On January 11, 2012, the Supreme Court decided Hosanna-Tabor
Evangelical Lutheran Church and School v. Equal Employment
Opportunity Commission, one of the most highly anticipated
religious rights cases to reach the Supreme Court in decades. In
its opinion, the Court recognized for the first
time the "ministerial exception" and held that the
Establishment and Free Exercise clauses of the First Amendment
prevented a former "called" teacher in a Lutheran school
from suing her employer for employment discrimination.
Cheryl Perich worked as an elementary school teacher at a school
run by the Lutheran church. Eventually, Perich became a called
teacher after completing certain religious studies and being
elected a "commissioned minister" by the church
congregation. In contrast to called teachers, the school also
employed "lay" teachers who were not required to undergo
the same extensive religious training. Teachers at the school
performed generally the same duties regardless of whether they were
called or lay teachers, but the school hired lay teachers only when
called teachers were unavailable. In addition to teaching secular
subjects, Perich spent about 45 minutes per day leading students in
prayer, attending chapel service and teaching religious
classes.
Perich became ill in 2004, requiring her to take a disability
leave of absence for the first few months of the 2004-2005 school
year. When she sought to return to work in January 2005, the school
expressed concern about her ability to teach, given her physical
limitations. The Hosanna-Tabor congregation voted to offer her a
"peaceful release" from her calling if she agreed to
resign from her teaching position. Perich refused to resign.
Rather, she threatened to speak to an attorney to assert her legal
rights. The school then terminated her employment for
"insubordination and disruptive behavior" because,
according to the congregation, she violated church doctrine by
failing to address her grievances through internal church
procedure.
On Perich's behalf, the Equal Employment Opportunity
Commission ("EEOC") filed a lawsuit alleging that the
school discriminated and retaliated against Perich in violation of
the Americans with Disabilities Act. The district court granted
summary judgment in favor of the school, holding that Perich's
claims were barred by the ministerial exception, a doctrine adopted
by all of the federal appeals courts that prevents ministers of a
faith from pursuing employment discrimination claims against their
religious employers. The U.S. Court of Appeals for the Sixth
Circuit reversed, finding that the ministerial exception did not
apply to Perich because her "primary duties" were
secular.
In a unanimous opinion by Chief Justice Roberts, the Supreme Court
reversed the Sixth Circuit, recognized the validity of the
ministerial exception and held that it applied to Perich. The Court
explained that the First Amendment prohibitions against excessive
governmental entanglement in religious organizations prevent civil
courts from getting involved in employment decisions relating to
the selection of the institution?s ministers. As the Court
explained, "[s]uch action interferes with the internal
governance of the church, depriving the church of control over the
selection of those who will personify its beliefs." While
acknowledging the important societal interest in preventing
employment discrimination, Chief Justice Roberts held that the
First Amendment "struck the balance" in favor of
protecting a religious group's rights to choose those
individuals who will preach its beliefs and teach its faith.
The Court refused, however, to establish a bright-line test for
deciding who qualifies as a minister, holding only that
Perich's role as a commissioned minister and the nature of the
functions she performed for the school were sufficient, in this
case, to make her a "minister" for purposes of the
ministerial exception. Of note, the Court rejected the Sixth
Circuit's emphasis on the fact that Perich's religious
duties consumed only 45 minutes of her day. Noting that the issue
of whether one is a minister "is not one that can be resolved
by a stopwatch," the Court held that time spent on particular
activities cannot be considered in isolation.
In concurring opinions, Justices Thomas and Alito offered their
views on how to define a "minister." Justice Thomas
stated that he would "defer to a religious organization's
good-faith understanding of who qualifies as a minister."
Justice Alito's concurrence, with which Justice Kagan joined,
adopted a functional assessment, noting that the formal designation
of someone as a "minister" or the requirement that one be
formally ordained in a faith is not dispositive. Rather, courts
should focus on the function performed by the individual, applying
the exception 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." The extent to which the lower courts adopt either of
these approaches remains to be seen.
Although this opinion should be welcome news to many religious
organizations, such employers should take caution not to interpret
the Court's decision too broadly. In particular, the Court
specifically declined to address whether the ministerial exception
bars breach of contract, tortious interference and other claims by
employees against their religious employers. Nevertheless, this
opinion provides some guidance on the employment rights of
religious organizations.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.