Discrimination Alert: Most Employees of Religious Institutions Remain Protected, At Least for Now
On March 5, 2021, the Supreme Judicial Court of Massachusetts (the SJC), issued a decision that prevents religious institutions from avoiding liability for unlawful discrimination against most employees. The decision, in the case of DeWeese-Boyd vs. Gordon College, SJC-12988, held that although Gordon College, a non-denominational Christian liberal arts college, was a religious institution entitled to certain protections under the law, not all its employees were “ministers” as to whom the laws against discrimination could not be applied.
The Ministerial Exception
As a general rule, an employer may not discriminate because of an employee’s protected status, such as race, age, religion, national origin, disability, sex, or sexual orientation, or because of an employee’s opposition to such discrimination. However, in order to protect religious institutions against interference by civil authorities, as is guaranteed by the Free Exercise Clause of the First Amendment to the U.S. Constitution, the doctrine of the ministerial exception is applied in appropriate cases – those involving ministers – and, effectively, denies those falling under the exception the protections of the anti-discrimination laws.
DeWeese-Boyd, an associate professor of social work at Gordon College, alleged that she was denied promotion because of her gender, her association with LGBTQ+ persons, and her opposition to her employer’s discriminatory policies and practices; and she sued Gordon College under the anti-discrimination laws. In response, Gordon College alleged that it was not subject to those laws because DeWeese-Boyd served the college as a minister.
As the SJC noted, to apply the ministerial exception could eclipse, and thereby eliminate, the civil law protections against discrimination. In contrast, a decision to not apply the exception could allow civil authorities to interfere with who is chosen to preach religious doctrine, a violation of the separation of church and state guaranteed under the First Amendment.
Mindful of this potential conflict, the SJC was forced to disentangle what it identified as a most difficult issue: Gordon College’s requirement that all its faculty integrate their Christian faith into their teaching and scholarship, even those of secular disciplines. As the SJC noted, if this integration requirement was sufficient to render an employee a minister, the ministerial exception would significantly expand the number of employees falling outside the protections of the anti-discrimination laws.
While recognizing that the parameters of the ministerial exception “remain somewhat unclear,” the SJC applied a functional analysis and concluded that DeWeese-Boyd, like most employees, was not a minister.
Application of the Functional Analysis
Relying on the U.S. Supreme Court’s recent decision in Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) and cases cited therein, the SJC concluded that, unlike employees in earlier cases, DeWeese-Boyd did not teach classes on religion, pray with her students, or attend religious services with them, nor did she ever hold herself out as a minister, lead students in devotional exercises, or lead chapel services. The SJC rejected, as not dispositive, both DeWeese-Boyd’s religious faith and training that were unrelated to or not required by her job, and Gordon College’s belated characterization of its faculty as ministers, noting that, in evaluating such characterization, a court need only credit an employer’s good faith / honest assertions and may reject those that are pretextual.
Ultimately, the SJC concluded that the requirement that Gordon faculty integrate the Christian faith into her teaching and scholarship was different “in kind, and not in degree” from the religious instruction and guidance at issue in cases in which the ministerial exception was held applicable by the U.S. Supreme Court. Rejecting Gordon College’s assertion regarding the breadth of the ministerial exception, the SJC distinguished between being a Christian academic and being a minister:
“It is our understanding that the ministerial exception has been carefully circumscribed to avoid any unnecessary conflict with civil law. In sum, we conclude that DeWeese-Boyd was expected and required to be a Christian teacher and scholar, but not a minister. Therefore the ministerial exception cannot apply as a defense to her claims…”
What this means for YOU
If you are an employee of a religious institution, most likely you are still protected by the laws against discrimination – unless you fall within the ministerial exception, e.g., teachers in religious primary schools who are expected to lead their students in prayer and teach them the tenants of their religion. It is, however, anticipated that the U.S. Supreme Court is not done with the balancing of religious freedom and other civil rights. As we have said before, stay tuned.