U.S. Supreme Court Broadens Religious Employer Defense in Employment Discrimination Lawsuits
On July 8, 2020, in a 7-2 opinion, the U.S. Supreme Court in Our Lady of Guadalupe Sch. v. Morrissey-Berru issued a victory for religious employers, seeking to limit the application of federal anti-discrimination laws. The recent opinion strengthened the concept that the First Amendment precludes courts from hearing disputes brought by employees who have “vital” religious responsibilities while employed, despite the fact that the employees do not bear a “minister” title. Justice Alito authored the opinion and was joined by Chief Justice Roberts and Justices Kagan, Kavanaugh, Gorsuch, Breyer, and Thomas. Justices Ginsburg and Sotomayor dissented.
The First Amendment Religion Clauses in the Employment Context
The First Amendment states that “Congress shall make no law respecting an establishment of religion . . . .” The U.S. Supreme Court has previously held that the First Amendment means religious institutions may “decide for themselves,” without government interference, “matters of church government as well as those of faith and doctrine.” In the employment context, this means that courts may not decide disputes brought by employees holding certain important positions in religious institutions.
This is called the “ministerial exception.” Because “[t]he religious education and formation of students is the very reason for the existence of most private religious schools,” last week’s Morrissey-Berru opinion found that “the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.” Accordingly, “[j]udicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”
“Ministerial Exception” Applies to Teachers in Religion-Based Schools
The Morrissey-Berru opinion was considered and decided together with St. James Sch. v. Biel, which generally raised the same issues and had largely identical facts. Morrissey-Berru brought a lawsuit against her employer, a Catholic school, when she was demoted and her contract was not renewed allegedly so the school could hire a younger teacher—i.e., an alleged violation of the Age Discrimination in Employment Act. Biel brought a lawsuit against her employer, another Catholic school, when she was allegedly terminated because she informed the school she needed a leave of absence to undergo cancer treatments—i.e., an alleged violation of the Americans with Disabilities Act. In both lawsuits, the schools defended themselves with the “ministerial exception.”
In a previous case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 190-91 (2012), the Supreme Court considered four factors for whether to apply the “ministerial exception:” (1) “the formal title given [to the employee] by the Church;” (2) “the substance reflected in that title;” (3) “[his/her] own use of that title;” and, (4) “the important religious functions [he/she] performed for the Church.”
In the recent cases, neither Morrissey-Berru nor Biel held the title “minister,” had significant religious training, or was a recognized “religious leader.” For those general reasons, the Ninth Circuit Court of Appeals found that the “ministerial exception” did not apply to either Morrissey-Berru or Biel.
The Supreme Court in Morrissey-Berru found, however, that the Ninth Circuit applied the Hosanna-Tabor factors too rigidly. To be sure, “a variety of factors may be important” to the analysis, and those specific facts discussed in Hosanna-Tabor were merely “circumstances [the Court] found relevant in that case.” In that regard, while neither Morrissey-Berru nor Biel were “ministers” or had religion-based college degrees, the Court concluded that their teaching duties necessarily included religious instruction. Both teachers attended prayer services with their students, prepared students for Catholic Church services, and took “religious education courses” at the request of their schools. The teachers’ contractual agreements with the schools generally stated that the schools’ mission was to “promote” the Catholic faith. In that regard, the schools assessed the teachers’ performance “under religious standards,” and both schools’ faculty handbooks reiterated that the students’ “religious development” was the schools’ primary goal. Biel was Catholic, but Morrissey-Berru alleged that she was not a “practicing Catholic.”
The Supreme Court stated that “[w]hat matters, at bottom, is what an employee does,” and “educating 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.” The Court observed that there was “abundant record evidence that both [employees] performed vital religious duties,” on the facts above. Notably, the Court found that “both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the school’s definition and explanation of their roles is important” because “judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performance a particular role in every religious tradition.”
The majority opinion of the Court noted that “[i]n considering the circumstances of any given case, courts must take care to avoid ‘resolving underlying controversies over religious doctrine,” (n.10), including whether the employee is a “practicing” member of the particular religious faith involved. For that matter, Justice Thomas’s concurring opinion, with which Justice Gorsuch joined, reiterated the “view that the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’”
Effectively, Hosanna-Tabor focused more on the employee’s titles and specific duties, while Morrissey-Berru focused more on the employer’s religious mission. So what primarily matters for religious employers now in employment discrimination cases, arguably, is whether the employee is a part of or advances the employer’s stated mission. If so, the employer may be able to invoke the “ministerial exception.”
Recognizing this broader application of the “ministerial exception,” Justice Sotomayor, in her dissenting opinion with which Justice Ginsburg joined, argued that religious employers would now get to decide when the exception applies and when it doesn’t. Justice Sotomayor stated, “[i]n foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single considerations: whether a church thinks its employees play an important religious role.” She further eschewed the “extraordinarily potent” “ministerial exception,” as expanded by the majority, because “an employer need not cite or possess a religious reason [for its employment decisions] at all; the ministerial exception even condones animus.” Justices Sotomayor and Ginsburg would therefore maintain the more limited application of the “ministerial exception” to “separate leaders who ‘personify’ a church’s ‘beliefs’ or who ‘minister to the faith’ from individuals who simply relay religious tenets.”
Take Away for Religious Employers
Based on the Supreme Court’s majority reasoning, a religious employer should take at least the following steps to help capitalize on the broadened “ministerial exception:”
Include clear statements of the employer’s religious mission, as well as the employees’ role in that mission, in employee handbooks and job descriptions, and obtain / maintain employees’ written acknowledgments of the same;
Include clear statements of the employer’s religious mission, as well as the employees’ role in that mission, in any employment agreements signed by employees;
Provide dedicated and documented training to employees regarding the employer’s religious mission and the employee’s role in the same; and,
Document employee performance in the context of religious standards.
In this way, a religious employer will be able to argue that the employee plays a vital role in the religious mission of the employer more credibly than with backward-looking declarations in litigation supporting employment decisions. Evidence that is contemporaneous with the events in question is often more persuasive to courts than testimony offered only during the context of a dispute. As always, employers should also consult with their employment counsel when making significant employment decisions, especially when relying on judicially created doctrines such as the “ministerial exception.”