iIn its long-waited decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a unanimous U.S. Supreme Court on January 11, 2012, held that an employment discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (“EEOC”) on behalf of a teacher in a Lutheran church school against the church was prohibited by the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution.
Cheryl Perich alleged that the church had fired her based upon her narcolepsy in violation of the Americans with Disabilities Act. Having found probable cause to believe she was right, the EEOC took up the case on her behalf and sued the church in federal court. While the trial court found Ms. Perich to be a “ministerial employee” of the church and dismissed the EEOC’s complaint, the Sixth Circuit Court of Appeals vacated that decision and remanded the case for a trial. The church appealed, alleging that the First Amendment’s Establishment and Free Exercise Clauses prohibit discrimination claims brought under federal employment discrimination laws by ministerial employees against their church employers and that Ms. Perich was such a ministerial employee.
The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. The first of those clauses is referred to as the “Establishment Clause” and the second as the “Free Exercise Clause”.
While several circuits of the U.S. Court of Appeals previously had held that the Establishment and Free Exercise Clauses apply to employment discrimination suits brought against churches by their ministerial employees, the Supreme Court had never decided the issue. The Court’s decision in this case, therefore, is a significant stake in the ground for churches and other religious employers in their relationships with their ministerial employees.
As to what employees are “ministerial” for purposes of the Establishment and Free Exercise Clauses’ application to employment discrimination claims, however, the Court did not provide as absolute a test. The decision leaves lower courts with plenty of room to decide which employees of a church or other religious organization are ministerial and which are not.[1]
The facts. The facts of Ms. Perich’s case made it relatively easy for the Court to conclude that she was a ministerial employee. It took six years for her to complete her prerequisite religious training at a Lutheran college, including eight college-level courses in subjects such as biblical interpretation, church doctrine, and the ministry of the Lutheran teacher. To be endorsed and commissioned by her local synod, also a prerequisite to her teaching position, she had to pass an oral examination by a faculty committee at the Lutheran college and be elected by a Lutheran congregation, which thereby recognized God’s call to her to teach. Her call, moreover, could be rescinded only by a supermajority vote of the electing congregation, a protection offered to ministers of the church to allow them to “preach the Word of God boldly.”
Ms. Perich’s own conduct helped confirm her ministerial status. She claimed a special housing allowance on her taxes that was available only to employees earning their compensation “in the exercise of the ministry,” according to the church. And, following her termination by the school, she submitted a form to the synod, on which she said, “I feel that God is leading me to serve in the teaching ministry …. I am anxious to be in a teaching ministry again soon.” Both of those representations proved important to the Court.
The Court noted that Ms. Perich’s job duties “reflect[ed] a role in conveying the church’s message and carrying out its mission”. She was charged with “lead[ing] others toward Christian maturity” and “teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran church”. She taught religion four days a week, led her students in prayer three times a day, took them to a school-wide chapel service, and twice a year led that service, choosing the liturgy, selecting the hymns and delivering a short message based on verses from the Bible. In her last year of teaching, she also led her class in a brief devotional exercise each day.
The decision. For all those reasons, the Supreme Court concluded that Ms. Perich was a ministerial employee of the church. In its analysis, the Court emphasized the relevance of her ordination and commission, her “significant religious training” and the “recognized religious mission underl[ying] the description of [her] position”. Her religious duties consumed only about 45 minutes each day; she spent the rest of it teaching what the Court called “secular” subjects. But, while “[t]he amount of time an employee spends on particular activities is relevant in assessing that employee’s status,” the Court concluded, “that factor cannot be considered in isolation …”
The EEOC also had alleged that the church’s articulated reason for having fired Ms. Perich was pretextual. The Court dismissed that argument, noting that the theory “misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who are ministers of the faithful, a matter strictly ecclesiastical … is the church’s alone”.
Significantly, the Court noted that it was expressing no view as to whether the ministerial exception prohibits other types of suits, “including actions by employees alleging breach of contract or tortious conduct by their religious employers”. That caveat leaves open the door to such suits by creative plaintiffs’ lawyers.
The take-aways. Churches and other religious employers can take away from the Hosanna-Tabor decision that employees who qualify as ministerial may not maintain federal employment discrimination lawsuits against them based upon any protected characteristic. The case arose under federal employment discrimination law, but the effect of the Court’s decision is likely to reach to claims brought under state employment discrimination laws, as well. Many states, including Wisconsin, have held that their employment discrimination laws may not be used by ministerial employees, and some categories of lay employees, to sue the employees religious organization-employers. Even some of those states, however, will need to reconsider their laws in light of the Supreme Court’s decision in Hosanna-Tabor.
While the Court gave guidance as to what criteria will qualify an employee as ministerial, the test of ministerial status, or at least where the line is between ministerial and non-ministerial, is not clear. The percentage of a workday that an employee performs ministerial duties is one criterion. But disparities is not where other criteria more weightily favor ministerial status.
In order to be able to establish those other criteria, the church or religious employer should articulate in writing the ministerial requirements of the particular job and those qualifications and credentials a successful candidate will have to have in order to be hired.
[1] In their two concurring opinions, however, Justices Thomas, Alito and Kagan took the position that the courts must defer to a church’s good faith determination as to which of its employees are ministerial.
