Separation of Church and State: The Application of the Ministerial Exception to Certain Employment Laws

Labor & Employment Newsletter

Firm Alert

Author(s)

It is common knowledge among many human resources professionals that religious organizations generally are protected from religious discrimination lawsuits under Title VII of the Civil Rights Act and most state anti-discrimination laws. For example, a Baptist organization may apply a preference for members of the Baptist Church in its hiring decisions. Less well known, however, is the fact that religious organizations may be exempted from employment discrimination lawsuits of any type – not just religious discrimination lawsuits – when making employment decisions concerning certain positions. This exemption, colloquially known as the “Ministerial Exception,” is a creature of case law rather than statute.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Although lower courts have recognized the Ministerial Exception for almost 50 years, the United States Supreme Court first recognized the Ministerial Exception in 2012, in the case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. In that case, Cheryl Perich, a former teacher at an elementary school affiliated with the Lutheran Church, filed a disability discrimination claim after the school discharged her. Perich was a “called” teacher at the school, meaning that she had completed certain academic requirements, including a course of theological study; had received the formal title of “Minister of Religion, Commissioned” from the Lutheran Church; and had formally accepted the call to service in front of her congregation. Perich taught a religion class four days a week. At various times, she also taught math, language arts, social studies, science, gym, art, and music classes. She led students in prayer and devotional exercises each day, and she led a weekly school-wide chapel service twice a year. She claimed a special housing allowance applicable to ministers on her federal income tax returns.

Perich was diagnosed with narcolepsy and took disability leave. Eventually, she notified the school principal that she would be able to return to work the following month, but the principal informed her that the school had contracted with another teacher to fill her duties. After the school terminated her employment, Perich filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), and the EEOC filed a lawsuit against the school on her behalf, alleging disability discrimination and retaliation in violation of the Americans with Disabilities Act (ADA) and Michigan state law.

The school argued that the First Amendment barred Perich’s claims because the claims concerned the employment relationship between a religious institution and one of its ministers. The district court agreed with the school and dismissed the lawsuit. The EEOC appealed, and the Sixth Circuit Court of Appeals (the federal circuit that includes Tennessee, Kentucky, Ohio, and Michigan) reversed the district court’s holding. The Sixth Circuit recognized a Ministerial Exception, but, unlike the district court, it found that Perich did not qualify as a “minister” under that exception. Among other factors the Sixth Circuit considered was the fact that Perich taught not only religion classes, but also “secular” classes, including gym. The school appealed the Sixth Circuit’s decision to the United States Supreme Court.

The Supreme Court, agreeing with every federal appellate court that had considered the issue, found that there is a Ministerial Exception, grounded in the First Amendment, that precludes application of employment discrimination laws to a religious institution’s decisions as to whom its ministers should be. The Supreme Court further sided with the district court and found that the exception applied to the decision to terminate Perich’s employment. The Supreme Court identified four central facts in support of its decision: Perich’s church gave her the title of “minister”; her position reflected a significant degree of religious training, including eight college-level courses in theology; she held herself out as a minister by accepting a formal call to religious service in front of her congregation and by claiming a housing allowance on her tax returns that is only available to employees earning compensation “in the exercise of the ministry;” and her job duties reflected a role in conveying the Lutheran Church’s message and carrying out its mission.

Morrissey-Berru and Biel Cases

Following the Hosanna-Tabor opinion, the principal question left unanswered regarding the Ministerial Exception was how far this exception extends, in terms of which individuals and which positions qualify for it. The United States Supreme Court addressed this question in July of last year, in two companion cases involving employment discrimination claims brought by elementary school teachers against Catholic schools.

The teachers, Agnes Morrissey-Berru and Kristen Biel, taught religion to their students most schooldays. However, most of their time during the school day was spent teaching secular subjects. Unlike Perich, neither Morrissey-Berru nor Biel held the title of “minister.” Neither of them received the amount of religious training Perich received. Biel attended only a half-day conference that included training on how to incorporate religious themes into lesson plans; Morrissey-Berru attended one catechist course on the history of the Catholic Church. Further, neither Morrissey-Berru nor Biel claimed the housing allowance for ministers on their tax returns or otherwise held themselves out to the public as ministers.

Just as in Hosanna-Tabor, the district courts dismissed the claims of Morrissey-Berru and Biel, finding them barred by the Ministerial Exception, the court of appeals reversed, and the United States Supreme Court (in a 7-2 decision) agreed with the district courts and found that the exception applied. In support of its finding, the Supreme Court stated: “What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that 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 majority opinion cited with approval language in a concurring opinion in Hosanna-Tabor that stated that the Ministerial Exception should include not only employees with the formal title of “minister” (or its equivalent), but also “any employee who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

Reach of the Ministerial Exception to Other Positions

The application of the Ministerial Exception to a particular position in a religious organization must be decided on a case-by-case basis. However, it is clear that the exception extends beyond persons holding titles similar to “minister,” and even beyond teachers in religious schools. Courts in various jurisdictions have found the exception to extend to a “spiritual director” in a church, the principal of a parochial school, and church music directors. However, all employees of religious organizations are not covered by the exception. Courts have found that the exception did not extend to a professor of exercise science at a religious college, a food services director at a religious school, editorial secretaries at a religious publishing house, and a receptionist and secretary at a church. For the exception to apply, the position likely must include a significant leadership component and/or an element of communicating a religious message to others.

Reach of the Ministerial Exception Beyond Employment Discrimination Laws

In addition to protecting religious organizations from legal challenges to their decisions as to whom to employ as “ministers,” the Ministerial Exception also may provide religious organizations a defense to claims under the Fair Labor Standards Act (FLSA). On January 8 of this year, the federal Department of Labor issued an opinion letter stating that the Ministerial Exception applies to FLSA claims brought against religious organizations.

The specific issue addressed by the Department of Labor was whether a nonprofit religious daycare and preschool must pay its teachers on a salary basis in conformity with the FLSA. Without deciding whether the Ministerial Exception applied to the teachers in question, the Department of Labor stated that if the teachers qualify for the Ministerial Exception, the school is not bound to pay them in a way that comports with the FLSA, but rather can elect to pay them using any method it wishes (and is acceptable to the teachers, of course).

Conclusion

The reach of the Ministerial Exception is not absolute. It does not apply to all positions at religious organizations, but only limited positions. Further, it does not protect religious organizations from all claims that could be brought by employees who meet the exception. For example, some courts have held that discrimination claims unrelated to hiring, firing, and promotion decisions (e.g., harassment claims) may be brought by persons who meet the Ministerial Exception. However, religious organizations are wise to keep this exception in mind, especially as a potential defense to claims that may be brought against them.