The Supreme Court Finds Religion

Background

The case arose from the termination of Lutheran minister Cheryl Perich, who worked as a teacher in a Lutheran private school. After a medical absence, Perich tried to return to work, but was denied. In response, Perich threatened to enforce her rights under the Americans with Disabilities Act (ADA) in court. The church terminated Perich, in part, because her threat violated church doctrine that forbids ministers to sue the church.

If you heard the Court's oral argument or read the circuit court law, it was no surprise that the Court would recognize a ministerial exception. The real question was, who is a minister, and who is responsible for making that determination? Though the court rejected any “rigid formula” in ascertaining which employees are subject to the ministerial exception, the Court concluded correctly that the judiciary plays at least some role in determining whether a religious organization's designation of which of its employees perform inherently religious functions is a pretext.

The Ministerial Exception

To determine whether the ministerial exception applied to Perich, the Court conducted a fact-specific inquiry into the totality of the circumstances, and found it significant that Perich “held herself out as a minister” of the church and had claimed ministerial housing allowances on her tax returns. Given this emphasis, how employees represent their responsibilities to third parties will be material, and in some cases as important as how the religious institution describes their duties. This fact-specific inquiry should be flexible enough to root out most bad-faith attempts to skirt the law, and it will allow a well-pleaded complaint to make it to a jury for consideration.

Further, the Court made two important distinctions for employees covered by the exception. First, the Court distinguished “outward physical acts” of faith from religious organizations' internal governance. Second, the Court limited its holding by applying the exception only to employment discrimination suits brought by or on behalf of a minister that challenge a religious organization's decision to take adverse employment actions.

Though a religious organization can openly take discriminatory employment actions, ministers may nonetheless have protection from unlawful harassment. Hostile work environment claims under the anti-discrimination laws do not require employment actions; indeed the courts originally fashioned the claims to address situations in which no tangible employment action existed.

The Question of Harassment

Unlawful harassment does not implicate the internal governance of a church. Even if discriminatory harassment is part of a church's faith, a church official acting on such a religious doctrine is engaging in outward physical acts that do not invoke the ministerial exception.

For example, assume a church has a tenet that women must be subordinate to men. The church's refusal to ordain female ministers on the basis of the doctrine is different from co-workers sexually harassing a female minister. While the former scenario deals with the church's internal governance, the latter deals with an individual's “outward physical acts” based on the church's doctrine.

Additionally, the Court left open whether the exception will bar other types of suits, though they may include an employment action. The Court dismissed the parade of horrible consequences that the EEOC argued would result from the exception, such as religious organizations avoiding child labor laws. The Court's casual deflection of the issue suggests it would be prepared to accommodate overriding interests.The Court also hinted at such a balancing of interests with this powerful statement on the separation of church and state: “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.”

Conclusion

In sum, Hosanna-Tabor does little more than sanction pre-existing law that has recognized the ministerial exception. The holding leaves issues that could be resolved to allow religious organizations' employees significant protections. And by allowing courts to reach the question of whether an employee is a minister, the Court has ensured future litigation that will explore the exception's boundaries.

R. Scott Oswald is a Managing Principal of The Employment Law Group, PC, in Washington, DC. Mr. Oswald has experience in litigating and trying whistleblower retaliation, qui tam, wrongful discharge, discrimination, FMLA, USERRA, non-compete, and wage and overtime actions in federal and state courts. Phone: 202-331-3911.

The U.S. Supreme Court recently held in Hosanna-Tabor v. EEOC that the First Amendment's religion clauses provide for a “ministerial exception.” In doing so, the Court promoted religious autonomy at the expense of ministers' rights and society's interest in eradicating discrimination. The Court held that ministers cannot bring employment discrimination suits to challenge adverse employment actions taken by the religious organizations they serve.

However, the Court's narrow and somewhat vague holding left the ministerial exception's reach and significance unclear. Important issues remain undecided, such as which employees are covered by the exception.

Employees of religious organizations have reason to be cautiously optimistic that the resolution of these issues will afford such employees some protections.

Background

The case arose from the termination of Lutheran minister Cheryl Perich, who worked as a teacher in a Lutheran private school. After a medical absence, Perich tried to return to work, but was denied. In response, Perich threatened to enforce her rights under the Americans with Disabilities Act (ADA) in court. The church terminated Perich, in part, because her threat violated church doctrine that forbids ministers to sue the church.

If you heard the Court's oral argument or read the circuit court law, it was no surprise that the Court would recognize a ministerial exception. The real question was, who is a minister, and who is responsible for making that determination? Though the court rejected any “rigid formula” in ascertaining which employees are subject to the ministerial exception, the Court concluded correctly that the judiciary plays at least some role in determining whether a religious organization's designation of which of its employees perform inherently religious functions is a pretext.

The Ministerial Exception

To determine whether the ministerial exception applied to Perich, the Court conducted a fact-specific inquiry into the totality of the circumstances, and found it significant that Perich “held herself out as a minister” of the church and had claimed ministerial housing allowances on her tax returns. Given this emphasis, how employees represent their responsibilities to third parties will be material, and in some cases as important as how the religious institution describes their duties. This fact-specific inquiry should be flexible enough to root out most bad-faith attempts to skirt the law, and it will allow a well-pleaded complaint to make it to a jury for consideration.

Further, the Court made two important distinctions for employees covered by the exception. First, the Court distinguished “outward physical acts” of faith from religious organizations' internal governance. Second, the Court limited its holding by applying the exception only to employment discrimination suits brought by or on behalf of a minister that challenge a religious organization's decision to take adverse employment actions.

Though a religious organization can openly take discriminatory employment actions, ministers may nonetheless have protection from unlawful harassment. Hostile work environment claims under the anti-discrimination laws do not require employment actions; indeed the courts originally fashioned the claims to address situations in which no tangible employment action existed.

The Question of Harassment

Unlawful harassment does not implicate the internal governance of a church. Even if discriminatory harassment is part of a church's faith, a church official acting on such a religious doctrine is engaging in outward physical acts that do not invoke the ministerial exception.

For example, assume a church has a tenet that women must be subordinate to men. The church's refusal to ordain female ministers on the basis of the doctrine is different from co-workers sexually harassing a female minister. While the former scenario deals with the church's internal governance, the latter deals with an individual's “outward physical acts” based on the church's doctrine.

Additionally, the Court left open whether the exception will bar other types of suits, though they may include an employment action. The Court dismissed the parade of horrible consequences that the EEOC argued would result from the exception, such as religious organizations avoiding child labor laws. The Court's casual deflection of the issue suggests it would be prepared to accommodate overriding interests.The Court also hinted at such a balancing of interests with this powerful statement on the separation of church and state: “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.”

Conclusion

In sum, Hosanna-Tabor does little more than sanction pre-existing law that has recognized the ministerial exception. The holding leaves issues that could be resolved to allow religious organizations' employees significant protections. And by allowing courts to reach the question of whether an employee is a minister, the Court has ensured future litigation that will explore the exception's boundaries.

R. Scott Oswald is a Managing Principal of The Employment Law Group, PC, in Washington, DC. Mr. Oswald has experience in litigating and trying whistleblower retaliation, qui tam, wrongful discharge, discrimination, FMLA, USERRA, non-compete, and wage and overtime actions in federal and state courts. Phone: 202-331-3911.