Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 1906 - George N. Leighton, Judge.
Before WOOD, JR. and POSNER, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
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)(1) (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 origin 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).
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 a hospital. Presently 93% of academic administrators are non-Jesuit, as are 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 ...