MEMORANDUM AND ORDER
This Memorandum and Order addresses the Motion for Summary Judgment, Paper No. 16, that Defendant Villa St. Catherine’s Inc. d/b/a St. Catherine’s Nursing Center (the “Nursing Center”) filed; Plaintiff Lori Kennedy’s Opposition to Defendant’s Motion for Summary Judgment, Paper No. 25; and the Nursing Center’s Reply Memorandum in Support of its Motion for Summary Judgment, Paper No. 28. For the reasons stated herein, Defendant’s Motion for Summary Judgment is GRANTED IN PART and DENIED IN PART. This Memorandum and Order disposes of Paper Nos. 16, 25, and 28.
I. BACKGROUND
Plaintiff was employed as a geriatric nursing assistant at the Nursing Center from 1994 until May 2007. 1st Am. Compl. ¶¶ 6-7, Paper No. 4. At work, she wore long skirts and covered her head. Id. ¶ 9. *406 According to Plaintiff, her clothes were a “function of her religion” as a member of the Church of the Brethren, and they “did not interfere with her professional responsibilities.” Id. ¶¶8 & 17. Yet, Plaintiff claimed that the Nursing Center’s Assistant Director of Nursing Services, later promoted to Director of Nursing Services, repeatedly commented on Plaintiffs garb. Id. ¶ 11. Specifically, Plaintiff alleged that the Director told her that her clothes were “inappropriate in a Catholic institution ... made the residents’ family members uncomfortable, ... and that Plaintiff should conform to a more traditional mode of dress.” Id. ¶ 12. The Director purportedly made these comments in front of Defendant’s Administrator/CEO, who took no action. Id. ¶ 13. Defendant terminated Plaintiffs employment on May 17, 2007. Id. ¶ 18.
Plaintiff filed a Complaint in federal court on November 13, 2009. 1 Paper No. 1. As amended, the Complaint alleged unlawful harassment, retaliatory discharge and discriminatory discharge under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2003), 1st Am. Compl. ¶¶ 24, 26 & 27, claiming that Defendant’s Director’s misconduct was “pervasive and rendered Plaintiffs work environment hostile and/or abusive,” and “caused Plaintiff to lose income and other monetary benefits of employment .... and to experience emotional pain, suffering, inconvenience, mental anguish and loss of enjoyment of life.” Id. ¶¶ 15 & 19-20. Plaintiff also claimed that Defendant’s Director’s misconduct was “outrageous, malicious, wanton, reckless and/or in willful disregard for Plaintiffs rights,” entitling Plaintiff to attorney’s fees and litigation costs. Id. ¶¶ 21, 22.
Defendant Nursing Center moved for summary judgment, arguing that Plaintiff failed to state a claim against the Nursing Center because the Nursing Center “is a religious organization [that] is exempt from Title VII’s prohibition against employment discrimination based on religious beliefs under 42 U.S.C. § 2000e-l(a).” Def.’s Mot. 1. In opposition to Defendant’s Motion for Summary Judgment on Counts I and II, Plaintiff insists that Title VII’s religious organization exemption does not extend to harassment or retaliation for complaints about harassment. PL’s Opp’n 6, 10. While conceding that the Supreme Court concluded that “[w]orkplace harassment was ... within the ambit of Title VII,” id. at 2, Plaintiff alleges: “A review of the history of [the exemption] does not reveal that Congress was interested in protecting a religious organization’s ability to harass its employees, only the organization’s ability to hire and fire persons in accordance with its religious principles.” Id. (citing 110 Cong. Rec. 2585-90 (1964)). Plaintiff notes that Senator Erwin, who sponsored the 1972 amendment to the religious organization exemption (which extended the exemption to all activities of a religious organization, not just “religious activities”), said that “ ‘the only effect’ ” that the amendment would have “ ‘would [be] to exempt religious corporations, associations, and societies from the application of [Title VII] insofar as the right to employ people of any religion they see fit is concerned.’ ” Id. at 7 (quoting 118 Cong. Rec. 4503 (1972)). However, Plaintiff conceded that the Nursing Center is a religious institution and that summary judgment should be granted to Defendant on Count III. Id. at 1 & n. 2.
*407 On April 9, 2010, Defendant filed its reply to Plaintiffs opposition, contending that “[t]he religious organization exemption bars Kennedy’s claims for retaliation and harassment in the same manner as her claim for discrimination.” Defi’s Reply 2. As Defendant sees it, excluding harassment from the religious organization exemption “undermines the very purpose of the religious organization exemption to eliminate government interference with religious organizations with respect to religion.” Id. at 4. Alternatively, Defendant claims that “if harassment claims were not included in the statute, there would be no basis for this Court’s jurisdiction” over Count I. Id. at 4 n. 3.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is only proper when “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see Meson v. GATX Tech. Servs. Corp.,
If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party’s case, the burden shifts to the nonmoving party to identify specific facts showing that there is a genuine issue for trial. The existence of only a “scintilla of evidence” is not enough to defeat a motion for summary judgment. Instead, the evidentiary materials submitted must show facts from which the finder of fact reasonably could find for the party opposing summary judgment.
Anderson v. Liberty Lobby, Inc.,
III. DISCUSSION
Under Title VII, it is “an unlawful employment practice for an employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Further, 42 U.S.C. § 2000e-3(a) provides that it is unlawful for an employer “to discriminate against any individual ... because he has opposed any practice made an unlawful employment practice by [Title VII], or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” The aggrieved employee may file a civil action against his or her employer, after taking the appropriate steps before the Equal Employment Opportunities Commission. 42 U.S.C. § 2000e-5(f).
To be actionable under 42 U.S.C. § 2000e-2(a)(l), discrimination need not be “economic” or “tangible.”
Harris v. Forklift Systems, Inc.,
In this regard, federal courts and the EEOC have viewed religious harassment as “a form of religious discrimination prohibited under Title VII.”
Fontana v. Johnny’s Pizza House,
No. 07-2046,
In at least some instances, Title VII does not subject religious institutions to liability for religious discrimination. See 42 U.S.C. § 2000e-l(a). 42 U.S.C. § 2000e-l(a) provides that Title VII of the Civil Rights Act of 1964, as amended in 1972,
shall not apply to ... a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.
This is a narrow exception; it does not permit religious institutions to discriminate based on gender, race, or national origin.
Rayburn v. Gen. Conference of Seventh-Day Adventists,
*409
This Court begins with the plain language of the statute to “enact the intent of the legislature in interpreting [the] statute.”
Antonio v. Security Servs. of Am., LLC,
No. AW-05-2982,
The Fourth Circuit summarized the legislative history as follows:
The original Act passed by the House in 1964 excluded religious employers from coverage altogether, H.R.Rep. No. 914, 88th Cong., 1st Sess. (1964), reprinted in 1964 U.S. Cong. & Admin. News, 2355, 2391, 2402. The final version excluded such employers only with respect to discrimination based on religion, and then only with respect to persons hired to carry out the employer’s “religious activities.” P.L. 88-352, Title VII, § 702, 78 Stat. 255 (July 2, 1964), reprinted in 1964 U.S. Cong. & Admin. News 287, 304. In 1972 the statute was amended to delete the word “religious,” P.L. 92-261 § 3, 86 Stat. 103 (March 24, 1972)....
Rayburn,
[B]ut Congress specifically rejected proposals to broaden further the scope of the exemption. Subcommittee on Labor of the Committee on Labor and Public Welfare of the United States Senate, Legislative History of the Equal Employment Opportunity Act of 1972 (Comm. Print 1972), at 1229-1230, 1258-1260. To the contrary, the analysis pertaining to § 702 states clearly that “Such organizations remain subject to the provisions of Title VII with regard to race, color, sex or national origin.” Section-by-Section Analysis of H.R. 1946, the Equal Employment Opportunity Act of 1972, reprinted in id. at 1844, 1845.
Rayburn,
Additionally, the overall purpose of the 1972 amendment was “to preserve the statutory power of sectarian schools and colleges to discriminate on religious grounds in the
hiring
of all their employees.”
King’s Garden, Inc. v. Fed. Commc’ns Comm’n,
It is true that the 1972 amendment to Title VII expanded the scope of the exception to cover religious institutions’ employment of individuals “to perform work connected with” any of the institutions’ activities, not only its religious activi
*410
ties, so as to, as Senator Erwin said in sponsoring for the amendment, “take the political hands of Caesar off of the institutions of God.” 118 Cong. Rec. 4503. But, the legislative history also indicates that Congress only intended the amended exception to exempt religious institutions from Title VII “insofar as the
right to employ
people of any religion they see fit is concerned.”
3
Id.
(quoting Sen. Ervin) (emphasis added). And, the Supreme Court has stated that “Congress’ purpose was to minimize governmental ‘interfere[enee] with the
decision-making process
in religions.’ ”
Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos,
Although neither the parties nor the Court in its research has identified case law that addresses the precise question presented here — whether the exemption applies to alleged religious harassment by a religious institution
4
— case law is in accord with the legislative history that the exemption applies to religious institutions’ employment decisions made on religious grounds.
E.g., Petruska v. Gannon Univ.,
Moreover, in matters of statutory construction, “[t]he administrative interpretation of the Act by the enforcing agency is entitled to great deference.”
Griggs v. Duke Power Co.,
In EEOC Dec. No. 83-6, the Commission considered whether it had jurisdiction to hear an employee’s claim of unlawful discharge, given the religious institution exemption, i.e., § 2000e-l(a), when the employee alleged that a religious institution “engaged in an unlawful employment practice ... by discharging [the employee] be
*412
cause of his religious beliefs.”
5
The term is often used synonymously with ‘hiring’ in the legislative history and in the case law concerning the Section 702 exemption. However, ... the legislative history [does not] directly address[] the question of whether the term “employment” — and, consequently, the exemption — applies only to hiring or more broadly encompasses other terms and conditions of employment, including discharge.
Id. at *3 (footnotes omitted).
The Commission continued, id. (emphasis added):
It thus becomes necessary to consider whether, in using the term “employment” to describe the exempt activity, Congress would have intended to create a situation in which a religious association would be permitted to initially hire an individual professing particular religious beliefs but would be precluded from subsequently discharging that individual if his/her beliefs changed and were no longer compatible with the religious doctrine of the employer. In the absence of external guidance or precedent, the logical answer is that such a result would not be in keeping with the intent of Congress in enacting the exemption contained in Section 702. In enabling a religious organization to lawfully exercise a preference based on religion at least with regard to hiring decisions, Congress’s intent was to allow such an organization to create and maintain a work force composed of individuals of compatible religious belief
The Commission concluded that “the term ‘employment’ in Section 702 of Title VII includes decisions to discharge as well as to hire where such decisions are based on an individual’s religious beliefs,” and therefore, “the discharge decision falls within the Section 702 exemption,” and outside the jurisdiction of the EEOC. Id. at *3-4.
Notably, although the Commission stated that the employee claimed that “he was harassed and unlawfully discharged from his position” with a religious institution, it did not address harassment as a separate charge. And, the Commission expressly stated that it did “not reach a determination of whether the use of the term ‘employment’ provides an exemption *413 with regard to any other terms or conditions of employment.” Id. at *3 n. 6. Thus, although the Commission did not reach any conclusions—or even address— whether harassment fell within the scope of “employment” for purposes of the religious institution exemption, it is instructive that the Commission characterized the legislative intent as to “enable[e] a religious organization to lawfully exercise a preference ” and “to allow [a religious] organization to create and maintain a work force composed of individuals of compatible religious beliefs.” Id. at *3. Unlike decisions to employ or fire based on religious beliefs, harassment is not a legitimate part of creation or maintenance of a workforce composed of individuals of compatible religious beliefs. Nor could Congress have considered it a legitimate way to “exercise a preference.” See id. Moreover, seventeen years later, in EEOC Compliance Manual § 2, 6 the Commission stated definitively that the religious organization “exemption only applies to hiring and discharge, and does not apply to terms, conditions, or privileges of employment, such as wages or benefits.” Clearly, “harassment” during employment affects the “condition” of employment.
Here, in Count I, Plaintiff alleges religious harassment in violation of Title VII by the Nursing Center. 1 st Am. Compl. ¶ 24. Specifically, Plaintiff complains that during her employment, her superiors criticized the attire she wore in adherence to her religious beliefs.
Id.
¶¶ 11-12. The alleged harassment did not involve discriminatory employment decisions (e.g., a decision not to hire or promote, or a decision to terminate) that Congress intended to exclude from the purview of Title VII.
See
118 Cong. Rec. 4503; EEOC Dec. No. 83-6,
In Count II, Plaintiff alleges retaliatory discharge in violation of Title VII, claiming that the Nursing Center “terminated Plaintiffs employment because she resisted, protested and complained” about the alleged harassment by the Nursing Center. 1st Am. Compl. ¶ 26. Because, as discussed supra, religious harassment by a religious institution is a violation of Title VII, and 42 U.S.C. § 2000e-3(a) makes it unlawful for an employer “to discriminate against any individual” for opposing a violation of Title VII, the Nursing Center may be liable under 42 U.S.C. § 2000e-3(a). Therefore, the Nursing Center is not entitled to judgment as a matter of law. Defendant’s Motion for Summary Judgment as to Count II is DENIED.
In Count III, Plaintiff alleges discriminatory discharge in violation of Title VII by the Nursing Center, claiming that “Defendant terminated Plaintiffs employment because of her religion.” 1 st Am. Compl. ¶27. As noted, Plaintiff concedes that the Nursing Center is a religious institution and that summary judgment should be granted to Defendant on Count III. Pl.’s Opp’n 1
&
n. 2. I agree. It is undisputed that the Nursing Center is a religious institution,
see id.;
Def.’s Mem.
*414
in Support of its Mot. for Sum. J. 2-4, Paper No. 16-1. Religious institutions are exempt from liability for discriminating “with respect to the employment of individuals of a particular religion.... ” 42 U.S.C. § 2000e-l(a);
Smith v. Raleigh Dist. of N.C. Conf of United Methodist Church,
In sum, Defendant’s Motion for Summary Judgment is DENIED as to Counts I and II and GRANTED as to Count III.
Notes
. Plaintiff filed her Complaint against the Nursing Center and Ascension Health, but she filed a Stipulation of Dismissal with prejudice as to Ascension Health, Paper No. 13, which the Court approved on February 4, 2010, Paper No. 14.
. The EEOC withdrew the proposal "in the face of opposition from members of Congress and from various religious organizations concerned about potential First Amendment problems with regard to extending the guidelines to cover religion.” Lex K. Larson, 3 Employment Discrimination § 55.05 n. 3 (2d ed. 2009).
. The debate statements of the legislator who sponsored the language that Congress enacted “are an authoritative guide to the statute’s construction."
North Haven Bd. of Ed. v. Bell,
. In
Hopkins v. Women’s Division, General Board of Global Ministries,
. The EEOC decision predates
EEOC Compliance Manual § 2,
discussed
infra,
and court decisions stating that the exemption applies to religious institutions' decisions to terminate, or not to promote, based on religion.
E.g., Hall v. Baptist Mem’l Health Care Corp.,
. The purpose of Section 2 is to "provide guidance and instructions for investigating and analyzing coverage, timeliness, and other threshold issues that are generally addressed when a charge is first filed with the EEOC.” EEOC Compliance Manual § 2.