May 17, 2022

Volume XII, Number 137

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May 16, 2022

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9th Circuit Provides Important Reminders for Religious Employers

Recently, the 9th Circuit applied, in an unpublished opinion, the U.S. Supreme Court’s broad definition of minister for purposes of the “ministerial exception.” Under the ministerial exception, religious institutions have a First Amendment right “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

The Supreme Court has broadly defined what employment positions are eligible for the application of the exception. In determining whether employees at religious schools are ministers, the Supreme Court has explained that the core consideration is their “role in conveying the Church’s message and carrying out its mission.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2063 (2020) (citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 192 (2012)). “[E]ducating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Id., at 2064.

The 9th Circuit in Orr v. Christian Brothers High School, Inc. held the plaintiff qualified as a minister for purposes of the ministerial exception, focusing on the employee’s role in conveying the Church’s message and carrying out its mission. The court reasoned that the plaintiff participated in religious services and activities, aiding the school in developing a faith-based community and inculcating faith-based teachings. He had supervisory authority over aspects of religious instruction and programming. He also received religious education as part of his role. The court held that based on the U.S. Supreme Court’s formulation, the plaintiff qualified as a minister under the ministerial exception.

In this case, while the plaintiff made harassment claims that could be deemed to survive the ministerial exception, the 9th Circuit held that the allegations were “so intertwined with the employment decisions that the claims cannot be separated.”

The 9th Circuit also upheld the district court’s finding that the religious school did not waive its statutory exemption under the California Fair Employment and Housing Act (FEHA) for non-profit religious corporations. The court pointed out that the school’s employee handbook never explicitly referenced FEHA and makes no promises it is bound by FEHA.

The case is a good reminder for non-profit religious employers both in protections for employment decisions but also in reviewing employee handbooks to ensure statutory exemptions are appropriately protected.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 343
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About this Author

Dylan B. Carp, Jackson Lewis, unfair competition lawyer, trade secrets law attorney
Principal

Dylan B. Carp is a Principal in the San Francisco, California, office of Jackson Lewis P.C. He is a Certified Specialist in Appellate Law by The State Bar of California Board of Legal Specialization.

Mr. Carp has argued 10 appeals before federal and state courts. In addition to appeals and writs, Mr. Carp focuses his practice on unfair competition and trade secrets law, having second chaired a three-month unfair competition jury trial.

Mr. Carp also handles all aspects of litigation in...

415-796-5425
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