In a significant religious freedom decision, the United States Supreme Court unanimously recognized a “ministerial exception” to employment discrimination laws in January of this year. The “ministerial exception” had been recognized by the lower courts but, until this recent decision, it had not been officially sanctioned by the Supreme Court. In its decision, the Court found that the Establishment and Free Exercise Clauses of the First Amendment preclude “ministers” from asserting employment discrimination claims against their churches.
In Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Opportunity Employment Commission, 132 S. Ct. 694, 181 L. Ed. 2d 650, 114 FEP Cases 129, 25 AD Cases 1057 (2012), the Court addressed the claims of Cheryl Perich (“Perich”), a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School (the “Church”), which is a member of the Lutheran Church. Perich claimed that the Church terminated her because of her disability–narcolepsy–in violation of the Americans with Disabilities Act, as well as in retaliation for her threat to pursue a disability discrimination claim. The Church argued that Perich lost her job because she violated its religious doctrine by failing to resolve her problems with the school using its internal procedures as opposed to bringing litigation.
In a landmark decision, the Supreme Court held that a church’s decisions regarding the firing of religious employees are protected from the regulation of anti-discrimination laws by the First Amendment’s guarantee of freedom of religion. The decision did not reach the question of exactly which church employees qualify for the “ministerial exception.” Perich was a teacher in a church school—she taught religious and well as secular subjects–and the court held that the ministerial exception applied to her termination. Yet there are numerous other workers at churches, synagogues, and other religious institutions who likely would not qualify for the ministerial exception.
Larry Crain, a faculty member of the Church Law Institute, discussed the case recently in The Tennessean. Mr. Crain heralded the decision as a signal that all religious groups are free to choose leaders with reference to their beliefs and doctrines, rather than being constrained by federal anti-discrimination laws. Other commentators expressed concerns that the decision meant that clergy could be fired for discriminatory reasons without recourse.
Regardless of where you come down on this issue, the decision is an important one for churches and other religious organizations to understand. While the decision did not spell out which employees are affected by the ministerial exception and which ones aren’t, organizations can probably safely look to Justice Alito’s separate opinion for guidance. Justice Alito argued that the exception should be tailored to an 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.” While this language is not an official “test” set out in the opinion, it would be sensible to use it as a guide in making employment decisions about employees that may otherwise be in a protected class. The closer the employee is to meeting this description, the more likely a court would be to find that the employee’s termination is protected by the ministerial exception