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The “Ministerial Exception” as provided under the First Amendment prevents employment discrimination actions brought by ministers

By Jason A. Paskan, Esq.

Recently, the Supreme Court of the United States held that where the "ministerial exception" applies, an employment discrimination action brought against a religious employer must be dismissed in order to prevent government interference with an internal church decision that affects the faith and mission of the church itself. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, (2011), Slip Opinion No, 10-553.

In Hosanna-Tabor, a teacher brought an employment discrimination against a Lutheran School for terminating her employment after she was diagnosed with narcolepsy. At the school, there were two types of teachers, "lay" and "called". In order to qualify for a "called" teacher position, one had to take theological study classes at a Lutheran college or university and pass an oral examination proctored by a faculty committee. Only after these requirements were met could a teacher be "called" by the congregation. "Lay" teachers did not need this additional training, but were generally only hired when "called" teachers were unavailable. Regardless of a teacher's title, they generally performed the same duties. One difference was that "called" teachers could only be terminated by a super majority of the congregation whereas "lay" teachers were provided with one-year renewable contracts.

Although originally hired as a "lay" teacher, the plaintiff in Hosanna-Tabor eventually performed the necessary steps to become a "called" teacher. After becoming a "called" teacher, the plaintiff was provided with a "diploma of vocation" and taught a number of subjects, including religion, in addition to leading the students in prayer and attending weekly school-wide chapel services, even leading the service twice per year.

At the end of her first year as a "called" teacher, the plaintiff in Hosanna-Tabor was diagnosed with narcolepsy and needed to take disability leave. During this leave period, the plaintiff was replaced with a "lay" teacher for the remainder of the school year. It was determined by the congregation that the plaintiff was unlikely to be able to become healthy enough to return the following year and requested the plaintiff's resignation in exchange for partial payment of her health insurance benefits. The plaintiff in Hosanna-Tabor decided that she was ready to return to work and produced a note from her doctor asserting same. The school informed the plaintiff that there was no longer a position for her at the school. Despite being so informed, she showed up to the school and refused to leave until she received documentation that she had reported for work. After this disturbance at the school, the school decided to terminate her employment all together.

The plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that her employment had been terminated in violation of the Americans with Disabilities Act ("ADA"). Asserting that the "ministerial exception" prevented government interference in a religious employment matter, the school moved for summary judgment. Specifically, the school asserted that the plaintiff was fired for a religious reason. The District Court agreed with the school and granted summary judgment, but this decision was reversed on appeal. Notably, the Court of Appeals emphasized the fact that both "lay" and "called" teachers had the same general employment responsibilities. The suit was then brought before the Supreme Court of the United States.

After providing a detailed analysis of the history of the First Amendment, the Supreme Court of the United States recognized the existence of the "ministerial exception" and explained:

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments.

While the Supreme Court was unwilling to adopt a rigid formula for determining when a person qualified as a minister for purposes of the exception, the Court did note a number of elements in Hosanna-Tabor that permitted the exception to apply. Upon completion of her requirements, the plaintiff was provided with a "diploma of vocation," received the title of "minister of religion, commissioned" and was tasked with performing that office in accordance with the teachings and practices of the Lutheran church, performing the responsibilities outlined above. Recognizing that the job duties of "lay" and "called" teachers were similar, the Court stated that the Court of Appeals placed too much emphasis on this issue and offered an analysis to remedy this error. Additionally, the completion of the requirements themselves was seen as support for the application of the "ministerial exception" in this case.

Accordingly, the Supreme Court of the United States, in applying the "ministerial exception" to the facts in Hosanna-Tabor, reversed the decision of the Court of Appeals because ruling otherwise would require a church to accept a minister it did not want and such an order "would have plainly violated the church's freedom under the Religion Clauses to select its own ministers."

Recognizing the existence of the "ministerial exception" and offering a detailed analysis in applying it to employment discrimination actions, the Supreme Court clearly appreciated the separation of church and state, choosing not to interfere with a religious entity's employment decisions. It is important to note that the "ministerial exception" will not apply to all religious employees and that discriminatory actions could meet EEOC charges and lawsuits premised on violations of the ADA. While the "ministerial exception" may not apply to all employees, where it does apply, the government has no authority to interfere with an employer's decision to terminate a minister despite potential discrimination liabilities available to similarly situated secular employees. In conclusion, if there is a question as to whether the "ministerial exception" applies, Hosanna-Tabor is the most recent and authoritative decision to use as a starting point.