Is Google illegally discriminating against religious organizations?

Under my recent post regarding the Google Apps user agreement for non-profits, a discussion was started about how Christians should respond to terms of service like the one mentioned in the post. Here's my attempt to restate the position of one commenter:

The best way to keep the interpretation of these regulations (and terms of service, clauses, etc) from becoming established in a way that does violence to our understanding of the words used in them is to agree to said regulations and then battle it out in court if the need arises. We all see how Google and others are trying to set precedents that we disagree with, and so we shouldn't simply accept their interpretations, but should instead fight them. So, in this case, Christians should agree to Google's terms of service and then be ready to fight it out if the matter ends up in court.

I hope that I have accurately stated the position of the commenter. Here's my response:

Let's start with the word "discriminate". This commenter stated that "discrimination involves a denial of someone's civil rights." I don't think that's right, and I don't think that's how Google understands the word, either. The word "discriminate" now carries a great deal of negative baggage...

in common speech and, for Americans, conjures up thoughts of the civil rights battles of the 1960's. However, I don't think that legal discussions of discrimination necessarily import those connotations. Otherwise, statements like this would be meaningless: "Federal discrimination laws make it illegal for employers to discriminate against employees and job applicants in any aspect of employment based on age, disability, national origin, race, religion, genetics or sex (gender)." I assume that if certain kinds of discrimination are illegal, then other kinds of discrimination must be legal. I think Google understands that, and I don't see how they are trying to bend the language to their purposes in the non-profit application I discuss in my previous post.

And so that leads me to a question: If some discrimination in employment practices in the US is legal, what classifies as illegal employment discrimination?

According to this page from Wikipedia, federal law prohibits employers from discriminating against employees (and potential employees) on the basis of the following 11 "protected categories":

1. Race
2. Sex
3. Pregnancy
4. Religion
5. National origin
6. Disability (physical or mental, including HIV status)
7. Age (for workers over 40)
8. Military service or affiliation
9. Bankruptcy or bad debts
10. Genetic information
11. Citizenship status (for citizens, permanent residents, temporary residents, refugees, and asylees)

Furthermore, each state also has its own laws regarding employment discrimination. If you scroll further down that Wikipedia page, you'll see a chart that breaks down more state-level "protected categories" which are not included in federal law. Indiana does not have anti-discrimination laws pertaining to "gender identity" and "sexual orientation", for instance, but other states do.

How does a category get to be "protected"? Or, perhaps a better question, how do categories stay off the "protected" list? Obviously, many people and institutions these days are lobbying for "gender identity" and "sexual orientation" to be added. But why not "eye color" or "height"? (Apparently, height is a protected category in the state of Michigan.) As far as I can tell, interest groups must simply gain enough political power, and do enough lobby, to convince the government to add another category.

If you're paying attention, though, you've noticed by now that, according to federal law, employers may not discriminate on the basis of either sex or religion. That should puzzle you if you're a Christian, because many Christian churches do make a point of discriminating on the basis of sex when hiring pastors. They also discriminate on the basis of religion: their pastors generally must be... Christians. How are they legally permitted to do that?

In the 2012 Supreme Court case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (this article about it in the Washington Post is very good), the Court "unanimously ruled that federal discrimination laws do not apply to religious organizations' selection of religious leaders." So it turns out that the First Amendment protection of the free exercise of religion in our constitution has allowed the Roman Catholic church, for instance, to continue its practice of discriminating on the basis of sex and religion regarding their hiring of priests. According to the Supreme Court, it would be a violation of the First Amendment for the government to interfere when a religious organization wants to hire or fire a leader. And rightly so. Religious organizations are essentially exempt from federal and state non-discrimination laws.

That brings us back to the Google Apps non-profit application. Here, again, are the two pertinent clauses with which I must agree if my organization is to be granted access:

• My organization does not discriminate on any unlawful basis in either hiring/employment practices or in the administration of programs and services.
• My organization does not discriminate on the basis of sexual orientation or gender identity in hiring/employment practices.

Google knows that the categories of "gender identity" and "sexual orientation" are not included in federal anti-discrimination laws. They also know, or suspect, that religious organizations are exempt from many, if not all, of the anti-discrimination laws out there. And so they have added that second point to target organizations like Clearnote Church.

So how should Christians, and churches, respond to this? As I said above, I have no argument with Google's use of language here. I don't think they've done violence to the word "discriminate", and I think it's clear that our church does discriminate in our employment practices on the basis of sex, religion and gender identity, among other things. (For a list of the ways in which we discriminate here at Clearnote Church, check 1 Timothy 3.)

What is at issue here, really, is Google's discrimination. Google is obviously discriminating between organizations that want to use their services, and they deny access to their services to those organizations who, because of their religious convictions, have hiring practices that Google doesn't like. Are they doing so in a way that is illegal, or should be illegal? If so, how should Christians respond?

Here's a post written by a Jewish man in Minnesota. He claims that Google's cloud services are defined in Minnesota law as a "public accommodation", and, as such, cannot be denied to someone on the basis of religion. Here's an excerpt:

Google is defined as a public accommodation in Minnesota Statutes 363A.03 sub. 34:

Place of public accommodation. “Place of public accommodation” means a business, accommodation, refreshment, entertainment, recreation, or transportation facility of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public.

Google for Non-Profits is on the public internet and offers their services to the public. Denying their services, a public accommodation, based upon religion, is a violation of law in Minnesota pursuant to Minnesota Statutes 363A.11 sub. 1(a)1:

It is an unfair discriminatory practice…to deny any person the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation because of…creed [or] religion…

I believe there may be similar laws in the state of Indiana, and I'd be grateful if someone would post them in the comments. In any case, it appears to me that the man has a good case, and that Google may actually be discriminating illegally against certain institutions on the basis of religion. So one way to respond would be for someone to research the matter more fully and, potentially, to file a suit against them. I will freely admit that I have no intentions of doing so in the near term, but I'd be very grateful if someone would!

That said, I am very ambivalent about non-discrimination laws in this country, and I'm concerned that they have virtually no check to their growing powers. As one friend recently pointed out, they cut in whichever direction the wind happens to be blowing.

But yes, I will be looking for another cloud service provider to host our email, contacts and calendars.