{"id":3819,"date":"2011-10-16T23:23:04","date_gmt":"2011-10-17T03:23:04","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=3819"},"modified":"2016-11-16T20:36:32","modified_gmt":"2016-11-17T01:36:32","slug":"employment-discrimination-law-in-parochial-schools","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/employment-discrimination-law-in-parochial-schools\/","title":{"rendered":"Employment Discrimination Law in Parochial Schools"},"content":{"rendered":"

\u201c[T]his is tough and I\u2019m stuck on this.\u201d\u00a0 Justice Breyer expressed the prevailing theme of the October 5th oral arguments before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission<\/em>.\u00a0 The transcript of the oral arguments is available here<\/a> and you can listen to the arguments here<\/a>. \u00a0At issue is whether the rights of a parochial school teacher were violated under the Americans with Disabilities Act (ADA) when she was fired by her Lutheran-affiliated school for insubordination.\u00a0 That teacher, Cheryl Perich, had gone on disability leave for a sudden, unexpected illness.\u00a0 She was eventually diagnosed as narcoleptic and told she would soon be fully functional at school with the use of medication.\u00a0 But when she attempted to return, school officials told her that she should resign\u2014citing the danger to student safety posed by her condition\u2014and the school did not change its position even after Perich repeatedly explained and documented that her doctor had reaffirmed her good health.<\/p>\n

After Perich informed the school that she would assert her legal rights against discrimination if the two sides were unable to reach a compromise, Hosanna-Tabor fired her for insubordination.\u00a0 Perich complained to the EEOC who brought this lawsuit on her behalf, alleging that the school retaliated against her in violation of the ADA.\u00a0 Hosanna-Tabor does not dispute that they fired Perich because she threatened to sue.\u00a0 Instead, they argue that applying ADA protections to this situation would infringe upon the parochial school\u2019s religious freedom under the First Amendment, because Lutheran doctrine states that disputes between church ministers must be resolved internally.\u00a0 Perich taught predominantly non-religious subjects and thus her activities devoted to religion\u2014teaching one religion class and leading short prayer sessions\u2014took up only forty-five minutes of each seven-hour school day.\u00a0 However, in order to become a tenured teacher, Perich had been required to complete colloquy classes on various aspects of the Christian faith.\u00a0 After completing these classes, Perich and all other tenured teachers in the Lutheran school district had received the title of \u201ccommissioned minister.\u201d<\/p>\n

 <\/p>\n

The ADA is subject to a ministerial exception<\/em>, which protects the First Amendment-derived rights of religious organizations to make employment decisions in accordance with their religious beliefs.\u00a0 The scope of this exception is the tricky subject of this case.\u00a0 At oral argument, the parties argued for very different standards.\u00a0 Representing Hosanna-Tabor was Professor Douglas Laycock, an expert on religious liberty law at the University of Virginia.\u00a0 Professor Laycock first argued that a discharge claim by a minister should never be heard in court, based upon a central First Amendment principle: the government must stay out of deciding who should be a religious official.\u00a0 Justice Sotomayor quickly pointed out a troubling aspect of his proposed approach:<\/p>\n

\u201cNow, we know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and I believe children. Regardless of whether it’s a religious belief or not, doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious . . . ?\u00a0 And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e. reporting it?\u00a0 Under your theory, nothing survives if the individual is a minister, no . . . private claim.\u201d<\/p><\/blockquote>\n

Laycock then cautiously acknowledged that a limited carve-out to the exception could be appropriate, but only if the government interest involved was something other than protecting ministers from discrimination (such as protecting the aforementioned exploited child), and then only if such an interest was \u201csufficiently compelling to justify interfering\u201d in the church-minister relationship.\u00a0 Justices Sotomayor and Kennedy asked whether a claim could proceed in pretext cases, cases where a plaintiff would allege both discrimination and that the church did not have a religion-related reason for the discriminatory act. \u00a0Laycock rejected this approach on the grounds that judges would have to interpret religious doctrine to determine whether or not a church interest was actually involved.\u00a0 Justice Scalia made his position on this issue quite clear, interrupting Laycock at one point to say \u201cI think your point is that it’s none of the business of the government to decide what the substantial interest of the church is.\u201d<\/p>\n

Chief Justice Roberts then pressed Laycock on what defines a religious minister for purposes of the ministerial exception.\u00a0 One of the few undisputed conclusions of the arguments was that it is the court\u2019s job to determine whether Perich was actually a minister.\u00a0 The dispute is over what that definition should be.\u00a0 Laycock eventually summarized his definition: \u201cA minister is a person who holds ecclesiastical office in the church or<\/em> who exercises important religious functions, most obviously, including teaching of the faith.\u201d\u00a0 However, the justices were not convinced by the broad \u201cimportant religious functions\u201d category, which would encompass any employee who teaches any<\/em> amount of religion.\u00a0 Responding to Laycock, Justice Kennedy strongly believed that whether Perich satisfied the legal definition of minister was not clear: \u201cI suppose when we do that we say, how many secular functions do you perform?\u00a0 And that’s what this case is.\u201d The Sixth Circuit decision<\/a> that the Supreme Court is reviewing is at odds with Laycock\u2019s argument.\u00a0 They applied a \u201cprimary duties\u201d test, under which they held that Perich was not a minister because her duties were largely secular.\u00a0 The justices\u2019 tough questioning on this issue made clear that they consider the legal definition of a religious minister to be a difficult but essential task to delineating the boundaries of the ministerial exception.<\/p>\n

On behalf of the EEOC, United States Assistant Solicitor General Leondra Kruger took the position that a completely different test should govern this case: a general balancing of interests test.\u00a0 Kruger argued that the First Amendment interest in question should be balanced against other constitutional interests to determine whether anti-discrimination law should apply.\u00a0 The justices were skeptical for several reasons, but appeared most concerned that Kruger\u2019s proposed test would force a court to evaluate the relative importance of religious doctrines.\u00a0 Justice Breyer told Kruger that it was \u201cobvious\u201d that courts could not force the Catholic Church to hire female priests based on sex discrimination law, and asked Kruger if this exemption from discrimination law suggested that the Lutheran doctrine of internal dispute resolution was relatively less important to practicing the Lutheran faith.\u00a0 Kruger responded that the two situations do not suggest that the Catholic doctrine was relatively more important, but that \u201cthe government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.\u201d<\/p>\n

Even solely in terms of evaluating the governmental interests involved, Justice Breyer was not comfortable with Kruger\u2019s response: \u201cYou are saying that going to court is a more fundamental interest than a woman obtaining the job that she wants, which happens in this case to be a Catholic priest . . . . You may be right, but it isn’t obvious to me that the one is the more important than the other.\u201d<\/p>\n

 <\/p>\n

The court\u2019s questions to Kruger suggest they will not adopt her general balancing test, because of the potential damage to important First Amendment values.\u00a0 Beyond that, the oral arguments demonstrated that the justices are having a difficult time delineating the boundaries of the ministerial exception. \u00a0Professor Laycock clearly sketches out a broad ministerial exception that would prevent judges from interpreting religious doctrines where a church’s interpretation could reasonably vary from that of a judge, but his acknowledgement of exceptions provides support for the government\u2019s position: at some level, to determine whether interference in the church-minister relationship is justified, courts must evaluate religious doctrine.<\/p>\n","protected":false},"excerpt":{"rendered":"

\u201c[T]his is tough and I\u2019m stuck on this.\u201d Justice Breyer expressed the prevailing theme of the oral arguments before the Supreme Court in Hosanna-Tabor v. EEOC. The oral arguments demonstrated that the justices are having a difficult time delineating the boundaries of the ministerial exception. Professor Laycock sketches out a broad ministerial exception that would prevent judges from interpreting religious doctrines where a church\u2019s interpretation could reasonably vary […] 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