On January 11, 2012, the United States Supreme Court for the first time recognized the so-called “ministerial exception” to workplace discrimination laws. In Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission, the Court unanimously found that the Establishment and Free Exercise Clauses of the First Amendment bar wrongful termination suits brought on behalf of “ministers” against their churches. While this decision is helpful for religious group employers, including religious schools and places of worship, the Court left open the important question of which employees actually qualify as a “ministers.” Accordingly, the decision may create some confusion for religious group employers going forward.
The underlying facts are straightforward. Cheryl Perich (“Perich”) worked at the Evangelical Lutheran Church and School (“School”) in Redford, Michigan as a “called” teacher. The School classified its teachers into two categories: “called” and “lay.” Unlike lay teachers, called teachers had to complete certain academic requirements, including a course of theological study. In 2004, Perich was diagnosed with narcolepsy, which required her to take a leave of absence from her employment. Upon her attempted return to work, the School asked her to resign. Perich refused and threatened to sue the School for disability discrimination. The School then terminated her employment because of her threat and specifically stated that its faith required disputes be resolved internally rather than through litigation. As a result, the U.S. Equal Employment Opportunity Commission filed a lawsuit against the School on behalf of Perich alleging that it had retaliated against Perich in violation of the Americans with Disabilities Act. Perich intervened in that lawsuit by filing her own complaint alleging claims under Michigan’s Persons with Disabilities Civil Rights Act.
The district court dismissed the EEOC’s and Perich’s claims by applying the ministerial exception, a doctrine that was judicially developed by the lower courts and which exempts religious institutions from certain wrongful termination lawsuits. The Sixth Circuit, however, reversed the lower court by finding that the ministerial exception did not apply in this case because Perich spent the vast majority of her time teaching a secular curriculum. Perich spent only 45 minutes per day on religious activities.
Writing for the Court, Chief Justice Roberts officially recognized the ministerial exception and rejected the Sixth Circuit’s analysis, emphasizing that:
members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.
Accordingly, the Court concluded that the ability of religious groups to choose who will preach their beliefs, teach their faith, and carry out their mission is paramount. The Court, however, stopped short of defining the term “minister,” and stated that it was reluctant “to adopt a rigid formula for deciding when an employee qualifies as a minister.”
As it related to Perich, the Court held that she was covered by the ministerial exception “given all the circumstances of her employment.” Among the factors weighed by the Court were: (1) the School held Perich out as a minister, (2) Perich’s title as minister reflected a significant degree of religious training followed by a formal process of commissioning, (3) Perich held herself out as minister of the Church by, amongst other things, claiming a special housing allowance on her taxes that was available only to employees earning their compensation “in exercise of the ministry,” and (4) Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission.
Despite its refusal to define “minister” in its “first case involving the ministerial exception,” the Court did provide guidance regarding the extent to which ministers perform secular duties and vice versa – the extent to which lay employees perform duties performed by ministers. Specifically, the Court found that the Sixth Circuit gave too much weight to the fact that lay teachers (who were not commissioned ministers) performed the same religious duties as called teachers. Further, the Court found that the Sixth Circuit placed too much emphasis on the fact that Perich performed secular duties. Under these facts, Perich’s religious duties consumed only 45 minutes of each workday. As Chief Justice Roberts noted, the issue of whether someone is a minister “is not one that can be resolved by a stopwatch. The amount of time an employees spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed” as well as the other considerations discussed above. Moreover, the Court made clear that the ministerial exception is not limited to the head of a religious organization.
What is important for religious employers to remember is that the Court’s decision in Hosanna-Tabor Evangelical Lutheran Church does not create a blanket exception from all wrongful termination lawsuits for religious group employers. Rather, the decision merely creates an exception for those employees who qualify as “ministers,” which is a case-by-case determination. Accordingly, before taking any adverse actions against employees, religious group employers should continue to evaluate their decisions and consider: (1) whether the employee qualifies as a minister, and (2) whether there is any legal risk in taking action. Attorneys in the Gibbons Employment & Labor Law Department can assist with any questions that you may have.
Peter J. Dugan is an Associate in the Gibbons Employment & Labor Law Department.