The United States Supreme Court recently held there is a “ministerial exemption” that prohibits the application of employment discrimination laws to claims by a minister against a religious institution. The Court found that requiring a church to employ or retain an unwanted minister would infringe on both the Free Exercise Clause and the Establishment Clause. (Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, (— S.Ct. —-, U.S., January 11, 2012)).
Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”), a member of the Lutheran Church-Missouri Synod, operates a school in Redford, Michigan. The Synod classifies teachers as either “called” or “lay.” “Called” teachers have been called to teaching by God through a congregation. To receive a call, a teacher must complete certain academic requirements such as a “colloquy” program at a Lutheran university or college. A colloquy program requires a candidate to take eight courses in theology, obtain an endorsement from the Synod district, and pass an oral examination. If a teacher satisfies these requirements, he or she may be “called” by a congregation and receive the formal title of “Minister of Religion, Commissioned.” A commissioned minister serves an open-ended term. At Hosanna-Tabor, a called teacher can only have a call rescinded by a supermajority vote of the congregation.
“Lay” teachers are not required to be Lutheran or trained by the Synod. Hosanna-Tabor appoints lay teachers to one-year renewable terms and only hires lay teachers when no called teachers are available. The congregation does not vote on the employment of lay teachers.
Hosanna-Tabor first employed Cheryl Perich (“Perich”) as a lay teacher in 1999. Later that same year, Perich finished her colloquy, accepted the call, and became a commissioned minister. Perich taught math, language arts, science, art, social studies, gym, and music. She also taught a religion class four days per week, led students in daily devotional exercises and prayer, attended a weekly chapel service, and led the chapel service about twice a year.
Perich began the 2004-2005 school year on disability leave because she was ill with narcolepsy. In January 2005, Perich notified the principal she would be able to report to work in February. The principal told Perich the school had contracted with a lay teacher to fill her position for the entire school year. The congregation voted to release Perich from her call and offered to pay a portion of her health insurance premiums in exchange for her resignation. Perich refused to resign. The day she was medically cleared to return to work, Perich went to the school and refused to leave until she obtained documentation that she had reported to work. The principal told Perich she would likely be fired. Perich told the principal she had spoken to an attorney and she intended to assert her legal rights against Hosanna-Tabor.
The congregation rescinded Perich’s call and terminated her employment. Perich filed a charge with the Equal Employment Opportunity Commission (“EEOC”) asserting a violation of the Americans with Disabilities Act (“ADA”). The EEOC brought a lawsuit against Hosanna-Tabor for unlawful retaliation for threatening to file a lawsuit under the ADA. Perich intervened in the lawsuit claiming unlawful retaliation under the ADA and Michigan law. The district court concluded the lawsuit was barred by the “ministerial exception.” The United States Court of Appeals for the Sixth Circuit vacated that decision and ordered the district court to proceed on the merits of Perich’s retaliation claims.
Supreme Court Decision
The question presented to the Supreme Court was whether the First Amendment’s Establishment and Free Speech Clauses bar a wrongful termination action where the employer is a religious group and the employee is a minister for the religious group. The Supreme Court reversed the decision of the Court of Appeals finding that the First Amendment does bar such an action. The Court concluded that not only is there a “ministerial exception” applicable to employment discrimination claims, Perich qualified as a minister for purposes of the exception.
The First Amendment mandates that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” While “[t]he Establishment Clause prevents the Government from appointing ministers, . . . the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” The government may not “contradict a church’s determination of who can act as its minister.”
Federal Courts of Appeals have uniformly recognized a “ministerial exception” that precludes the application of employment discrimination legislation to religious institutions and their ministers. The Supreme Court agreed that a ministerial exception exists. Requiring a church to employ or retain an unwanted minister interferes with a church’s internal governance and deprives a church of the ability to choose the persons who personify its beliefs. Government imposition of an unwanted minister would infringe upon “the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments” and the “Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”
The Court further held that the ministerial exception applies in this case. The exception is not limited to the head of a religious congregation. The Court stated it was reluctant “to adopt a rigid formula for deciding when an employee qualifies as a minister.” However, it found the exception applied to Perich because Hosanna-Tabor held Perich out as a minister, Perich had a significant degree of religious training, Hosanna-Tabor subjected Perich to a formal process of commissioning, and Perich held herself out as a minister. Perich’s job duties reflected her role of conveying the message of Hosanna-Tabor and carrying out its mission.
The amount of time an employee spends on religious tasks is relevant but not determinative on the issue of whether the exception applies. Perich’s religious activities only consumed 45 minutes per school day. However, Perich still qualified as a minister because of the nature of her duties and her relationship with the Church.
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