex”). Similarly, in relevant part, WLAD makes it unlawful 11 for an employer to refuse to hire or to discharge any person, or otherwise to discriminate 12 against a person with respect to the terms and conditions of employment, because of 13 “age, sex, marital status, [or] sexual orientation.” RCW 49.60.180. Here, Ms. McMahon 14 brings claims for sex and sexual orientation discrimination under Title VII and WLAD, 15 as well as marital status discrimination under WLAD. (See Compl. ¶¶ 6.1-7.3.) 16 World Vision moves for summary judgment in its favor on each of Ms. 17 McMahon’s claims. (See generally Def. 2d MSJ.) It argues that the court should dismiss 18 Ms. McMahon’s claims under Title VII and WLAD because they are barred by: (1) Title 19 VII and WLAD’s religious organization exemptions; (2) the ministerial exception; 20 (3) Title VII and WLAD’s bona fide occupational qualification (“BFOQ”) defenses; (4) 21 the Free Exercise Clause; (5) the freedom of expressive association; and (6) the Supreme 22 Court’s recent decision in 303 Creative LLC v. Elenis, 600 U.S. 570 (2023). (Id. at 3, 1 26.) Ms. McMahon opposes World Vision’s motion (see generally Pl. Resp.) and 2 cross-moves for partial summary judgment in her own favor on her Title VII and WLAD 3 claims with respect to the issue of liability (see generally Pl. 2d MSJ). Below, the court 4 sets out the relevant legal standard before turning to the parties’ arguments in favor of 5 their respective motions. 6 A. Summary Judgment Legal Standard 7 Summary judgment is appropriate if the evidence viewed in the light most 8 favorable to the non-moving party shows “that there is no genuine dispute as to any 9 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 10 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is “material” if it 11 might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 248 12 (1986). A factual dispute is “‘genuine’ only if there is sufficient evidence for a 13 reasonable fact finder to find for the non-moving party.” Far Out Prods., Inc. v. Oskar, — 14 — 247 F.3d 986 , 992 (9th Cir. 2001) (citing Anderson, 477 U.S. at 248-49 ). 15 The moving party bears the initial burden of showing there is no genuine dispute 16 of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 17 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 18 show the absence of such a dispute in two ways: (1) by producing evidence negating an 19 essential element of the nonmoving party’s case, or (2) by showing that the nonmoving 20 party lacks evidence of an essential element of its claim or defense. Nissan Fire & 21 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 , 1106 (9th Cir. 2000). If the moving party 22 meets its burden of production, the burden then shifts to the nonmoving party to identify 1 specific facts from which a factfinder could reasonably find in the nonmoving party’s 2 favor. Celotex, 477 U.S. at 324 ; Anderson, 477 U.S. at 250 . Where cross motions are at 3 issue, the court must “evaluate each motion separately, giving the nonmoving party in 4 each instance the benefit of all reasonable inferences.” ACLU of Nev. v. City of Las 5 Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006); Tulalip Tribes of Wash. v. Washington, 783 6 F.3d 1151, 1156 (9th Cir. 2015) (“[W]hen simultaneous cross-motions for summary 7 judgment on the same claim are before the court, the court must consider the appropriate 8 evidentiary material identified and submitted in support of both motions, and in 9 opposition to both motions, before ruling on each of them.” (quoting Fair Hous. Council 10 of Riverside Cnty., Inc. v. Riverside Two, 249 F.3d 1132 , 1134 (9th Cir. 2001))). 11 B. Religious Organization Exemption 12 Both Title VII and WLAD contain religious organization exemptions. While the 13 parties do not dispute that World Vision qualifies as a religious organization under Title 14 VII and WLAD, they dispute whether the exemptions apply to this case. The court 15 addresses each exemption in turn, concluding that neither one bars Ms. McMahon’s 16 claims. 17 1. Title VII 18 “‘[I]n recognition of the constitutionally-protected interest of religious 19 organizations in making religiously-motivated employment decisions’ and to prevent 20 excessive government entanglement, Congress declared that religious organizations are 21 exempt from Title VII’s prohibition against discrimination in employment on the basis of 22 religion.” Spencer v. World Vision, Inc., 570 F. Supp. 2d 1279, 1283 (W.D. Wash. 1 2008), aff’d, 619 F.3d 1109 (9th Cir. 2010), and aff’d, 633 F.3d 723 (9th Cir. 2011) 2 (quoting Hall v. Baptist Mem’l. Health Care Corp., 215 F.3d 618, 623 (6th Cir. 2000)). 3 The exemption provides that Title VII does not apply “to a religious corporation, 4 association, educational institution, or society with respect to the employment of 5 individuals of a particular religion to perform work connected with the carrying on by 6 such corporation, association, educational institution, or society of its activities.” 42 7 U.S.C. § 2000e–1(a); see, e.g., Spencer, 633 F.3d at 724-25 (per curiam) (holding that 8 World Vision was entitled to Title VII’s religious employer exemption where World 9 Vision terminated plaintiffs’ employment “on account of their religious beliefs”). 10 It is well-established in the Ninth Circuit that Title VII’s religious employer 11 exemption offers qualifying employers immunity only from religious discrimination 12 claims. “While the language of [the religious employer exemption] makes clear that 13 religious institutions may base relevant hiring decisions upon religious preferences, 14 ‘religious employers are not immune from liability [under Title VII] for discrimination 15 based on . . . sex’” and other protected grounds. EEOC v. Fremont Christian Sch., 781 16 F.2d 1362 , 1366 (9th Cir. 1986) (quoting EEOC v. Pac. Press Publ’g Ass’n, 676 F.2d 17 1272, 1276 (9th Cir. 1982), abrogated on other grounds as recognized by Am. Friends 18 Serv. Comm. Corp. v. Thornburgh, 951 F.2d 957 , 960 (9th Cir. 1991)) (holding Title 19 VII’s religious employer exemption did not immunize religious school from sex 20 discrimination claim where the school denied health insurance benefits to women based 21 on its religious belief that only men can be the head of the household). This court has 22 already determined that “World Vision rescinded Ms. McMahon’s job offer pursuant to a 1 facially discriminatory policy” and “Ms. McMahon was treated differently because of her 2 sex, sexual orientation, and marital status.” (7/24/23 Order at 6-7.) Thus, World Vision 3 cannot invoke the religious employer exemption to defend against Ms. McMahon’s Title 4 VII claims because those claims are premised on sex and sexual orientation 5 discrimination—not religious discrimination. Fremont Christian Sch., 781 F.2d at 1366. 6 World Vision argues that a plain language analysis of the religious employer 7 exemption yields a different result. Relying on Garcia v. Salvation Army, 918 F.3d 997 8 (9th Cir. 2019), World Vision interprets the statutory text to “exempt[] qualifying entities 9 ‘from the entire subchapter of Title VII,’” irrespective of the type of discrimination at 10 issue. (Def. 2d MSJ at 27 (quoting Garcia, 918 F.3d at 1004 )); see also 42 U.S.C. 11 § 2000e-1(a) (“This subchapter shall not apply . . . .”). According to World Vision, 12 “none of Title VII applies to a qualifying entity’s qualifying decisions,” and it is 13 undisputed here that World Vision is a religious entity entitled to the exemption. (Def. 14 2d MSJ at 27.) This argument misapprehends Garcia, which addressed whether the 15 exemption “reaches beyond hiring and firing”—not whether it reaches beyond religious 16 discrimination claims. Garcia, 418 F.3d at 1004. Garcia states that “the [religious 17 organization exemption]’s text reaches beyond hiring and firing. Congress ‘painted with 18 a broader brush, exempting religious organizations from the entire subchapter of Title 19 VII with respect to the employment of persons of a particular religion.’” Id. (quoting 20 Kennedy v. St. Joseph’s Ministries, Inc., 657 F.3d 189, 194 (4th Cir. 2011)) (holding the 21 religious employer exemption barred the plaintiff’s retaliation and hostile work 22 environment claims where those claims were premised on religious discrimination). 1 Garcia did not expand the religious employer exemption to bar claims premised on other 2 forms of discrimination beyond religious discrimination as World Vision urges. To the 3 contrary, Garcia keeps with Ninth Circuit precedent in confirming that the religious 4 employer exemption “permits religious organizations to discriminate based on religion.” 5 Id. at 1006. 6 Because Ms. McMahon’s claims do not concern religious discrimination and she 7 instead has established unlawful discrimination on the basis of sex and sexual orientation, 8 World Vision is not shielded by Title VII’s religious employer exemption. Fremont 9 Christian Sch., 781 F.2d at 1366. Ms. McMahon is entitled to summary judgment on this 10 affirmative defense. 11 2. WLAD 12 WLAD exempts “religious or sectarian organization[s] not organized for private 13 profit” from its scope in certain circumstances. RCW 49.60.040(11). Although WLAD’s 14 religious organization exemption is not limited to religious discrimination claims, it 15 applies only to discrimination claims brought by employees who fall under the First 16 Amendment’s ministerial exception. See Woods v. Seattle’s Union Gospel Mission, 481 17 P.3d 1060 , 1067-70 (Wash. 2021). As discussed below, the ministerial exception is not 18 applicable in this case, and thus, WLAD’s religious organization exemption does not 19 apply. Ms. McMahon is entitled to summary judgment on this affirmative defense. 20 // 21 // 22 // 1 C. Ministerial Exception 2 World Vision argues its decision to rescind Ms. McMahon’s job offer is protected 3 by the First Amendment’s ministerial exception. For the reasons discussed below, the 4 court concludes that World Vision is not entitled to the exception in this case. 5 The First Amendment provides, in relevant part, that “Congress shall make no law 6 respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. 7 Const. amend. I. “Among other things, the Religion Clauses protect the right of churches 8 and other religious institutions to decide matters of ‘faith and doctrine’ without 9 government intrusion.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. __ , — 10 — 140 S. Ct. 2049, 2060 (2020) (internal quotation marks omitted) (quoting Hosanna-Tabor 11 Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 186 (2012)). Rooted in 12 this principle, the ministerial exception ensures that courts “stay out of employment 13 disputes involving those holding certain important positions with churches and other 14 religious institutions.” Id. To that end, the exception bars “employment discrimination 15 [claims] brought on behalf of a minister, challenging her church’s decision to fire her.” 16 Hosanna-Tabor, 565 U.S. at 195 -96 & n.4 (noting that the exception is an affirmative 17 defense to such claims). 18 The Supreme Court first recognized the ministerial exception in Hosanna-Tabor. 19 The Court declined to apply a “rigid formula” to the determination of whether a particular 20 employee qualifies as a minister subject to the exception. Id. at 190 . That determination 21 must be made on a case-by-case basis, guided by relevant factors including “the formal 22 title, . . . the substance reflected in that title, [the employee’s] own use of that title, and 1 the important religious functions . . . performed for the Church.” Id. at 190, 192 . In 2 addition, the amount of time an employee spends on religious or secular activities is 3 relevant, but not determinative, in assessing that employee’s status. Id. at 194 . The 4 teacher in Hosanna-Tabor qualified as a minister even though “her religious duties 5 consumed only 45 minutes of each work-day” where she held the title “Minister of 6 Religion, Commissioned” at a Lutheran grade school, completed a significant degree of 7 religious training and a formal process of commissioning in order to attain her position, 8 openly relayed to others her role in ministry, and her duties included conveying the 9 Church’s message and mission “to the next generation” through frequent religious 10 teaching, prayer, and devotional exercises with students. Id. at 191-93 . 11 The Supreme Court revisited the ministerial exception in Our Lady of Guadalupe 12 School v. Morrissey-Berru, 591 U.S. __ , 140 S. Ct. 2049 (2020). In that case, the Court 13 clarified that the four factors relevant to its analysis in Hosanna-Tabor “may be 14 important” but are not “necessary requirement[s]” in all other cases. Id. at 2063-64 . 15 Courts are “to take all relevant circumstances into account and to determine whether each 16 particular position implicate[s] the fundamental purpose of the exception.” Id. at 2067 ; 17 see also id. at 2066 (stating that an employer’s “definition and explanation” of the 18 employee’s role and the employee’s “role [in] the life of the religion” are important 19 considerations). “What matters, at bottom, is what an employee does.” Id. at 2064 . 20 Although the teachers in Our Lady of Guadalupe “were not given the title of ‘minister’ 21 and ha[d] less religious training” than the teacher in Hosanna-Tabor, “their core 22 responsibilities as teachers of religion were essentially the same.” Id. at 2055 , 2066 1 (“Educating and forming students in the Catholic faith lay at the core of the mission of 2 the schools where they taught . . . .”). Because the teachers performed “vital religious 3 duties” in that “they were the members of the school staff who were entrusted most 4 directly with the responsibility of educating their students in the faith,” and “both their 5 schools expressly saw them as playing a vital part in carrying out the mission of the 6 church,” the ministerial exception barred their claims. Id. at 2066 . 7 World Vision bears the ultimate burden to prove that Ms. McMahon would have 8 been a minister, e.g., Fitzgerald v. Roncalli High School, Inc., 73 F.4th 529, 531 (7th Cir. 9 2023), but it fails to carry that burden. The court begins with the Hosanna-Tabor factors, 10 keeping in mind that no single factor is necessary or dispositive. 11 First, the job posting title “Customer Service Representative” is secular. (Job 12 Posting at WV-000048.) The same is true of the title “Donor/Customer Service 13 Representative Trainee,” which appears in Ms. McMahon’s offer letter. (Job Offer at 14 WV-000078.) This factor weighs in Ms. McMahon’s favor. 15 Second, Ms. McMahon’s title lacks ministerial or religious substance. In 16 Hosanna-Tabor, the Supreme Court found it meaningful that the plaintiff completed “a 17 significant degree of religious training and a formal process of commissioning” in order 18 to attain her title “Minister of Religion, Commissioned.” 565 U.S. at 191 . Here, Ms. 19 McMahon would have had to complete a nine-to-eleven-week training and evaluation 20 program in order to transition from trainee to customer service representative. (Job Offer 21 at WV-000078.) The program would have had some religious components, including 22 training surrounding World Vision as a religious organization founded upon “the Bible 1 and Scripture”—“training about who we are and who we are in Christ.” (3/10/23 2 Freiberg Dep. Tr. at 15:7-11.) It would have also included “support for how to pray, how 3 to pray with donors, attending chapel, [and] leading and participating in devotions.” (Id. 4 at 15:11-13.) But nothing in the record suggests that Ms. McMahon’s training would 5 have risen to the level of doctrinal instruction present in Hosanna-Tabor. See 6 Hosanna-Tabor, 565 U.S. at 191 (noting that the employee’s “religious training” 7 comprised eight college-level courses including biblical interpretation, church doctrine, 8 and the ministry of the Lutheran teacher). It is undisputed that the customer service 9 representative position did not require any kind of formal religious education or training 10 (3/10/23 Freiberg Dep. Tr. at 13:13-20), and instead required only a high school diploma 11 or GED equivalent (id. at 13:22-14:3; Job Posting at WV-000050) and basic 12 administrative skills such as proficiency in Microsoft Office Suite and “[t]he ability to 13 type 20 wpm or more” (Job Posting at WV-000050). And World Vision does not 14 consider the transition process from trainee to customer service representative to be a 15 religious commissioning. (3/10/23 Freiberg Dep. Tr. at 15:19-16:3.) This factor weighs 16 in Ms. McMahon’s favor. 17 The third factor—whether Ms. McMahon held herself out as a minister—is 18 inapplicable here, as Ms. McMahon never commenced employment at World Vision. 19 Fourth, the court examines whether Ms. McMahon would have served important 20 religious functions. In Hosanna-Tabor, this factor favored application of the ministerial 21 exception to a teacher whose “job duties reflected a role in conveying the Church’s 22 message and carrying out its mission,” and who taught religion four days a week, led 1 prayer three times a day, took students to a weekly school-wide chapel service, led the 2 chapel service twice per year, performed devotional exercises every morning with fourth 3 graders, and thereby played an “important role in transmitting the Lutheran faith to the 4 next generation.” Hosanna-Tabor, 565 U.S. at 192 . Here, World Vision argues that as 5 “a baseline,” all customer service representatives serve “important religious functions,” 6 including “confessing they are committed Christians,” “‘wholeheartedly’ agreeing with 7 [World Vision’s] core principles,” communicating World Vision’s Christian faith and 8 witness accurately and with integrity, and participating regularly in prayer activities, 9 devotionals, and weekly chapel services. (Def. 2d MSJ at 6-7 (first citing Spencer, 633 10 F.3d at 738-40; then quoting Spencer, 570 F. Supp. 2d at 1288 ).) But as World Vision 11 acknowledges, all of its staff share these responsibilities, which therefore do not 12 distinguish customer service representatives as holding a “certain important” ministerial 13 position within World Vision. Our Lady of Guadalupe, 140 S. Ct. at 2060. 14 World Vision argues Ms. McMahon would have served important religious 15 functions by sometimes leading the weekly organization-wide chapel services and team 16 devotions. (Def. 2d MSJ at 8-10; Def. Resp. at 14-16.) But it is undisputed that leading 17 the chapel services is neither required nor even expected of customer service 18 representatives, and instead occurs based solely on the individual’s “interest and desire to 19 lead.” (2/16/23 Freiberg Dep. Tr. at 22:20-23.) It is also undisputed that leading the 20 weekly team devotions is “part of every [World Vision] job description” (Prayer 21 Materials at WV-002813), and so does not distinguish customer service representatives 22 // 1 from any other World Vision employee as playing a “certain important” ministerial role. 2 Our Lady of Guadalupe, 140 S. Ct. at 2060 . 3 World Vision also highlights the important responsibility of praying with 4 donors—a responsibility held by customer service representatives alone. (Def. 2d MSJ at 5 7, 9-13.) World Vision expects and encourages its customer service representatives to 6 pray with donors “[i]f comfortable” and “when appropriate.” (Guidance Document at 7 WV-00613-12; Job Posting at WV-000049.) That expectation is demonstrated through 8 the job posting (Job Posting at WV-000049), the customer service representative 9 guidance document (Guidance Document at WV-00613-12), evidence that Ms. 10 McMahon’s training would have included instruction on how and when to pray with 11 donors (3/10/23 Freiberg Dep. Tr. at 15:7-16), and donor shout-outs (Shout Outs). World 12 Vision emphasizes that customer service representatives serve as the “Voice, Face, and 13 Heart” of its organization by fostering donor relationships in prayer and ministering 14 “through fundraising itself.” (Def. 2d MSJ at 7 (quoting Donor Contact Services: DCS 15 Policies at WV-000425), 13 (citing Osborne Decl. ¶¶ 43-44).) Indeed, spiritual 16 “[t]ransformation of donors is just as vital to World Vision as that of the children they 17 sponsor.” (Osborne Decl. ¶ 23 (citing Why Focus on Donor Transformation?); see also 18 Mission Statement (showing that World Vision’s mission statement includes reference to 19 “human transformation”).) World Vision thus sees customer service representatives as 20 “playing a vital part in carrying out the mission” and “message” of the organization, and 21 it is entitled to some deference in explaining the customer service representative’s role 22 “in the life of the religion.” Our Lady of Guadalupe, 140 S. Ct. at 2066 . 1 At the same time, it is undisputed that praying with donors was not a job 2 requirement and the failure to do so did not subject a customer service representative to 3 discipline or termination. (3/10/23 Freiberg Dep. Tr. at 24:2-11, 30:14-23.) Because 4 praying with donors was not strictly required and Ms. McMahon never commenced her 5 employment at World Vision, it is impossible to know whether or how often Ms. 6 McMahon would have performed this job function. It is telling, however, that while Ms. 7 Miolla asked interview questions about Ms. McMahon’s comfort level with placing 8 donor calls and upselling World Vision programs, Ms. Miolla did not ask similar 9 questions with respect to donor prayer in Ms. McMahon’s phone screening interview. 10 (Phone Screener at WV-000068 (stating to Ms. McMahon that “making inbound and 11 outbound calls” and “upselling” programs are “requirement[s]” of the customer service 12 representative position). See generally id. (no mention of praying with donors); Miolla 13 Dep. Tr. at 20:17-21:9 (same).) That World Vision declined to even raise the subject of 14 donor prayer in Ms. McMahon’s screening interview negates the stated importance of 15 that job function. The court concludes that this factor, at most, carries moderate weight 16 and slightly favors World Vision. In general, customer service representatives perform a 17 uniquely important religious function at World Vision by praying with donors if 18 comfortable and when appropriate, but there is no knowing for certain whether Ms. 19 McMahon would have actually done so, too. 20 On balance, the Hosanna-Tabor factors weigh in Ms. McMahon’s favor. But 21 more importantly, the court must assess from a holistic view “what an employee does.” 22 Our Lady of Guadalupe, 140 S. Ct. at 2064. As noted, this inquiry is made more difficult 1 by the fact that World Vision rescinded Ms. McMahon’s job offer before she commenced 2 employment. Although Ms. McMahon never worked at World Vision, what she would 3 have done can be gleaned from the job posting for which she applied and received her job 4 offer. See Butler, 609 F. Supp. 3d at 193-94, 196 (relying on public job listing in 5 determining whether the ministerial exception applied to a Catholic school teacher where 6 the teacher was terminated before the school year began). That job posting demonstrates 7 that the thrust of the customer service representative position is administrative, not 8 ministerial. Of the more than a dozen job responsibilities enumerated in the posting, a 9 significant majority are secular in nature. (See Job Posting at WV-000049.) These 10 include placing and answering donor calls, data entry, updating donor information, 11 maintaining individual statistics and metrics, “up-sell[ing]” and “cross-sell[ing]” World 12 Vision programs, describing World Vision’s activities around the world, maintaining 13 attendance, and keeping apprised of company communications and the World Vision 14 Intranet. (Id.) And the job posting listed nine skills and qualifications—each one 15 secular—ranging from previous sales work experience to typing proficiency. (Id. at 16 WV-000050.) Meanwhile, a customer service representative’s religious responsibilities 17 are limited to “help[ing] carry out [World Vision’s] mission, vision, and strategies,” 18 “[p]ersonify[ing] the ministry of World Vision by witnessing to Christ and ministering to 19 others through life, deed, word and sign,” “attend[ing] and participat[ing] in the 20 leadership of devotions, weekly Chapel services, and regular prayer,” and praying with 21 donors “when appropriate.” (Id.) The court has already considered donor prayer and 22 credited this job function in World Vision’s favor. The remaining religious 1 responsibilities are shared by all World Vision employees (Freiberg Decl. ¶ 53 (citing 2 Orange Book); Osborne Decl. ¶ 12), and therefore do not warrant application of the 3 ministerial exception to Ms. McMahon. 4 Even when considering the facts in the light most favorable to World Vision, 5 under a totality of the circumstances, the customer service representative role does not 6 implicate the fundamental purpose of the ministerial exception. See Our Lady of 7 Guadalupe, 140 S. Ct. at 2067. The exception is rooted in constitutional principles 8 respecting autonomy in “matters of church government.” Id. at 2060 (quoting 9 Hosanna-Tabor, 565 U.S. at 186 ). “[A] component of this autonomy is the selection of 10 the individuals who play certain key roles.” Id. Applying the ministerial exception to the 11 principally administrative customer service representative position would expand the 12 exception beyond its intended scope, erasing any distinction between roles with mere 13 religious components and those with “key” ministerial responsibilities. Id. The 14 undisputed facts demonstrate that Ms. McMahon does not qualify for the ministerial 15 exception. She therefore is entitled to summary judgment on this affirmative defense. 16 D. BFOQ 17 World Vision raises a BFOQ defense under both Title VII and WLAD, but World 18 Vision cannot establish a BFOQ in this case. Title VII permits an employer to 19 discriminate on the basis of “religion, sex, or national origin in those certain instances 20 where religion, sex, or national origin is a bona fide occupational qualification reasonably 21 necessary to the normal operation of that particular business or enterprise.” 42 U.S.C. § 22 2000e–2(e)(1). WLAD similarly permits discrimination “because of . . . sex, marital 1 status, [and] sexual orientation” if “based upon a bona fide occupational qualification.” 2 RCW 49.60.180. “The BFOQ defense is written narrowly, and [the Supreme] Court has 3 read it narrowly.” Int’l Union, United Auto., Aerospace & Agric. Implement Workers of 4 Am., UAW v. Johnson Controls, Inc., 499 U.S. 187, 201 (1991); see also Hegwine v. 5 Longview Fibre Co., 172 P.3d 688, 698 (Wash. 2007) (noting that WLAD’s “BFOQ 6 exception should be applied narrowly” (quoting WAC 162-16-240)). 7 Because World Vision rescinded Ms. McMahon’s job offer based on 8 non-compliance with the SOC—which facially discriminates against those in same-sex 9 marriages—the relevant BFOQ is not being in a same-sex marriage. To escape summary 10 judgment on its BFOQ defense under Title VII, World Vision carries the burden of 11 raising a genuine issue as to whether not being in a same-sex marriage is “‘reasonably 12 necessary’ to the ‘normal operation’ of its ‘particular business,’ and that [this 13 requirement] concern[s] job-related skills and aptitudes.” Frank v. United Airlines, Inc., — 14 — 216 F.3d 845, 855 (9th Cir. 2000) (quoting Johnson Controls, 499 U.S. at 187 ) (holding 15 that an airline “made no showing that having disproportionately thinner female than male 16 flight attendants bears a relation to flight attendants’ ability to greet passengers, push 17 carts, move luggage,” or “provide physical assistance in emergencies,” and thus the 18 airline’s discriminatory weight requirements were “not justified as a BFOQ”). To escape 19 summary judgment on its BFOQ defense under WLAD, World Vision must raise a 20 genuine issue as to whether excluding those in a same-sex marriage was “essential 21 to . . . the purposes of” the customer service representative position or that “all or 22 substantially all” persons in a same-sex marriage “‘would be unable to efficiently 1 perform the duties’ of the position, such that hiring them would undermine [World 2 Vision]’s operations.” Hegwine, 172 P.3d at 698 (first quoting WAC 162-16-240; then 3 quoting Franklin Cnty. Sheriff’s Off. v. Sellers, 646 P.2d 113, 117 (Wash. 1982)) (holding 4 that the employer “offered no evidence that excluding pregnant women was essential to 5 the clerk/order checker position or that substantially all pregnant women are incapable of 6 meeting the position’s lifting requirement” and the employer therefore could not 7 “succeed with a BFOQ defense”). 8 World Vision has not met its burden. Nothing in the record indicates that being in 9 a same-sex marriage affects one’s ability to place and field donor calls, converse with 10 donors, pray with donors, update donor information, upsell World Vision programs, or 11 participate in devotions and chapel. See Frank, 216 F.3d at 855 . World Vision has not 12 shown that excluding those in a same-sex marriage is essential to the customer service 13 representative position or that all or substantially all people in same-sex marriages would 14 be unable to perform the duties of the customer service representative role. See Hegwine, — 15 — 172 P.3d at 698 . Ms. McMahon is therefore entitled to summary judgment on World 16 Vision’s BFOQ defenses under Title VII and WLAD. 17 E. Free Exercise 18 World Vision claims that enforcement of Title VII and WLAD in this instance 19 impinges its Free Exercise rights under the First Amendment, but Title VII and WLAD 20 are neutral and generally applicable laws that survive constitutional scrutiny. 21 The Free Exercise Clause, which applies to the states through the Fourteenth 22 Amendment, provides that “Congress shall make no law . . . prohibiting the free exercise” 1 of religion. U.S. Const. amend. I; Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, — 2 — 508 U.S. 520, 531 (1993) (citing Cantwell v. Connecticut, 310 U.S. 296, 303 (1940)). 3 But “[n]ot all burdens on religion are unconstitutional,” and “[t]he state may justify a 4 limitation on religious liberty by showing that it is essential to accomplish an overriding 5 governmental interest.” United States v. Lee, 455 U.S. 252, 257-58 (1982). “[L]aws 6 incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free 7 Exercise Clause so long as they are neutral and generally applicable.” Fulton v. City of 8 Philadelphia, 593 U.S. __ , 141 S. Ct. 1868 , 1876 (2021) (citing Emp. Div., Dep’t of Hum. 9 Res. of Or. v. Smith, 494 U.S. 872, 878-882 (1990) (“We have never held that an 10 individual’s religious beliefs excuse him from noncompliance with an otherwise valid 11 law prohibiting conduct that the State is free to regulate.”)). Neutral and generally 12 applicable laws are subject to rational basis scrutiny. See, e.g., Stormans, Inc. v. Selecky, — 13 — 586 F.3d 1109, 1137 (9th Cir. 2009). 14 “Government fails to act neutrally when it proceeds in a manner intolerant of 15 religious beliefs or restricts practices because of their religious nature.” Fulton, 141 S. 16 Ct. at 1877 (first citing Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 584 U.S. __ , — 17 — 138 S. Ct. 1719, 1730-32 (2018) (holding an adjudicatory body of the Colorado Civil 18 Rights Commission failed to act neutrally in an administrative proceeding when it 19 demonstrated “hostility” towards a bake shop owner’s religiously-grounded opposition to 20 same-sex marriage); then citing Lukumi Babalu Aye, 508 U.S. at 533 (holding that a city 21 ordinance lacked neutrality and targeted the Santeria religion where it effectively 22 prohibited any killing of animals for the purpose of Santeria ritual sacrifice but ensured 1 “killings that are no more necessary or humane in almost all other circumstances are 2 unpunished”)). Here, World Vision has not shown that either Title VII or WLAD is 3 intolerant of religious beliefs or was enacted to burden religious employers’ employment 4 practices because of their religion. See Fulton, 141 S. Ct. at 1877. The object of Title 5 VII and WLAD is not to target religion, but rather to eliminate discrimination in 6 employment. See Fremont Christian Sch., 781 F.2d at 1368; RCW 49.60.010. Indeed, 7 both schemes tolerate and respect religious beliefs in myriad ways, for example by 8 including a religious organization exemption that permits qualifying religious entities like 9 World Vision to “base relevant hiring decisions upon religious preferences.” Fremont 10 Christian Sch., 781 F.2d at 1366; see also 42 U.S.C. § 2000e–1(a); RCW 49.60.040(11); 11 Spencer, 633 F.3d at 724 . Thus, Title VII and WLAD are neutral for purposes of the 12 Free Exercise Clause. 13 Title VII and WLAD are also generally applicable. A law generally applies if it 14 does not selectively “impose burdens only on conduct motivated by religious belief.” 15 Lukumi Babalu Aye, 508 U.S. at 543 . Conversely, “[a] law is not generally applicable if 16 it invite[s] the government to consider the particular reasons for a person’s conduct by 17 providing a mechanism for individualized exemptions.” Fulton, 141 S. Ct. at 1877 18 (internal quotation marks omitted) (quoting Smith, 494 U.S. at 884 ). In Fulton v. City of 19 Philadelphia, for example, a city ordinance governing foster care referrals prohibited 20 agencies from rejecting prospective foster or adoptive parents from services based upon 21 sexual orientation “unless an exception is granted by the Commissioner . . . in his/her sole 22 discretion.” Id. at 1878 (quoting Supp. App. Brief for City Respondents at 16-17, Fulton, — 1 — 141 S. Ct. 1868 (No. 19-123)). “[T]he inclusion of a formal system of entirely 2 discretionary exceptions” rendered the ordinance “not generally applicable.” Id. World 3 Vision claims Title VII and WLAD fail general applicability because they contain 4 “individualized” and “discretionary” exemptions, but that is incorrect. (Def. 2d MSJ at 5 16-17 (citing exemptions related to small employers, Communists, and Indian 6 reservations, as well as BFOQs).) Unlike Fulton, the cited exemptions here are 7 categorical. Their application does not depend on individualized discretion; they contain 8 no mechanism to import such discretion, and they therefore do not invite “the 9 government to decide which reasons for not complying with the [law] are worthy of 10 solicitude.” Fulton, 141 S. Ct. at 1879. As neither Title VII nor WLAD seeks to 11 selectively burden religiously motivated conduct, both are generally applicable. See 12 Lukumi Babalu Aye, 508 U.S. at 543 . 13 Relying on Tandon v. Newsom, 593 U.S. __ , 141 S. Ct. 1294 (2021), World Vision 14 argues that Title VII and WLAD are not neutral or generally applicable because they 15 contain various “secular” exemptions and therefore treat “some secular activity more 16 favorably than religious exercise.” (Def. 2d MSJ at 15-16 (citing exemptions related to 17 small employers, Communists, and Indian reservations, as well as BFOQs).) World 18 Vision is correct that Tandon “clarif[ies] that targeting is not required for a government 19 policy to violate the Free Exercise Clause. Instead, favoring comparable secular activity 20 is sufficient” to trigger strict scrutiny. Fellowship of Christian Athletes v. San Jose 21 Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 686 (9th Cir. 2023) (citing Tandon, 141 S. 22 Ct. at 1296 (“[G]overnment regulations are not neutral and generally applicable, and 1 therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any 2 comparable secular activity more favorably than religious exercise.”)). The Supreme 3 Court explained in Tandon “that California could not impose COVID-related gathering 4 restrictions on at-home religious exercise while providing more favorable treatment to 5 comparable secular activities by exempting gatherings at places such as hair salons, retail 6 stores, movie theaters, and indoor restaurants.” Id. at 688-89 (citing Tandon, 141 S. Ct. 7 at 1297). Unlike the COVID restrictions in Tandon, however, World Vision’s cited 8 exemptions do not demonstrate disparate treatment between comparable secular and 9 religious activity. To illustrate, if Title VII and WLAD exempted small religious 10 employers but not small secular employers, that would offend Tandon. But the mere 11 existence of an exemption for all small employers—religious and secular alike—does not 12 transform Title VII and WLAD from neutral and generally applicable laws into those 13 triggering strict scrutiny. 14 Because Title VII and WLAD are neutral laws of general applicability, the court 15 applies rational basis scrutiny. See, e.g., Stormans, 586 F.3d at 1137 . This deferential 16 form of scrutiny asks whether the challenged law is “rationally related to a legitimate 17 government purpose,” and World Vision bears the burden to negate “every conceivable 18 basis which might support it.” Id. (quoting Heller v. Doe by Doe, 509 U.S. 312 , 320 19 (1993)). Title VII and WLAD easily meet this standard, as they both advance the 20 government’s legitimate interest in eradicating discrimination in employment. See 21 Fremont Christian Sch., 781 F.2d at 1368 (holding that Title VII’s “purpose to end 22 discrimination is equally if not more compelling than other interests that have been held 1 to justify legislation that burdened the exercise of religious convictions” (quoting Pac. 2 Press, 676 F.2d at 1280 )); State v. Arlene’s Flowers, Inc., 441 P.3d 1203, 1231 (Wash. 3 2019) (holding in an as-applied Free Exercise challenge that WLAD “is a neutral, 4 generally applicable law subject to rational basis review” and “clearly meets that 5 standard”). Ms. McMahon is entitled to summary judgment on World Vision’s Free 6 Exercise defense. 7 F. Expressive Association 8 There are two forms of constitutionally protected association: intimate and 9 expressive association. Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). World 10 Vision invokes the latter, arguing its First Amendment freedom of expressive association 11 protects its decision not to associate with Ms. McMahon. The court disagrees. 12 “Among the rights protected by the First Amendment is the right of individuals to 13 associate to further their personal beliefs. While the freedom of association is not 14 explicitly set out in the Amendment, it has long been held to be implicit in the freedoms 15 of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181 (1972); see also 16 U.S. Const. amend. I (“Congress shall make no law respecting an establishment of 17 religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of 18 the press; or the right of the people peaceably to assemble, and to petition the government 19 for a redress of grievances.”). Expressive association “plainly presupposes a freedom not 20 to associate.” Roberts, 468 U.S. at 623 . “The forced inclusion of an unwanted person in 21 a group infringes the group’s freedom of expressive association if the presence of that 22 person affects in a significant way the group’s ability to advocate for public or private 1 viewpoints.” Boy Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000). But freedom of 2 expressive association is not absolute. Id. “Infringements on that right may be justified 3 by regulations adopted to serve compelling state interests, unrelated to the suppression of 4 ideas, that cannot be achieved through means significantly less restrictive of associational 5 freedoms.” Roberts, 468 U.S. at 623 . 6 To determine whether World Vision is protected by the First Amendment’s 7 freedom of expressive association, the court “must determine whether [World Vision] 8 engages in ‘expressive association.’” Dale, 530 U.S. at 648 . “The First Amendment's 9 protection of expressive association is not reserved for advocacy groups. But to come 10 within its ambit, a group must engage in some form of expression, whether it be public or 11 private.” Id. Relying on Dale, World Vision argues its “community associates together 12 in expressive activities to further their shared stances,” and that “[o]ne such stance is 13 [World Vision’s] marriage policy.” (Def. 2d MSJ at 22.) According to World Vision, 14 “[t]he ‘forced inclusion’ of [Ms. McMahon] would ‘significantly burden’ World Vision’s 15 ‘right to oppose or disfavor same-sex conduct’ or marriage” in violation of the First 16 Amendment. (Id. at 26 (quoting Dale, 530 U.S. at 571-75 ).) Ms. McMahon vigorously 17 argues that World Vision’s reliance on Dale is misplaced, and that “there is no First 18 Amendment expressive association defense to statutory employment discrimination 19 claims.” (Pl. 2d MSJ at 25-28.) 20 Dale held that the Boy Scouts of America’s First Amendment freedom of 21 expressive association shielded it from a gay scout’s discrimination claim under a New 22 Jersey public accommodations law. Dale, 530 U.S. at 644 . Because the very mission of 1 the Boy Scouts was to “instill values in young people,” the Supreme Court concluded that 2 acceptance of an openly gay and outspoken “gay rights activist” as a Scout leader would 3 “force the organization to send a message, both to the youth members and the world, that 4 the Boy Scouts accepts homosexual conduct as a legitimate form of behavior,” which the 5 First Amendment does not tolerate. Id. at 649, 653, 656 . The Court made careful note 6 that its holding was “not to say that an expressive association can erect a shield against 7 antidiscrimination laws simply by asserting that mere acceptance of a member from a 8 particular group would impair its message.” Id. at 653 . Most critically, Dale did not 9 arise under Title VII or in the employment discrimination context because the plaintiff 10 was only a Boy Scout volunteer, not an employee. See id. at 644, 651 . At issue was the 11 application of a New Jersey law banning discrimination on the basis of sexual orientation 12 in places of public accommodation. Id. at 645 . The Court’s analysis rests on cases 13 involving non-employment contexts such as political parties and parade groups. See id. 14 at 653-55 (first citing Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 15 107, 124 (1981); then citing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., — 16 — 515 U.S. 557, 574-75 (1995)). And central to the Court’s holding was its observation 17 that New Jersey “applied its public accommodations law to a private entity without even 18 attempting to tie the term ‘place’ to a physical location.” Id. at 657 & n.3 (noting that 19 several courts had previously “ruled that the Boy Scouts is not a place of public 20 accommodation”). The legal issues here and in Dale are distinct, and Dale does not 21 support application of the expressive association doctrine to Ms. McMahon’s claims. 22 // 1 The court is persuaded that this employment discrimination action does not 2 implicate World Vision’s expressive associational rights. Indeed, the Supreme Court has 3 previously rejected such a defense in the context of employment discrimination. See 4 Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) (“[I]nvidious private discrimination 5 may be characterized as a form of exercising freedom of association protected by the 6 First Amendment, but it has never been accorded affirmative constitutional protections.” 7 (quoting Norwood v. Harrison, 413 U.S. 455, 470 (1973))); see also Wisconsin v. 8 Mitchell, 508 U.S. 476, 487 (1993) (“In Hishon, we rejected the argument that Title VII 9 infringed employers’ First Amendment rights.”).6 10 World Vision cites an out-of-circuit case for the proposition that a party may raise 11 an expressive associational defense to employment discrimination claims (Def. 2d MSJ at 12 20 (citing Slattery v. Hochul, 61 F.4th 278, 291 (2d Cir. 2023)), but that case fails to 13 address the Supreme Court’s holding in Hishon and is distinguishable from the present 14 case. Slattery concerned whether an anti-abortion crisis pregnancy center, Evergreen 15 Association, Inc. (“Evergreen”), plausibly stated a claim that a New York labor law 16 unconstitutionally burdened its expressive associational rights “by preventing it from 17 disassociating itself from employees who, among other things, seek abortions.” 61 F.4th 18 at 283 (noting that the challenged law barred adverse action against employees based on — 19 — 20 6 Moreover, as at least one other court has observed, if World Vision could raise an expressive association defense to defeat any Title VII claim, it is difficult to conceive why the Supreme Court would have carved a specific constitutional exception to liability under Title VII — 21 — for only ministerial employees. See Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc., 496 F. Supp. 3d 1195 , 1209 (S.D. Ind. 2020) (“If freedom of association applies in the religious — 22 — employment context, the ministerial exception is unnecessary.”). 1 their reproductive health decisions). The Second Circuit reversed the lower court’s 2 dismissal of the claim, concluding that the statute would have forced Evergreen “to 3 employ individuals who act or have acted against the very mission of its organization,” 4 which triggered strict scrutiny. Id. at 288 (analogizing to New Hope Family Services v. 5 Poole, 966 F.3d 145 (2d Cir. 1979), a non-employment case related to alleged 6 discrimination in adoption referrals). Importantly, Evergreen’s “very mission” was to 7 encourage pregnant persons to choose paths other than abortion. Id. at 284, 288 . In 8 contrast, World Vision’s “very mission” is not to oppose or discourage same-sex 9 marriage, but “to follow our Lord and Savior Jesus Christ in working with the poor and 10 oppressed to promote human transformation, seek justice and bear witness to the good 11 news of the Kingdom of God.” (Mission Statement.) Enforcing Title VII and WLAD in 12 this instance would not require World Vision to employ someone who acts against its 13 “very mission.” Slattery, 61 F.4th at 288 . Thus, even assuming that World Vision could 14 raise an expressive association defense akin to Slattery, Slattery’s reasoning has no force 15 here. 16 World Vision cites just one other case in which a court accepted an expressive 17 association defense in the employment discrimination context. (See Def. 2d MSJ at 21 18 (citing Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571 (N.D. Tex. 2021), aff’d 19 in part, rev’d in part, and vacated in part on other grounds sub nom. Braidwood Mgmt., 20 Inc. v. EEOC, 70 F.4th 914 (5th Cir. 2023)); see also Def. Reply at 16 (same).) But Bear 21 Creek relies almost exclusively upon Dale in holding that expressive association 22 precluded liability under Title VII. See Bear Creek, 571 F. Supp. 3d at 614-15. The 1 court finds Bear Creek unpersuasive because it fails to recognize the crucial distinctions 2 discussed above that render Dale inapplicable to the employment discrimination context.7 3 The court concludes that World Vision’s expressive association defense fails as a 4 matter of law, and Ms. McMahon is therefore entitled to summary judgment on this 5 affirmative defense. 6 G. 303 Creative LLC v. Elenis 7 Finally, the court’s July 24, 2023 and August 14, 2023 orders invited the parties to 8 address the “impact, if any, of the Supreme Court’s recent decision in 303 Creative LLC 9 v. Elenis, [600] U.S. [570], 143 S. Ct. 2298 (2023) on” World Vision’s remaining 10 affirmative defenses. (8/14/23 Order at 5; see also 7/24/23 Order at 11.) The court is 11 satisfied that 303 Creative, which arose under the First Amendment’s Free Speech 12 Clause, has no application to this case. 303 Creative addressed compelled speech in the 13 context of a Colorado public accommodations law, which forbade businesses from 14 engaging in discrimination when selling goods and services to the public. 600 U.S. at 15 577-78. The Supreme Court held that Colorado could not compel a website designer who 16 opposed same-sex marriage to create a wedding website for a same-sex couple without 17 offending the Free Speech Clause of the First Amendment. Id. at 579-80, 589 . 18 // — 19 — — 20 — 7 Notably, Bear Creek also addressed an argument under the Free Exercise Clause nearly identical to that of World Vision—reaching the opposite conclusion as here. See Bear Creek, — 21 — 571 F. Supp. 3d at 612-14 (holding that Title VII is not generally applicable and triggers strict scrutiny because it carves “secular” exemptions related to small businesses, Communists, and — 22 — Indian reservations). 1 This employment discrimination action, however, does not involve compelled 2 speech. In general, speech for First Amendment purposes includes “the spoken or written 3 word” as well as “conduct [that] possesses sufficient communicative elements.” Texas v. 4 Johnson, 491 U.S. 397, 404 (1989). The Supreme Court has rejected “the view that an 5 apparently limitless variety of [expressive] conduct can be labeled ‘speech.’” United 6 States v. O’Brien, 391 U.S. 367, 376 (1968). To determine whether expressive conduct 7 constitutes speech for First Amendment purposes, courts consider “whether an intent to 8 convey a particularized message was present, and whether the likelihood was great that 9 the message would be understood by those who viewed it.” Johnson, 491 U.S. at 404 10 (cleaned up). “[I]t is the obligation of the person desiring to engage in assertedly 11 expressive conduct to demonstrate that the [Free Speech Clause] even applies.” Clark v. 12 Cmty. for Creative Non-Violence, 468 U.S. 288 , 293 n.5 (1984). 13 World Vision has not shown that continuing to employ Ms. McMahon would 14 amount to expressive conduct that communicates its views so as to constitute “speech” 15 within the meaning of the First Amendment. “It is possible to find some kernel of 16 expression in almost every activity a person undertakes . . . but such a kernel is not 17 sufficient to bring the activity within the protection of” the Free Speech Clause. City of 18 Dallas v. Stanglin, 490 U.S. 19, 25 (1989). Because enforcement of Title VII and 19 WLAD would not result in compelled speech, 303 Creative has no bearing on this case. 20 IV. CONCLUSION 21 World Vision rescinded Ms. McMahon’s job offer pursuant to a policy that 22 facially discriminates on the basis of sex, sexual orientation, and marital status in 1 violation of Title VII and WLAD. (7/24/23 Order at 6-10; 8/14/23 Order at 3.) Because 2 World Vision’s remaining affirmative defenses—the religious organization exemptions, 3 the ministerial exception, the BFOQ defense, freedom of expression, and freedom of 4 association—fail as a matter of law, World Vision is liable for sex and sexual orientation 5 discrimination under Title VII and WLAD, as well as marital status discrimination under 6 WLAD. The court therefore DENIES World Vision’s motion for summary judgment 7 (Dkt. # 53) and GRANTS Ms. McMahon’s motion for partial summary judgment (Dkt. 8 # 52). 9 This case will now proceed to trial to determine the appropriate relief that should 10 be granted. Accordingly, and pursuant to the court’s July 24, 2023 and August 14, 2023 11 orders, the court will enter a separate order setting forth a new trial schedule. (7/24/23 12 Order at 12; 8/14/23 Order at 5.) 13 Dated this 28th day of November, 2023. A — 14 — JAMES L. ROBART 15 United States District Judge — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 —