On October 6, 2011, the Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, one of the most important religious rights cases to reach the court in years. The question with which the court is grappling is whether the so-called ministerial exception—which has been applied by the courts to prevent certain employees from asserting discrimination and related claims against religious institution—is broad enough to bar claims by employees such as lay teachers whose jobs are largely, but not entirely, secular. Based on the constitutional requirements of the free exercise and establishment clauses of the First Amendment, the ministerial exception has been adopted by most state and federal courts. However, the definition of "minister" remains unsettled, and courts have struggled with how best to balance the societal desire to prevent workplace discrimination with the constitutionally protected rights of religious organizations to be free from excessive government interference.
In Hosanna-Tabor, parochial school teacher Cheryl
Perich was hired in 2000 by a church-operated elementary school as
a lay teacher. Shortly thereafter, Perich became a
"called" teacher after completing certain religious
studies and being elected a "commissioned minister" by
the church congregation. After becoming a "called"
teacher, Perich's duties remained substantially the same as
when she was a lay teacher. In addition to teaching a number of
secular subjects, Perich led students in prayer and at chapel
services and taught religion class.
In 2004, Perich alleged that the school violated her rights under
the Americans with Disabilities Act when it fired her for
threatening to go to the Equal Employment Opportunity Commission
(EEOC) after the school refused to allow her to return from a
medical leave of absence. In response to the EEOC's lawsuit on
Perich's behalf, the school contended that it terminated Perich
for insubordination after she refused, allegedly in violation of
Lutheran church doctrine, to address her grievances via internal
procedures and instead threatened to take legal action. The
district court granted summary judgment in favor of the school,
holding that Perich was a ministerial employee and therefore her
claims were barred by the ministerial exception.
The U.S. Court of Appeals for the Sixth Circuit subsequently
reversed, finding that Perich's "primary duties" at
the school were secular (she spent more than six hours of her
seven-hour day teaching secular subjects, using secular textbooks,
without incorporating religion into the secular material) and
therefore she was not a ministerial employee, even though she held
the title "commissioned minister" and participated in and
led some religious activities throughout the day. Recognizing a
split among the circuit courts of appeal on the scope of employees
subject to the ministerial exception, the Supreme Court agreed to
hear the case.
At oral argument, the court appeared disinclined to jettison the
ministerial exception altogether, as the EEOC initially argued for
in its brief. Through their questioning, the justices demonstrated
a strong interest in upholding religious organizations' First
Amendment rights to govern their organizations and appeared loath
to become entangled in debates over how important various religious
tenets were to each institution. Chief Justice Roberts and Justices
Scalia, Kagan and Alito all expressed serious concern over the idea
of a judge deciding for a church which religious tenets should be
respected and which should not—for example, whether the
Lutheran church's purported policy of requiring grievances to
be handled internally was due more or less deference than the
Catholic Church's policy of requiring priests to be male.
Because it is apparent that the ministerial exception will survive
in some form, the real issue facing the justices is how to define
the doctrine's parameters. At the extremes, the doctrine's
application is clear—a court will not question a Catholic
church's decision to terminate a priest but, typically, will
adjudicate a janitor's discrimination claim against the same
church. The difficult question is where the high court will land on
employees and claims that are closer to the middle of the spectrum.
On this thorny issue, the justices' comments provided no
suggestion of consensus, with each justice (except Justice Thomas,
who as usual asked no questions) expressing frustration with all
attempts to define "ministerial employee." For example,
if a ministerial employee is defined as one who performs important
religious duties, how does a court determine whether those duties
are, in fact, important, without interpreting church doctrine?
Similarly, Chief Justice Roberts inquired whether courts could
consider claims involving a religion that believed all of its
members to be witnesses to the faith and thus
"ministers." On these questions, the justices did not
appear to be satisfied with many answers. In short, it is unclear
whether the court will uphold the Sixth Circuit's categorical
version of the "primary duties" test or adopt a more
nuanced approach that upholds First Amendment rights while
protecting society's interest in avoiding discriminatory and
retaliatory employment practices.
A decision is expected by June 2012. It remains to be seen whether
the Supreme Court will address all of the myriad issues raised by
this case, but at the very least the court is expected to provide
some guidance on this murky area of employment law.
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