By Meghan Lehner, Cleveland Lehner Cassidy
Last month, the Supreme Court heard two cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, involving what’s known as the “ministerial exemption” to employment discrimination laws like Title VII, the ADEA, and the ADA. The exemption is designed to preserve the distinction between church and state by recognizing that religious groups have some constitutional freedom, primarily under the First Amendment and the Establishment Clause, to select their own leaders and run their own affairs free from government interference, even when those employment decisions may violate federal law.
Both cases we appealed from the Ninth Circuit. Morrissey-Berru, a teacher at Our Lady of Guadalupe School, brought a claim against the school under the ADEA after her teaching contract was not renewed. The district court granted summary judgment in favor of the school on the basis that Morrissey-Berru was a “minister.” The Ninth Circuit reversed the district court, concluding that Morrissey-Berru was not a “minister” because, while she had taken one course on the history of the Catholic church, she did not have any religious credential, training, or ministerial background. Given that she did not hold herself out to the public as a religious leader or minister, the Ninth Circuit declined to classify her as a minister for the purposes of the ministerial exception.
Biel taught fifth grade at St. James School in Torrance, California. When the school did not renew her contract for the following year, Biel – who had told the school that she was being treated for breast cancer the following year – filed a suit alleging disability discrimination. Some of Biel’s responsibilities included teaching a religion class on the Catholic faith each week, leading students in prayer daily, and taking them to and supervising them during Mass. Like in Morrissey-Berru, the district court concluded that the school was exempt from suit under the ministerial exemption. The Ninth Circuit reinstated Biel’s suit reasoning that the ministerial exception normally requires the employee to play a “religious leadership” role, which Biel did not.
While the ministerial exemption has been around for a long time, the first time the Supreme Court addressed the exemption was in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. A unanimous court cited four different considerations in concluding that the teacher in Hosanna-Tabor was a “minister”: (1) her title; (2) the “substance reflected in that title”; (3) her use of her title; and, (4) the “important religious functions that she performed.” The plaintiff in Hosanna-Tabor was terminated after attempting to return to work after taking medical leave and filed suit against the school for violations of the ADA. The EEOC argued that the “ministerial exception” should apply solely to workers who perform “exclusively religious functions.” The plaintiff in Hosanna-Tabor spent most of her work time on non-religious duties. She also taught a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. She led the chapel service herself about twice a year. The court found these to be decisive factors: that she was formally commissioned or ordained as a “minister,” that she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom, and that her non-religious duties, however extensive, did not make a difference. While the entire court agreed with this outcome, Justices Alito and Kagan wrote separately to stress that the last factor the majority cited--whether the employee functions as a minister, including "those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation"--should be the touchstone of the analysis. Otherwise, they feared that a strict application of the other factors would hinder religious traditions without concepts of ministerial status or ordination from claiming the exception.
The teacher in Hosanna-Tabor responsibilities included significantly more time teaching religion then the teachers in the Morrissey-Berru and Biel cases. If the Supreme Court sides with the schools in the Morrissey-Berru and Biel cases, it may greatly expand the ability of religious employers—including not just schools, but also hospitals and universities—to fire and hire workers based on religious beliefs, regardless of whether a particular job is religious in nature. Such a holding may encourage religious employers to assign workers nominally faith-based tasks to exploit the ministerial exception. Indeed, some already have: In 2015, the Southern Baptist Convention advised religious employers to shield themselves from nondiscrimination suits by giving workers “duties that directly further the religious mission.” Exempting religious employers from nondiscrimination law could have dire consequences. Most obviously, it would legalize discrimination against LGBTQ people, women, racial minorities and other frequent targets of workplace bias.
If you would like to submit content or write an article for the Labor & Employment Law Section, please email Kara Sikorski at email@example.com.
Subscribe to Labor & Employment Law Section news here!