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Print articleU.S. Supreme Court Recognizes Constitutional Right of Religious Organization to Select its “Ministers”
June, 2012 - Carrie M. Harris
A religious organization has a constitutional right to make decisions about the hiring and firing of its “ministers” under the First Amendment. In a recent U.S. Supreme Court decision, Hosanna-Tabor Evangelical Church and School v. E.E.O.C., 132 S.Ct. 694, 2012 WL 75047 (2012), the Supreme Court ruled that religious organizations can assert the “ministerial exception” under the First Amended to bar employment discrimination suits by those who can be considered “ministers” of the organization.
In reaching its decision, the Court declined to adopt a rigid formula for determining when an individual qualifies as a “minister.” However, the Court did find a number of factors relevant in its decision, including:
1. The school held Ms. Perich out as a minister.
The congregation identified Ms. Perich as a “called” teacher and she held an official title, “Minister of Religion, Commissioned.” To qualify for this position, Ms. Perich was required to take courses in theological study, obtain the endorsement of her local Synod and pass an oral examination by a faculty committee. Even after obtaining the title, Ms. Perich continued to undergo periodic review of her ministerial responsibilities and received “continuing education as a professional person in the ministry of God.” While the school employed lay teachers who performed the same duties as called teachers, the Court focused on the Church only recognizing certain teachers possessing particular religious qualifications as “called.”
The Court cautioned that a title, alone, will not automatically make an individual a minister, but the Court did admit that a title is relevant. It was also relevant that underlying the title was “the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position.”
2. Ms. Perich held herself out as a minister of the Church.
The Court was also influenced by Ms. Perich identifying herself as a minister of the Church. In her termination documents, Ms. Perich stated that God was leading her to serve in the teaching ministry. Additionally, she claimed certain benefits including a special housing allowance on her taxes due to her position as a minister.
3. Ms. Perich’s job duties reflected a role in conveying the Church’s message and mission.
Finally, the Court looked to Ms. Perich’s job duties. The Church tasked Ms. Perich with leading others to Christian maturity and teaching them the Word of God. She taught a religion class four days a week, led them in prayer three times a day, took them to a chapel service once per week and even led the chapel service approximately twice per year. In total, Ms. Perich’s religious job duties only consumed an average of 45 minutes of each workday. According to the Court, “the amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations discussed above.”
Post Hosanna-Tabor and Lessons Learned
1. The ministerial exception has fairly broad application – it applies to more employees than just “ministers” and to more organizations that just “churches.”
In Justice Alito’s concurrence, he notes that the term or title “minister” is rarely if ever used in many religions including Catholicism, Judaism, Islam, Hinduism or Buddhism. The term “minister” is meant to refer to those who, as noted by the Court, “personify” the beliefs of the organization and who “minister to the faithful.” The Court essentially agreed holding that the ministerial exception “is not limited to the head of a religious congregation,” but extends to others who qualify as a minister. Thus, it is not necessary that the person against whom the ministerial exception is being asserted be titled a “minister,” or even that they be the head of the organization, but rather, the substance of their position must involve the religious mission of the organization.
2. BUT the exception does have its limits...
The scope of who will qualify as a minister was recently examined in Dias v. Archdiocese of Cincinnati, 2012 WL 1068165 (S.D.Ohio 2012) (slip copy). Here, the plaintiff served as the Technology Coordinator for two private Catholic schools. Plaintiff’s position was a non-religious position, plaintiff was a non-catholic, and she had no responsibility for religious instruction at these schools. Plaintiff notified each school that she was pregnant and sought maternity leave. Plaintiff was ultimately terminated for being pregnant and unmarried.
The schools argued that the ministerial exception applied because Plaintiff was a minister based upon her “role as a Catholic role model” and her “teaching and interacting with impressionable students.” Id. at *5. The district court looked to the factors considered by the Supreme Court’s in its decision in Hosanna-Tabor to determine when an individual qualified as a minister. Ultimately, the district court determined that the ministerial exception did not apply stating, “the authorities cited by Plaintiff show that it is not enough to generally call her a ‘role model,’ or find that she is a ‘minister’ by virtue of her affiliation with a religious school.” Id. at *5. This decision makes clear that there are some outer limits of the scope of the exemption.
3. Justice Alito’s concurring opinion offers a possible test.
While the Court declined to state a test for when someone qualifies as minister for purposes of the exception, Justice Alito’s concurring opinion did. Since this test was offered in a concurrence, it is certainly not the law; however, the Court’s reliance on Ms. Perich’s job duties signals that the test articulated by Justice Alito is a good starting point for any organization contemplating application of the exemption.
According to Justice Alito, courts “should focus on the function performed by persons who work for religious bodies.” Moreover, the ministerial exception should apply to any 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.” Id. at *17. At the very least, the job duties of the employee at-issue should have some relevance to conveying the religious message of the organization.
Applying Hosanna-Tabor to a Religious Organization
1. Evaluating your workforce.
It is unlikely that an organization will be able to apply the ministerial exception to all of its employees. An organization should review each position and determine whether the exception applies on a position-by-position basis with focus on whether that employee is responsible for conveying the religious message of that organization.
Where applicable, job descriptions and employee contracts should reflect the role that particular position plays in conveying the religious message of the organization. Moreover, employee handbooks should be written in such a way as to preserve the organization’s ability to invoke the ministerial exception where appropriate.
2. In the event of litigation – make sure you plead the exception.
Make sure you plead the ministerial exception as an affirmative defense in any action pending against your organization. In footnote 4 of the Supreme Court’s decision in Hosanna-Tabor, the Court resolved a circuit split concerning application of the ministerial exception – some courts had treated the exception as a jurisdictional bar while others treated it as a defense on the merits. In Hosanna-Tabor, the Supreme Court held that “the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”
In reaching its decision, the Court declined to adopt a rigid formula for determining when an individual qualifies as a “minister.” However, the Court did find a number of factors relevant in its decision, including:
1. The school held Ms. Perich out as a minister.
The congregation identified Ms. Perich as a “called” teacher and she held an official title, “Minister of Religion, Commissioned.” To qualify for this position, Ms. Perich was required to take courses in theological study, obtain the endorsement of her local Synod and pass an oral examination by a faculty committee. Even after obtaining the title, Ms. Perich continued to undergo periodic review of her ministerial responsibilities and received “continuing education as a professional person in the ministry of God.” While the school employed lay teachers who performed the same duties as called teachers, the Court focused on the Church only recognizing certain teachers possessing particular religious qualifications as “called.”
The Court cautioned that a title, alone, will not automatically make an individual a minister, but the Court did admit that a title is relevant. It was also relevant that underlying the title was “the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position.”
2. Ms. Perich held herself out as a minister of the Church.
The Court was also influenced by Ms. Perich identifying herself as a minister of the Church. In her termination documents, Ms. Perich stated that God was leading her to serve in the teaching ministry. Additionally, she claimed certain benefits including a special housing allowance on her taxes due to her position as a minister.
3. Ms. Perich’s job duties reflected a role in conveying the Church’s message and mission.
Finally, the Court looked to Ms. Perich’s job duties. The Church tasked Ms. Perich with leading others to Christian maturity and teaching them the Word of God. She taught a religion class four days a week, led them in prayer three times a day, took them to a chapel service once per week and even led the chapel service approximately twice per year. In total, Ms. Perich’s religious job duties only consumed an average of 45 minutes of each workday. According to the Court, “the amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations discussed above.”
Post Hosanna-Tabor and Lessons Learned
1. The ministerial exception has fairly broad application – it applies to more employees than just “ministers” and to more organizations that just “churches.”
In Justice Alito’s concurrence, he notes that the term or title “minister” is rarely if ever used in many religions including Catholicism, Judaism, Islam, Hinduism or Buddhism. The term “minister” is meant to refer to those who, as noted by the Court, “personify” the beliefs of the organization and who “minister to the faithful.” The Court essentially agreed holding that the ministerial exception “is not limited to the head of a religious congregation,” but extends to others who qualify as a minister. Thus, it is not necessary that the person against whom the ministerial exception is being asserted be titled a “minister,” or even that they be the head of the organization, but rather, the substance of their position must involve the religious mission of the organization.
2. BUT the exception does have its limits...
The scope of who will qualify as a minister was recently examined in Dias v. Archdiocese of Cincinnati, 2012 WL 1068165 (S.D.Ohio 2012) (slip copy). Here, the plaintiff served as the Technology Coordinator for two private Catholic schools. Plaintiff’s position was a non-religious position, plaintiff was a non-catholic, and she had no responsibility for religious instruction at these schools. Plaintiff notified each school that she was pregnant and sought maternity leave. Plaintiff was ultimately terminated for being pregnant and unmarried.
The schools argued that the ministerial exception applied because Plaintiff was a minister based upon her “role as a Catholic role model” and her “teaching and interacting with impressionable students.” Id. at *5. The district court looked to the factors considered by the Supreme Court’s in its decision in Hosanna-Tabor to determine when an individual qualified as a minister. Ultimately, the district court determined that the ministerial exception did not apply stating, “the authorities cited by Plaintiff show that it is not enough to generally call her a ‘role model,’ or find that she is a ‘minister’ by virtue of her affiliation with a religious school.” Id. at *5. This decision makes clear that there are some outer limits of the scope of the exemption.
3. Justice Alito’s concurring opinion offers a possible test.
While the Court declined to state a test for when someone qualifies as minister for purposes of the exception, Justice Alito’s concurring opinion did. Since this test was offered in a concurrence, it is certainly not the law; however, the Court’s reliance on Ms. Perich’s job duties signals that the test articulated by Justice Alito is a good starting point for any organization contemplating application of the exemption.
According to Justice Alito, courts “should focus on the function performed by persons who work for religious bodies.” Moreover, the ministerial exception should apply to any 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.” Id. at *17. At the very least, the job duties of the employee at-issue should have some relevance to conveying the religious message of the organization.
Applying Hosanna-Tabor to a Religious Organization
1. Evaluating your workforce.
It is unlikely that an organization will be able to apply the ministerial exception to all of its employees. An organization should review each position and determine whether the exception applies on a position-by-position basis with focus on whether that employee is responsible for conveying the religious message of that organization.
Where applicable, job descriptions and employee contracts should reflect the role that particular position plays in conveying the religious message of the organization. Moreover, employee handbooks should be written in such a way as to preserve the organization’s ability to invoke the ministerial exception where appropriate.
2. In the event of litigation – make sure you plead the exception.
Make sure you plead the ministerial exception as an affirmative defense in any action pending against your organization. In footnote 4 of the Supreme Court’s decision in Hosanna-Tabor, the Court resolved a circuit split concerning application of the ministerial exception – some courts had treated the exception as a jurisdictional bar while others treated it as a defense on the merits. In Hosanna-Tabor, the Supreme Court held that “the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”
