Legal Hotline: Religious Preference in Employment Ads

  • Apr 05, 2018

Melissa Melewsky, Media Law Counsel

Q: Can religious organizations show religious preference in employment ads, and if so, are there any guidelines for publishers who place this type of ad?

A: There is a limited exception in Pennsylvania law that allows some religious organizations to show a preference based on religion in employment ads and hiring practices, but the exception is very narrow and publishers must proceed with caution. 

The Pennsylvania Human Relations Act generally prohibits discrimination or preference in employment based on protected classifications such as age, sex, religion, race, disability, etc. The law also imposes liability on publishers for advertisements that violate the law, independent of advertiser liability.

There are a number of limited exceptions to these general rules, including section 955(h)(10) of the Pennsylvania Human Relations Act, which allows certain religious entities to show a preference in hiring based on religion, but this exemption can only be applied if the organization does not receive any government funding. Most religious schools and some other religious organizations receive government funding, and if they do, the religious exemption in the Human Relations Act does not apply because it would create Establishment Clause issues under the First Amendment of the United States Constitution as well as similar provisions in the Pennsylvania Constitution.

If a religious organization does not receive government funding and the religious preference exemption applies, the advertiser can show a preference based on religion in an employment ad.  However, any newspaper accepting an ad that suggests a preference must get a written statement, signed by a person in authority at the religious entity, that states that the advertiser is not an "employer" as that term is defined under the Pennsylvania Human Relations Act, because it does not receive any government or public funding of any kind. This written statement provides the publisher with a defense to potential liability that could result from publishing a discriminatory employment ad. Under the Pennsylvania Code, 16 Pa Code 41.72(h), a newspaper publisher will not be liable for publishing such an ad when relying, in good faith, on an advertiser's claim that it does not meet the definition of employer. 

It is important to remember that even if a religious entity meets the requirements of the law and provides the written statement necessary to publish a religious preference employment ad, they are still generally prohibited from discriminating or showing a preference based on age, sex, race, disability or other protected classification.

As always, this is not intended to be, nor should it be construed as, legal advice. Please contact the PNA Legal Hotline at (717) 703-3080 or your corporate counsel with questions. 

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