Employment Law | Expert Legal Commentary
February 27, 2012
Hosanna-Tabor Evangelical Church v. EEOC: Supreme Court Confirms Ministerial Exception to Employment
Hosanna-Tabor Evangelical Church and School v. EEOC
Jeremy Gray of Zuber Lawler & Del Duca
The Supreme Court recently confirmed the applicability of the ministerial exception found under the First Amendment in precluding the application of employment discrimination laws to ministers. In Hosanna-Tabor Evangelical Church and School v. EEOC, 132 S.Ct. 694 (2012), the Supreme Court used the ministerial exception to preclude a minister’s claim of disability discrimination against her religious employer. The Court refused to entertain the minister’s argument that the religious reason given for her firing was merely pretext to her disability, lending broad latitude to religious organizations to freely choose its ministers.
At the time of the dispute, Cheryl Perich worked as a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School. The school distinguished between two categories of teachers – “called” teachers and “lay” teachers. Called teachers are those teachers “called” by God to their vocation. Called teachers must pass numerous academic requirements in theology and then may be called by a congregation, upon which he or she receives the title of “Minister of Religion, Commissioned.” By contrast, “lay” teachers are not required to have theological training, nor must he or she be Lutheran. Under church rules, called teachers could only be removed for cause, while lay teachers were hired on one-year renewable contracts. Id. at 699.
As a called teacher, Perich taught kindergarten and fourth grade. In addition to secular subjects such as math and language arts, she also taught religion class four days a week and led daily prayers. She taught for about five years in this capacity until she became ill with narcolepsy in June 2004. At the beginning of the 2004-2005 school year, Perich took disability leave due to her illness. On January 27, 2005, Perich notified the school that she could return to work the following month. However, the school told her that it already filled her position with a lay teacher for the remainder of the year. Id. at 700.
On January 30, school administrators held a meeting and determined that Perich was unlikely to be physically capable of returning to work during the 2004-2005 school year or the next. The school offered Perich a severance package in exchange for her voluntary resignation, but Perich refused. Id.
Perich reported for duty on February 22, but was sent home without resuming work. The school notified her that she would likely be fired. In April, the congregation voted to rescind Perich’s call and thus terminated her, citing her “insubordination and disruptive behavior.” Id.
Perich filed a charge with the Equal Employment Opportunity Commission (“EEOC”), alleging a violation of the Americans with Disabilities Act (“ADA”). Specifically, Perich alleged violations of 42 U.S.C. § 12101, which prohibits an employer from discriminating against a qualified individual on the basis of disability, and § 12112(a), which prohibits employer retaliation. Id. at 701.
The case reached the Supreme Court on the issue of whether Perich was a “minister” under the “ministerial exception” under the First Amendment. Originally, the district court granted summary judgment for Hosanna-Tabor, explaining that the suit was barred by the ministerial exception because she was a “minister” – the school treated Perich as a minister, held her out as a minister, and that the context of Perich employment alluded to her being a “minister” under the exception. Id.at 701. However, the Sixth Circuit found that Perich was not a “minister” because her duties as a called teacher were largely the same as those of a lay teacher, and thus Hosanna-Tabor could not claim the ministerial exception. Id. at 701-2. Hosanna-Tabor appealed to the Supreme Court.
Court Recognizes the First Amendment’s Ministerial Exception
The Supreme Court firstly recognized the validity of the ministerial exception. Under the First Amendment, the Court found that the Establishment Clause and the Free Exercise Clause both “bar the government from interfering with the decision of a religious group to fire one of its ministers.” Id. at 702. Specifically, the Court declared that “[t]he Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” Id.
Underlying these rules, the Court explained that, “(b)y 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. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” Id. at 706. Thus, the Court confirmed the ministerial exception, which applies these principles in precluding the application of the Civil Rights Act and other employment discrimination laws to the employment relationship between a religious organization and its ministers. Id. at 705.
In recognizing the ministerial exception, the Court rejected the EEOC’s stance that the ministerial exception was unnecessary due to the “implicit” right to freedom of association under the First Amendment, which applies to both religious and non-religious organizations. Id. However, the Court argued that the First Amendment is applied distinctly to religious organizations because of the Establishment Clause and the Free Exercise Clause. Id.
The Court also rejected the EEOC’s analogy to the Court’s opinion in Employment Div., Dept. of Human Resources of Ore. V. Smith, 494 U.S. 872 (1990). Id. In Smith, two members of the Native American Church were denied state unemployment benefits after they were fired for ingesting peyote, which is a crime in Oregon but is a religious practice in the Church. Even though the peyote was ingested for religious purposes, the Court held that the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes conduct that his religion prescribes.” Id. The Court distinguished Smith from the instant case by arguing that Smith regulated “outward physical acts,” while the instant case concerned “government interference with an internal church decision that affects the faith and mission of the church itself.” Thus, the Court refused to apply Smith. Id. at 707.
Court Holds that Perich was a Minister under the Exception
The Court held that Perich was a “minister” under the exception due to several factors. The Court first noted that none of the Courts of Appeals ever limited the definition to the head of a religious congregation. Id. From the facts of the case, the school held out Perich as a minister and required significant religious training. Id. Perich also held herself out as a minister to both the school and the IRS, in which she claimed a deduction only available to those “in the exercise of the ministry.” Id. at 707-8. Perich’s job duties included teaching religious classes and performing religious services. Id. In discussing these facts, the Court held that Perich was indeed a minister under the exception. Id.
In contrast, the Court found that the Sixth Circuit committed three errors in holding that Perich was not a minister. First, the Sixth Circuit was not persuaded by Perich’s title as a minister. The Court discussed that while title is not dispositive, the underlying training and mission of such a title is relevant to the analysis. Id. Second, the Sixth Circuit emphasized that lay teachers performed the same religious duties as Perich, but the Court noted that lay teachers were hired only when called teachers were unavailable. Id. Third, the Sixth Circuit weighed the relative amounts of time Perich spent on religious functions versus secular duties, and found that her religious duties took only 45 minutes of each workday, thus weighing against a finding that Perich was a minister. Id. The Court argued that this fact alone was overemphasized and should be considered along with other factors. Id. at 709.
Court Holds for the School; Dismisses Pretext Argument
Thus, the Court held that because Perich was a minister, the exception required dismissal of her claim against her religious employer. Id. The Court simultaneously ignored Perich’s suggestion that the school’s religious reason for firing her, namely that she violated the church’s commitment to internal dispute resolution, was pretextual. “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful — a matter strictly ecclesiastical — is the church’s alone.” Id. Justices Alito and Kagan, in their concurrence, noted that to probe whether there was pretext in a minister’s firing would require a problematic judgment about whether the church really believes in the reason stated for a minister’s firing. Id. at 715. Thus, the concurrence affirmed the core idea that “civil courts are in no position to second-guess” a church’s assessment in this case. Id. at 716.
The two concurrences agreed with the outcome, but contained varying opinions on how to define “minister” in the future. Justice Thomas declined to put forth a bright line or factor test, and instead suggested that courts “defer to a religious organization’s good-faith understanding of who qualifies as its minister.” Id. at 710. Justices Alito and Kagan, however, put forth a specific definition to include “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 712.
The Court’s decision in Hosanna-Tabor may lend some security to religious employers that courts cannot second-guess the dismissal of a minister, even when an employee alleges that the true reasons for the termination were hidden behind pretextual religious reasons. Religious congregations and schools should contact experienced employment counsel to find out how Hosanna-Tabor may affect your employment policies.
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