Pime v. Loyola University of Chicago

FAIRCHILD, Senior Circuit Judge. Appellant Jerrold S. Pime brought suit against Loyola University of Chicago under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), for religious discrimination in the hiring of tenure track professors in Loyola’s College of Arts and Sciences, Department of Philosophy. The Department of Philosophy had passed a resolution reserving the next three vacancies in tenure track teaching positions for Jesuits, members of the Society of Jesus. Loyola asserted two affirmative defenses. First, it claimed that it could require its employees to be Jesuits (and thus Catholics) under 42 U.S.C. § 2000e-2(e)(2) (hereafter (e)(2)). Subsection (e)(2) permits an educational institution to employ persons of a particular religion if the institution is “in whole or in substantial part, owned, supported, controlled, or managed ... by a particular religion or by a particular religious corporation, association, or society.” It also claimed it could require those employees to be Jesuits according to 42 U.S.C. § 2000e-2(e)(l) (hereafter (e)(1)). Subsection (e)(1) permits an employer to employ an individual “on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national ori [352] gin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” [BFOQ] The district court judge, after a bench trial, granted judgment in favor of Loyola after finding that being a Jesuit was a BFOQ. Pime v. Loyola University of Chicago, 585 F.Supp. 435, 443 (N.D.Ill.1984). Plaintiff Pime challenges the finding of a BFOQ. Defendant Loyola challenges Judge Leighton’s conclusion that Loyola could not rely on subsection (e)(2). I. Background The Society of Jesus is a religious order of the Roman Catholic Church. Its members, who are, with few exceptions, priests, are called Jesuits. The order has been characterized by interest and particular energy in the promotion of education, and has established twenty-eight universities in the United States. Jesuits are required to complete a protracted course of training and to make perpetual vows. Once they accept positions as professors they continue to incorporate their religious mission into their professional work. Loyola University of Chicago has a long Jesuit tradition. Since 1909 its legal entity has been an Illinois not-for-profit corporation. Until 1970, it was governed by a Board of Trustees, all members of which were Jesuits. It has become a large university, consisting of ten schools and colleges, a medical center and a hospital. Presently 93% of academic administrators are non-Jesuit, as aré 94% of the teaching staff. In 1970, apparently to respond to the needs of growth, the Board amended the By-laws, enlarging the Board to 23, but requiring that one more than one-third must be Jesuits. The majority are in fact non-Jesuit. Amendment of the By-laws requires a two-thirds vote. The By-laws provide, however, that the president, who is the principal executive officer, must be a Jesuit. Every undergraduate must take three Philosophy courses. About 75% of the students come from Catholic backgrounds. There was testimony by the President that, “I’m convinced that of all the things we say about Loyola, the most effective single adjective in attracting students and alumni support and benefactors is its Jesuitness.” In the fall of 1978, there were 31 tenure track positions in the Philosophy Department. Seven had been held by Jesuits, but one had resigned and two more retirements were imminent. On October 12, the department chairman reported to a meeting of the department faculty as follows: We anticipate 3 full-time faculty openings in the Philosophy Department beginning September 1979. They are the position of Fr. Dehler and those of Fr. Grant and Fr. Loftus after they retire at the end of the current academic year. There are two different kinds of departmental needs which seem to bear heavily on the decision as to the kind of persons we should seek to hire for these openings. 1. The first is a need which the Chairman voiced two years ago just after Fr. Dehler’s resignation. That is, the need for an adequate Jesuit presence in the Department. We are a Philosophy Department in a University with a Jesuit tradition. It is mainly by reason of this tradition that philosophy has the importance it does in the education of Loyola undergraduates. Therefore, it behooves us, however strongly we may feel about “the autonomy of philosophy,” to acknowledge our association with this tradition. One very basic and obvious way of making such acknowledgement is by insisting upon an adequate Jesuit presence in the faculty of the Department. With the retirement of Father Grant and Father Loftus, we shall be left with 4 out of 31 faculty positions occupied by Jesuits. 4 out of 31 is not an adequate Jesuit presence in the Department. In the judgment of the Chairman, it would be highly desirable to fill all three openings with professionally competent Jesuit philosophers. And it is his recommendation that we do so if we can. [353] 2. The second kind of departmental need is for faculty especially qualified to teach courses in the following areas: a. Applied ethics, especially medical ethics. There is an increasing student demand for such courses and for additional undergraduate course offerings at the Medical School, b. Philosophy of Law. This is one of the most popular of our 300-/evel course offerings. It needs to be offered annually both at Lake Shore Campus and Water Tower Campus and there seems to be some desire that we offer it annually in the Law School, c. Logic. There is an exceedingly heavy student enrollment at both Lake Shore Campus and Water Tower Campus. Additional sections of courses in logic should be offered on each campus. . Consequently, we should seek persons who have special competence and interest in teaching courses in these areas. The Chairman’s recommendation is that we seek to hire persons who will help teach in these areas. These two kinds of needs are different though not incompatible. The Chairman’s recommendations as to hiring is the following: That for each of these 3 positions we seek to hire a professionally competent Jesuit philosopher — preferably a young Jesuit with competence to teach in one or several of the areas mentioned above. At the November 30 meeting, the following resolution was adopted: That for each of the 3 positions we seek to hire a professionally competent Jesuit philosopher — preferably a young Jesuit with competence to teach in one or several of the following' areas: a) applied ethics, especially medical ethics; b) philosophy of law; and c) logic; and that if we should be unable to hire such, we hire temporary full-time person(s) with special competence to teach in one or several of these areas. Plaintiff Pime, a Jew, had been employed in 1976 as a part-time lecturer in the department. He taught several courses. He expected to receive his doctorate in June, 1979 and had received indications of approval of his work. He knew of the resolution of November 30, and asked the department chairman when there would be a full-time tenure track position for him. The chairman said he saw nothing in the way of a position for Pime in the next three or four years. Disappointed, Pime left Loyola after the spring semester. He filed a timely charge of employment discrimination with EEOC and received notice of his right-to-sue. Then he filed this action.1 There is no hint of invidious action against Pime on account of his religion. The faculty resolution excluded every non-Jesuit from consideration, whether of the Catholic faith or otherwise. We shall assume, however, that because Pime’s faith would prevent his being a Jesuit, he has a claim of discrimination on account of religion. II. BFOQ 42 U.S.C. § 2000e-2(e)(1) provides: (e) [I]t shall not be an unlawful employment practice for an employer to hire and employ employees, ... on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. The BFOQ involved in this case is membership in a religious order of a particular faith. There is evidence of the relationship of the order to Loyola, and that Jesuit “presence” is important to the successful operation of the university. It appears to be significant to the educational tradition [354] and character of the institution that students be assured a degree of contact with teachers who have received the training and accepted the obligations which are essential to membership in the Society of Jesus. It requires more to be a Jesuit than just adherence to the Catholic faith, and it seems wholly reasonable to believe that the educational experience at Loyola would be different if Jesuit presence were not maintained. As priests, Jesuits perform rites and sacraments, and counsel members of the university community, including students, faculty, and staff. One witness expressed the objective as keeping a presence “so that students would occasionally encounter a Jesuit.” It is true that it has not been shown that Jesuit training is a superior academic qualification, applying objective criteria, to teach the particular courses. It is also true that in looking at claims of BFOQ, courts have considered only the content of the particular job at issue. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 622, 83 L.Ed.2d 523 (1985). Yet it seems to us that here the evidence supports the more general proposition that having a Jesuit presence in the Philosophy faculty is “reasonably necessary to the normal operation” of the enterprise, and that fixing the number at seven out of 31 is a reasonable determination. Judge Leighton found as follows: Clearly, religion, the fact that the three full-time vacancies were reserved for Jesuits, persons who were Catholics, was the basis for the decision which the tenured faculty made on October 12, 1978, at the general meeting of the Department of Philosophy. In good faith, Loyola, through its tenured faculty in the Department of Philosophy, decided that being a Jesuit, again a matter of religion, was to be required of those who were to fill the three vacancies. This was a bona fide determination of qualification for the position. Finally, the full-time faculty determined that it was necessary for the future of the department, and for Loyola, that a “Jesuit presence” in the university be maintained, and that the designated areas of teaching be done by competent Jesuit philosophers. Therefore, Loyola qualifies for the [BFOQ] exemption____ The finding is not clearly erroneous. The judgment appealed from is Affirmed. Footnotes [1] Even though appellant did not formally apply for a tenure track position no standing question arises. One does not have to apply for a job when it is obvious that it would be a futile act. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Berkman v. City of New York, 705 F.2d 584 (2nd Cir.1983).