Key Points

• The ministerial exception protects religious employers from government interference in internal employment disputes involving the selection, supervision, and removal of individuals who play an important role relative to the core mission of the institution.
• To determine whether the ministerial exception applies in a specific case, courts must assess the nature of the duties or functions performed by the employee for the religious institution.
• Employees of religious institutions who are designated as performing functions vital to the core mission and that fall within the scope of the ministerial exception cannot pursue an employment claim.
• The Supreme Court stated: “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.”
• This exception may apply to other lay employees of religious employers.

In the 2012 case of Hosanna-Tabor Evangelical Church and School v. EEOC, (Hosanna-Tabor) a unanimous U.S. Supreme Court (Court) confirmed the existence of the ministerial exception, a constitutional affirmative defense that bars employment discrimination claims by “ministers” against religious institutions. On July 8, 2020, the Supreme Court recognized that this exception can extend to lay employees who perform ministerial functions vital for fulling the role of the religious organization. In the 7-2 opinion in Our Lady of Guadalupe v. Morrissey-Berru and St. James School v. Biel (OLG), the Court held that the ministerial exception barred two teachers from pursuing a claim against their religious employers for employment discrimination.

Background

Plaintiffs Morrissey-Berru and Biel were elementary school teachers who claimed that their parochial school employers discriminated against them on the basis of age and disability, respectively. The schools denied the claims on the merits and also asserted the ministerial exception defense. Both teachers taught all subjects, including religion, attended religious services with their students, were required to uphold the schools’ mission in their duties, and had contracts including language related to the “faith formation of students.”

Both schools successfully asserted the ministerial exception defense, but those judgments were reversed by the Ninth Circuit. Specifically, in the separate cases, the Ninth circuit concluded that the ministerial exception did not apply because Morrissey-Berru lacked the title of “minister” and sufficient training, and did not hold herself out to the public as a minister or religious leader, while Biel lacked the credentials, training and a ministerial background to satisfy the exception’s requirements.

 Supreme Court Analysis

The 2012 case, Hosanna-Tabor, did not provide religious employers with a general immunity from employment laws but, instead, shielded religious employers from judicial review of internal employment disputes involving selection, supervision, and removal of particular employees who pay an important role relative to the religious mission of the institution.

On July 8, 2020, a 7-2 majority of the Supreme Court rejected the argument that the Hosanna-Tabor required a rigid formula that would result in only employees in positions holding “clerical titles,” or requiring extensive religious training, as eligible for the constitutional exception. Instead, the Court in OLG observed that the determination of which employees may qualify for the exemption requires a case-by-case determination. In OLG, the Court recognized that the act of teaching, educating young people in the faith of the religious organization, inculcating its teachings, and training them to live their faith may lie at the core of a religious institution’s mission and subject employees fulfilling those functions to the First Amendment’s ministerial exception. Thus, the Court allowed the school-employer to claim the ministerial exemption as applied to Morrissey-Berru and Biel, thus precluding them from bringing their employment discrimination claims.

The OLG majority described a religious institution’s characterization of the role of its employees as “important” to the decision of whether the employee is a minister of the faith. While the Court did not adopt a position of absolute deference to the employer’s determination of to whom the exemption should apply, the Court did recognize that such a conclusion would vary based on how the employer used its employees to carry out the mission of the organization. As applied to schools, the Court concluded that “when a school entrusts a teacher with the responsibility of educating and forming students in the faith,” courts cannot intervene in disputes between the teacher and the school without “threatening the school’s independence in a way the First Amendment does not allow.”

What This Means To You

This case represents a significant application of the First Amendment’s Establishment and Free Exercise clauses to religious employers. The opinion demonstrates that judicial intervention in employment disputes is prohibited for positions beyond traditional church leadership (pastors, imams, rabbis, etc.) and can extend to lay positions within a religious organization that are critical to carrying out the religious mission of the employer. The analysis and decision of the Court in this case, applying the “ministerial exception” to two fifth grade teachers, indicates that this exception can apply to any employee whose function is treated and considered by the religious institution as vital to its core mission. As discussed at the OLG oral arguments, religious employers may seek to use this exception for nurses in religious healthcare institutions, counselors in religious clinics, and for a variety of other non-clerical positions outside the school context.

From a practical standpoint, religious employers should clearly articulate in job descriptions, handbooks, contracts, offer letters, and mission statements the roles and functions of employees that are vital to their mission. Employees of religious institution who perform functions vital to the core mission of its religious employer may be barred from seeking judicial intervention in employment disputes.

Tracey Oakes O’Brien, Knowledge Manager, is a co-author of this content.