Appeal from the United States District Court for the District of Hawaii. D.C. No. CV-90-00539-ACK. Alan C. Kay, District Judge, Presiding. Original Opinion Reported at:,.
Before: James R. Browning, William A. Norris and Stephen Reinhardt, Circuit Judges. Opinion by Judge Browning.
AMENDED OPINION AND ORDER
Bernice Pauahi Bishop was a member of the Hawaiian royal family and, at the time of her death in 1884, the largest landowner in Hawaii. Mrs. Bishop's will provided that the bulk of her estate should be placed in a charitable trust "to erect and maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for boys and one for girls, to be known as, and called the Kamehameha Schools." Mrs. Bishop's will also directed that "the teachers of said schools shall forever be persons of the Protestant religion."*fn1
Carole Edgerton, who is not a Protestant, contacted the Schools to apply for an advertised position as a substitute French teacher. Edgerton was informed of the Protestant-only requirement and filed a charge of religious discrimination with EEOC. EEOC attempted conciliation, but the Schools informed the Commission they were bound by Mrs. Bishop's will.
EEOC filed suit, alleging religious discrimination in employment in violation of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).*fn2 The Schools conceded Mrs. Bishop's will requires discrimination in employment contrary to § 2000e-2(a)(1), but sought to bring themselves within three exemptions provided elsewhere in the Act: (1) § 2000e-1, which provides that the equal employment provisions of the Act do not apply to employment by a "religious . . . educational institution" of individuals of a particular religion to carry on its activities; (2) § 2000e-2(e)(1), which provides that "it shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of [ ] religion" if religion is "a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise;" and (3) § 2000e-2(e)(2), which provides that "it shall not be an unlawful employment practice for a school . . . to hire and employ employees of a particular religion . . . if the curriculum of such school . . . is directed toward the propagation of a particular religion."
The parties agreed to litigate the applicability of the three exceptions before considering the merits of Edgerton's claim. EEOC and the Schools filed cross-motions for summary judgment. The district court found the Schools exempt on all three grounds. EEOC v. Kamehameha Schools/Bishop Estate, 780 F. Supp. 1317 (D. Haw. 1991).
Ordinarily, "we review the district court's grant of summary judgment de novo." EEOC v. Townley Eng. & Mfg. Co., 859 F.2d 610, 613 (9th Cir. 1988). However, here we are reviewing, at least in part, Conclusions of ultimate fact reached by a district court when granting summary judgment in a non-jury case. We need not decide whether a different standard of review applies with respect to such Conclusions; the result would be the same whether we applied a de novo or clearly erroneous standard.
We construe the statutory exemptions narrowly, Korherr v. Bumb, 262 F.2d 157, 162 (9th Cir. 1958), and the Schools bear the burden of proving they are exempt, see United States v. First City Nat'l Bank, 386 U.S. 361, 366 (1967) (party seeking benefit of exemption from statute bears burden of proof); EEOC v. Boeing Co., 843 F.2d 1213, 1214 (9th Cir. 1988) (party seeking benefit of bona fide occupational qualification exception bears burden of proof).
We conclude the Schools failed to establish their entitlement to any of the three exemptions claimed, and reverse.
II. Exemption for Religious Educational Institutions.
The district court weighed the religious characteristics of the Schools against their secular characteristics and concluded the Schools were exempt under § 2000e-1 as religious educational institutions because the purpose and character of the Schools is primarily religious.*fn3 780 F. Supp. at 1324-26. In applying § 2000e-1 the district court adopted the approach approved by this court in Townley, 859 F.2d at 618, of weighing "all significant religious and secular characteristics . . . to determine whether the corporation's purpose and character are primarily religious." We reaffirm that approach. We differ ...