Administering the Ministerial Exception: The Supreme Court Expands the Defense in Employment Cases

Although the issue of whether someone can sue a church for employment discrimination doesn’t come up often, in Our Lady Of Guadalupe School v. Morrissey-­Berru, the Supreme Court expanded the ministerial exception that precludes certain employment claims. This is big news for religious employers.

Just like every other employer, churches and religious institutions sometimes get sued by an employee claiming a decision was based on a protected status, like race, sex or age. Those defendants sometimes invoke the First Amendment’s prohibition on state interference with religion to exempt themselves from suit.  Known as the “ministerial exception,” most of the case law has turned on whether the plaintiff’s position could be considered a “minister,” in which case, the law cannot interfere with a religious organization’s decisions about who can fill that role. Past cases specifically declined to adopt a “rigid formula” for determining whether a job fit under the ministerial exception, and instead listed multiple factors that courts should consider. However, in one of the Supreme Court’s last cases of this term, the court expanded the types of employees who may fit under the exception.

Then: Importance of a Title

The court began by recognizing its past precedent, Hosanna-Tabor, a case from 2012. In that case, Janet Perich, an elementary teacher at an Evangelical Lutheran school, sued for disability discrimination under the ADA. The Supreme Court held that her claim was barred due to the ministerial exception:

“the establishment clause prevents the Government from appointing ministers, and the free exercise clause prevents it from interfering with the freedom of religious groups to select their own.”

The court applied four factors to determine that Perich’s  position met the exception:  1)  her title was “minister of religion, commissioned”;  2)  her position reflected significant religious training followed by a formal process of commissioning;  3)  she held herself out as a minister of the church (including claiming tax benefits); and 4)  her job duties included “conveying the church’s message and carrying out its mission.”  The court decided all of those factors showed that the elementary teacher was a “minister” under the exception and dismissed the discrimination claim.

Now: Title Isn’t So Important

In the Morrissey-Berru case, two elementary teachers at two Catholic schools in Los Angeles filed employment discrimination claims (one for age and one for disability) after they were terminated.  While neither teacher held the title of “minister” or had specific religious training, they both provided religious education, were evaluated on whether they infused Catholic values into their teaching and prayed with their students. The district courts granted summary judgment in the schools’ favor but the Ninth Circuit, applying the Hosanna-Tabor factors, found that since neither teacher had the title or credentials of a minister and held herself out as a religious leader, the school could not use the ministerial exception to avoid their discrimination claims.

The Supreme Court disagreed.  As an initial matter, the court noted that the four-factor test in Hosanna-Tabor was not intended as a “checklist” for the exception.  Instead, the court focused on the employees’ actual duties.  Even though the two teachers did not have the title “minister,” they had many of the same core responsibilities as the Hosanna-Tabor plaintiff:  they guided their students to live their lives in accordance with their faith and played a vital role in carrying out the church’s mission.  Therefore, while they may not have considered themselves “ministers,” the court held that the teachers fit within the ministerial exception and barred their discrimination claims.

What Does This Mean Going Forward?

First, and importantly, this decision only covers employees of churches and religious institutions. The “ministerial exception” is tied to the First Amendment doctrine that courts are bound to stay out of employment disputes involving those “holding certain important positions with churches and religious institutions.” Private, non-religious organizations cannot use this exception.

Second, while the Morrissey-Berru decision answers some questions, there is still no bright line defining all “important positions” subject to the exception. The court expanded the exception to cover teachers who don’t have the credentials or title of “minister.”  How far does it go?  Because the exception absolutely bars employment discrimination claims, this will be an important question.  It will be interesting to see how broadly the courts apply this decision. For now, however, religious organizations should review their job descriptions and policies to make clear who they are relying upon to minister on their behalf.