The Washington Law Against Discrimination (WLAD) declares a right to be free from discrimination because of sexual orientation. The Attorney General and private individuals may sue employers for discriminatory practices under the WLAD.
The WLAD exempts religious nonprofits from its definition of “employer.” However, in 2021, the Washington Supreme Court determined that the WLAD’s exemption of all religious nonprofit employers might violate the Washington State Constitution. At the same time, the U.S. Supreme Court has recognized special protections for religious employers with regard to ministerial employees.
Seattle Pacific University is a Christian university that prohibits employees from engaging in same-sex intercourse and marriage. After receiving hundreds of complaints, the Washington Attorney General sent the University a letter alerting it to an investigation under the WLAD. The letter requested: (1) information regarding hiring, discipline, and employment policies, (2) a description of instances when the sexual orientation policies have been implemented, (3) any complaints from prospective, current, or former employees, and (4) the job descriptions for all employees. In addition, the Attorney General requested the retention of all documents relevant to the investigation.
In response, the University filed suit against the Washington Attorney General to stop the investigation and any future enforcement of the WLAD. The Attorney General filed a motion to dismiss the lawsuit, arguing, among other claims, that the University failed to allege any injury. In response, the University argued that the probe and future enforcement of the WLAD violated the First Amendment. At oral argument, the trial court questioned the Attorney General’s counsel on the repercussions of the University ignoring the letter, to which the Attorney General’s counsel replied that there were no legal consequences. The trial court dismissed the complaint. The University appealed.
To establish standing, the University must show that they experienced an injury, causation, and a likelihood that a favorable decision would redress their injury. The University argued that the request for documents chilled their religious exercise, both because the University was targeted for retaliation and because the probe intruded on their religious autonomy. The Court of Appeals disagreed, reasoning that there were no legal consequences for ignoring the Attorney General’s requests. The Court of Appeals also found that the investigation alone was not sufficient to establish a First Amendment violation. The ministerial exception is an affirmative defense and only applies to certain employees, meaning that a threshold inquiry into whether an individual is a minister is necessary.
With that being said, the Court of Appeals concluded that the University established “pre-enforcement standing,” which occurs when a party has alleged a credible threat of enforcement in the future, resulting in a chilling effect on a party’s conduct in the present.
The University provided sufficient evidence that it intended to continue its employment practices. For example, in the face of faculty and student pressure to change its policies, the University’s Board voted to retain the existing employee conduct policy prohibiting same-sex marriage and intimacy. Furthermore, the University alleged that it would be automatically disaffiliated from the Free Methodist Church if it permitted employment of Christians in same-sex marriages. The University made clear that it would continue to apply its sexual conduct policies to all employees, meaning that it would arguably violate the WLAD, which prohibits employment discrimination on the basis of sex. Finally, the Attorney General’s letter requesting documents and a litigation retention hold was enough to establish a threat of enforcement.
The Court of Appeals reversed the trial court’s dismissal of five out of 11 of the University’s claims.
Note: This University is located in Washington; however, this decision was from the Ninth Circuit Court of Appeals, which is binding on California.
Seattle Pac. Univ. v. Ferguson (9th Cir. June 7, 2024) 2024 U.S. App. LEXIS 13908.