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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)


STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5856

February 27, 1981

CONSTITUTIONAL LAW:

Const 1963, art 1, Sec. 2

Const 1963, art 1, Sec. 4

Const 1963, art 11, Sec. 5

CIVIL RIGHTS:

Right to consideration for employment or promotion without regard as to religious belief or nonbelief

Except for employment of chaplains to serve the needs of the persons detained or confined in state institutions, a state agency may not inquire of either an applicant for employment or an employee being considered for promotion as to his or her religious beliefs or nonbeliefs.

Honorable D. C. Hollister

State Representative

The Capitol

Lansing, Michigan

You have asked my opinion on the following question:

'Is it lawful for a state agency, during the course of a pre-employment (promotional) interview to ask state employees questions regarding their religion, church attendance habits and what church in the community they will join if they are hired, when religion is not a bona fide occupational qualification?'

Const 1963, art 1, Sec. 2, provides as follows:

'No person shall be denied the equal protection of the laws; nor shall any person be denied the enjoyment of his civil or political rights or be discriminated against in the exercise thereof because of religion, race, color or national origin. The legislature shall implement this section by appropriate legislation.'

Const 1963, art 1, Sec. 4 states in part:

'. . . The civil and political rights, privileges and capacities of no person shall be diminished or enlarged on account of his religious belief.'

Also, see Const 1963, art 11, Sec. 5, which provides in part:

'. . . No appointments, promotions, demotions or removals in the classified service shall be made for religious, racial or partisan considerations.'

In OAG, 1973-1974, No 4783, p 69 (July 19, 1973), it was concluded:

'The Constitution of 1963, while it created no new civil rights [See Pompey v General Motors Corporation, 385 Mich 537, 559, 189 NW2d 243, 254 (1971), fn 20] did, by this section, give constitutional sanction to the pre-existing civil right of every citizen to be free from discrimination in matters of employment.'

However, it should be noted that pursuant to Const 1963, art 4, Sec. 47, 'the legislature may authorize the employment of chaplains in state institutions of detention or confinement.' In order to serve the needs of persons in detention or confinement, it would be appropriate to make inquiry of the religious affiliation of particular chaplains in this context.

It is, therefore, my opinion that, except as provided in Const 1963, art 4, Sec. 47, a state agency may not inquire of either an applicant for employment or any employee being considered for a promotion as to his or her religious beliefs or nonbeliefs.

Frank J. Kelley

Attorney General

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