Question: Pime v. Loyola University of Chicago 803 F.2d 351 (7th Cir. 1986)

The employee, Pime, brought suit against the university under Title VII for religious discrimination in the hiring of tenure track professors in its College of Arts and Sciences, Department of Philosophy. The Department passed a resolution reserving its next three vacancies in tenure track teaching positions for Jesuits, members of the Society of Jesus. The court held the Jesuit requirement to be a BFOQ and not violative of Title VII.

Fairchild , J.

Loyola asserts 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) permitting 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)(1) permitting an employer to employ an individual "on the basis of his religion, gender or national origin in those certain situations where religion, gender or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." (BFOQ) After a bench trial, the district court granted judgment in favor of Loyola, finding that being a Jesuit is a BFOQ. Employee challenges the finding of BFOQ. Loyola challenges the trial court's finding that it could not rely on subsection (e)(2). 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 interests 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 notfor-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 the academic administrators are non-Jesuits, as are 94% of the teaching staff. 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 chair reported to a meeting of the department and 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 decisions as to the kind of persons we should seek to hire for these openings. 1. The first is a need which the Chair 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 strong we may feel about "the autonomy of philosophy," to acknowledge our association with this tradition. One very basic and obvious way of making such acknowledgments 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. Four out of 31 is not an adequate Jesuit presence in the Department. In the judgment of the Chair, 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. 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-level course offerings. It needs to be offered annually both at Lake Shore Campus and Water Tower Campus.

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 in each campus. Consequently, we should seek persons who have special competence and interest in teaching courses in these areas. The Chair's recommendation is that we seek to hire persons who will help teach in these two areas. These two kinds of needs are different, though not incompatible. The Chair's recommendation 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 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. 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 chair when there would be a full-time tenure track position for him. The chair 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. 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 on discrimination on account of religion. 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 and character of the institution that students be assured a degree of contact with teachers who have received the training and accepted the obligation 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 jobs at issue. Yet it seems to us 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 7 out of 31 is a reasonable determination.

1. Does the decision make sense to you? Explain.

2. Since such a high percentage of Loyola's faculty and administrators are non-Jesuits, does it seem as if an argument could be made that the school has thereby given up its legitimate claim to have being Jesuit be a BFOQ?

3. As an employer, do you think you would have to face dealing with the policy adopted here making other employees or applicants feel unwelcome? If so, what would you do?