{"id":4130,"date":"2012-01-15T21:21:04","date_gmt":"2012-01-16T02:21:04","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/crcl\/?p=4130"},"modified":"2016-11-16T20:13:28","modified_gmt":"2016-11-17T01:13:28","slug":"employment-discrimation-and-who-is-a-minister","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/employment-discrimation-and-who-is-a-minister\/","title":{"rendered":"Employment Discrimation and Who is a "Minister"?"},"content":{"rendered":"

In a unanimous decision, the Supreme Court held on Wednesday<\/a> that a \u201cministerial exception\u201d barred a parochial school teacher from pursuing an employment discrimination claim against the church that runs the school. \u00a0In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission<\/em>, the church argued that the teacher, Cheryl Perich, was a minister, and thus that the decision to fire her was an internal church matter that should be free from judicial oversight.\u00a0 The court agreed with the church, and in doing so has greatly limited the ability of a “minister” to sue his or her religious organization for any form of employment discrimination.<\/p>\n

Chief Justice Roberts, writing for the court, recognized and applied a \u201cministerial exception\u201d (embraced by many lower courts, but not formally recognized by the Supreme Court until this case): if a church employee is a minister, he or she cannot pursue an employment discrimination claim in court, because such a claim would result in a judge or jury infringing on that religious group’s right under the Free Exercise Clause of the First Amendment to decide which ministers should and should not be retained.\u00a0 The opinion then addressed the question of what (legally) constitutes a \u201cminister.\u201d On this issue, Roberts greatly limited the judiciary\u2019s role in determining whether or not a church employee is a \u201cminister.\u201d \u00a0As Harvard CR-CL Law Review described back in October<\/a>, the plaintiff in this case had received the formal title of \u201cMinister of Religion, Commissioned\u201d after completing the requirements that entitled her to receive the parochial school\u2019s equivalent of tenure.\u00a0 The requirements included eight classes of theological study.\u00a0 Perich then taught predominantly secular subjects, but did also teach one daily religion class and led students in prayer.\u00a0 The Sixth Circuit applied a primary duties test\u2014a test used by several federal circuits\u2014to conclude that her \u201cprimary duties\u201d were secular.\u00a0 As a result, the Sixth Circuit held that Perich could pursue her employment discrimination claim, because she was not a minister for the purpose of invoking the ministerial exception, under the parameters provided by the primary duties test.<\/p>\n

Chief Justice Roberts rejected the \u201cprimary duties\u201d test and instead supported a broader exception.\u00a0 Roberts first stated the conclusion, holding that \u201cit was sufficient to conclude\u201d that the exception covered Perich.\u00a0 Importantly, the court would not \u201cadopt a rigid formula for deciding when an employee qualifies as a minister.\u201d\u00a0 Instead, Roberts pointed to several factors that persuaded the court to accept the church\u2019s claim that Perich was a minister: the formal title given to Perich by the church, the religion-based efforts involved in receiving that title (her classwork), Perich\u2019s own use of the title (she had claimed tax breaks given only to ministers), and the important religious functions she performed for the church (teaching its tenets).\u00a0 Furthermore, the opinion refused to consider whether or not there was merit to Perich\u2019s claim that the church\u2019s religious reason for firing her was pretextual: \u201cthat suggestion misses the point of the claim.\u00a0 The purpose of the exception is not<\/em> to safeguard a church\u2019s decision to fire a minister only when it is made for a religious reason.\u201d\u00a0 Instead, any<\/em> employment discrimination lawsuit must be dismissed when the church involved successfully demonstrates that the claim against it was brought by or on behalf of a minister of that church.<\/p>\n

Arguably, the court has set forth a strong precedent.\u00a0 This decision unambiguously rejects the \u201cprimary duties\u201d test used by several circuits, and appears to close the door on all employment discrimination claims, when the plaintiff is a \u201cminister.\u201d\u00a0 Still, two concurring opinions in Hosanna-Tabor<\/em> pointed out that certain elements of the court\u2019s role in determining whether a ministerial exception applies are still up for debate.\u00a0 Justice Clarence Thomas wrote that the Chief Justice\u2019s opinion did not provide enough deference to religious organizations, stating that \u201cjudicial attempts to fashion a civil definition of \u2018minister\u2019 through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the \u2018mainstream\u2019 or unpalatable to some.\u201d\u00a0 Justice Samuel Alito, joined by Justice Elena Kagan, wrote separately to clarify his understanding of the term \u201cminister.\u201d\u00a0 Justice Alito pointed out that some religions do not even have a structure where any members of the faith perform functions similar to those performed by a \u201cminister.\u201d\u00a0 Thus, Alito argued \u201cit would be a mistake if the term \u2018minister\u2019 or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one.\u00a0 Instead, courts should focus on the function performed by persons who work for religious bodies.\u201d\u00a0 Alito\u2019s resulting interpretation of this case: the ministerial exception applied to Perich because she engaged in \u201cimportant religious functions\u201d for the church.<\/p>\n

Attempting to fully delineate the circumstances in which a court could overrule a church\u2019s claim that an employee is a \u201cminister,\u201d in a fashion consistent with the strong First Amendment protection that Chief Justice Roberts articulated in this case, could have resulted in a controversial and messy standard.\u00a0 The opinion avoids the problems associated with applying the exception as broadly as Thomas argues for, or as specifically as Alito argues for.\u00a0 Instead, lower courts can continue to carve out areas in which exceptional circumstances may compel the conclusion that the ministerial exception need not apply, although Roberts did his best to limit the scope of such exceptions.\u00a0 But by refusing to precisely define “ministerial exception,” the Supreme Court will have the benefit of future case law to help it flesh out the ramifications of Wednesday\u2019s holding, if the court decides to revisit the issue in the future.\u00a0 Thus, Roberts made an effective decision in concluding, \u201c[T]here will be time enough to address the applicability of the [ministerial] exception to other circumstances if and when they arise.\u201d<\/p>\n

That being said, this opinion dramatically changes the scope of protection that was provided to religious employees under the \u201cprimary duties\u201d test.\u00a0 It allows churches to discriminate against a considerably larger subset of church employees in their hiring and firing decisions. Religious groups will shoulder a correspondingly greater burden of setting and applying internal policies that are capable of preventing such discrimination, because \u201cministers\u201d now receive no protection under civil rights or other discrimination statutes.\u00a0 Justice Sotomayor asked a difficult question at oral arguments<\/a>: whether a church could be protected against a lawsuit by invoking the ministerial exception, when an employee claims that the church was discriminating by retaliating against that employee for reporting sexual abuse.\u00a0 Through the holding in Hosanna-Tabor<\/em>, it appears the court decided that even under the situation described by Justice Sotomayor, when<\/em> a fired employee is subject to the ministerial exception, First Amendment considerations outweigh the countervailing public policy concerns involved in dealing with the potential unfairness.\u00a0 The 9-0 holding suggests that the court will not anytime soon be changing its decision to give substantial discretion to religious groups in determining who is subject to the ministerial exception.<\/p>\n","protected":false},"excerpt":{"rendered":"

In a unanimous decision, the Supreme Court held on Wednesday that a \u201cministerial exception\u201d barred a parochial school teacher from pursuing an employment discrimination claim against the church that runs the school. This opinion dramatically limits the scope of protection provided to religious employees under the \u201cprimary duties\u201d test, the standard previously used by several federal circuits. Although lower courts can continue to carve out areas in which exceptional circumstances may compel the conclusion that the ministerial exception need not apply, \u201cministers\u201d now receive no protection under civil rights or other discrimination statutes.<\/p>\n","protected":false},"author":52,"featured_media":4132,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center 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