The U.S. Supreme Court’s recent holding in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission and Cheryl Perich, is both a win for religious freedom and a blow to workplace equality. No. 10-553, 565 U.S. ____ (January 11, 2012), available athttp://www.supremecourt.gov/opinions/11pdf/10-553.pdf. For the first time, the Court recognized a “ministerial exception” that bars employment discrimination suits by “ministerial” employees of religious groups. Id. at *13. The exception is meant to protect religious groups from government interference in the selection of their ministers. Id. at *10. Unfortunately for religious groups and their employees alike, the Court’s opinion only partially explains the contours of the “ministerial exception,” leaving uncertainty about which employees of religious groups are protected by federal and state employment discrimination laws, and which are not.
The case arises out of an employment dispute at the Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”). Hosanna-Tabor operates a religious elementary school, where it employs both “lay” and “called” teachers. Id. at *2. While “lay” teachers need not even be Lutheran, id. at *2, “called” teachers carry the title “Minister of Religion, Commissioned,” because they have completed “a significant degree of religious training followed by a formal process of commissioning.” Id. at *16. Both types of teachers “generally performed the same duties,” including the teaching of religious subjects; however, “lay teachers were hired only when called teachers were unavailable.” Id. at *2.
Hosanna-Tabor employed Cheryl Perich as a “called” teacher for more than four years. Id.at *2-3. In the summer of 2004, Perich developed narcolepsy, resulting in her taking disability leave for the first part of the 2004-2005 school year. Id.at *3. On January 27, 2005, Perich notified the school principal of her intention to return to work on February 22, as authorized by her doctor. Id.at *3. Hosanna-Tabor responded by asking Perich to resign, concluding “that Perich was unlikely to be physically capable of returning to work that school year or the next.” Id.at *3. Perich refused to resign and instead showed up for work on February 22, causing a disturbance by initially refusing to leave. Id.at *3. Perich also informed the school principal “that she had spoken with an attorney and intended to assert her legal rights.” Id.at *3. Hosanna-Tabor then fired Perich, citing her “insubordination and disruptive behavior” and her “threat to take legal action.” Id. at *4.
Perich followed through with her threat to take legal action. After Perich filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”), “[t]he EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit.” Id. at *5 (referencing the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.). Perich intervened in the action, adding a retaliation claim under the Michigan Persons with Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1602(a). Id. at *5. The District Court dismissed the claims on summary judgment, citing the “ministerial exception”; however, the Court of Appeals for the Sixth Circuit reversed, saying that the exception did not apply. Id.at *5-6. Thereafter, the U.S. Supreme Court granted certiorari. Id. at *6.
The Court first considered whether the “ministerial exception” exists. It noted that “the Courts of Appeals have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment, that precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.” Id. at 13. The Court agreed:
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. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
Id. at 12-13. The Court also noted that its prior decisions “confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Id. at *10. Accordingly, the Court held that a “ministerial exception” to employment discrimination laws exists. Id. at 13.
The Court next considered whether Perich fell within the “ministerial exception.” The unanimous Court was “reluctant . . . to adopt a rigid formula for deciding when an employee qualifies as a minister[,]” but held “that the [ministerial] exception covers Perich, given all the circumstances of her employment.” Id.at *15-16. In particular, the Court cited “the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church” in concluding that the ministerial exception applied. Id.at *18. Regarding the facts that “lay teachers at the school performed the same religious duties as Perich” and that “her religious duties consumed only 45 minutes of each working day,” the Court held that such facts are relevant to the analysis but not dispositive. Id. at *18-19. For these reasons, the Court reversed the decision of the Sixth Circuit, reinstating the District Court’s dismissal of Perich’s disability retaliation claims under the “ministerial exception.” Id. at *22.
In a footnote to the opinion, the Court also settled a circuit split on the procedure for raising the “ministerial exception.” “We conclude that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.” Id. at *20 n.4. Thus, religious groups who are sued by an employee for employment discrimination must raise the “ministerial exception” at the earliest opportunity (typically in the Answer), or else it may be waived.
The Court’s decision in Hosanna-Tabor is both a win for religious freedom and a blow to workplace equality. Addressing the tension between these two worthy objectives, the Court said:
The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.
Id. at *21-22. Put another way, the First Amendment protects a religious group’s freedom to discriminate against “ministerial” employees, not just on the basis of religion, but also on the basis of race, color, national origin, sex, ancestry, age, disability, pregnancy, and other protected characteristics. The tragedy of this decision for workplace equality is that the Court declined to clearly articulate a test for determining when the “ministerial exception” will apply. This means uncertainty for all employees of religious groups, as well as their employers, who can only speculate about which employees of religious groups enjoy the protections of federal and state employment discrimination laws. Unfortunately, the answer to this question must wait until the U.S. Supreme Court has another occasion to consider the “ministerial exception.”
By: Luke R. Hertenstein