Does a teacher at a religious school have the right to bring suit for employment discrimination against her employer in civil court?  Or does the U.S. Constitution’s Freedom of Religion Clause shield religious employers from such litigation?

In its July 8, 2020, opinion in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court held that religious schools enjoy broad discretion, free from potential liability, in employment decisions regarding their teachers, so long as that teacher instructs his or her students on that school’s faith.  According to the 7-2 majority opinion, “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”   

First Amendment v. federal employment protections

In many instances, federal law provides protection from employment discrimination based on a number of employee or applicant traits, such as race, color, religion, national origin, sex (including sexual orientation and gender identity), age, disability, and genetic information. However, those laws cannot violate the rights enshrined in the United States Constitution, and these two interests can be at odds when evaluating employment decisions in religious institutions.

The First Amendment forbids Congress from prohibiting the free exercise of religion, and the Supreme Court has previously held that this prohibition limits the applicability of employment laws to religious employers, at least with respect to certain important positions. What is to happen, then, when an employee of such a religious institution claims he or she was discriminated against based on a protected category? Does the institution have unbridled authority to take actions against its employees, or do federal statutes provide employee protections?  The answer to these questions involves an understanding of the so-called “ministerial exception” to discrimination laws.

Supreme Court clarifies, expands “ministerial exception”

The Supreme Court first acknowledged the “ministerial exception” in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012). In that opinion, the Court renounced any “rigid formula” for determining which employees qualified for the exception, but announced four relevant circumstances in deciding that the teacher in question was unable to maintain her lawsuit against her employer: (1) the employee had been given the title “minister,” (2) the employee had received significant religious training, (3) the employee held herself out as a minister of the Church, and (4) the employee’s job duties reflected a role in conveying the Church’s message and carrying out its mission. Subsequently, several lower courts interpreted the four factors as a series of elements in a test to be weighed against one another, which, in some cases, resulted in a relatively high bar for the exception’s application.

In Morrissey-Berru, the Supreme Court clarified that “[w]hat matters, at bottom, is what the employee does.” In essence, the Supreme Court shifted the emphasis to the fourth factor from Hosanna-Tabor. It held that if a teacher is imbued with the responsibility of instructing his or her students on the employer-institution’s faith, such a teacher will fall within the ministerial exception. While the other factors described in Hosanna-Tabor made that decision “an especially easy one,” the Supreme Court has clearly signaled that the focus of the ministerial exception should be on the duties of the subject employee.

What this means for religious school employers

The practical effect of the Supreme Court’s decision in Morrissey-Berru is that religious schools now enjoy expanded discretion with regard to employment decisions affecting most, if not all, teachers, so long as they are entrusted with instructing students on faith. In general, religious institutions should feel more comfortable making employment-related decisions for positions that perform important or significant functions.

Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020)