The United States Supreme Court has ruled on the Hosanna-Tabor Evangelical Church case we highlighted in our October 31, 2011 newsletter, and no one is surprised by the outcome. As many had predicted, the Court gave its blessing to the "ministerial exception" that allows religious organizations to take employment actions without fear of the hiring and firing of their workforce.
The First Amendment's Free Exercise Clause precludes the application of federal law to certain church officials. The ministerial exception derives from this premise. In Hosanna-Tabor Evangelical Church v. EEOC, the Court unanimously held that the ministerial exception applies in the employment law context and rejected the Sixth Circuit's "primary responsibility" test that placed Ms. Perich (a "called teacher") outside of the exception.
Perich claimed that she was terminated due to her disability (narcolepsy) and retaliated against for threatening to sue under the Americans with Disabilities Act ("ADA"). While the district court quickly dismissed the case under the ministerial exception, the Sixth Circuit weighed Perich's non-religious responsibilities against her religious responsibilities and determined her primary duties were not ministerial in nature. The Sixth Circuit gave her and the EEOC the go-ahead to pursue their lawsuits against the church.
The Supreme Court disagreed. Writing for the Court, Chief Justice Roberts found that not only did the ministerial exception bar federal employment law claims, but a "called teacher," even one who primarily executed secular responsibilities, was still a minister under the exception. While the Court was reluctant to adopt a rigid test for applying the ministerial exception, the Court did consider the following factors: "the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church" in concluding that she was covered by the ministerial exception. The Court specifically rejected the Sixth Circuit's contention that too little of Perich's work day was spent on religious duties for the exception to apply.
The Free Exercise Clause does not go so far as to allow violation of law in the name of religion. In its petition, EEOC relied upon Employment Div., Dept. of Human Resources of Ore. V. Smith, which upheld the denial of unemployment benefits to individuals terminated for ingesting peyote. There, the Supreme Court held that the obligation to comply with a valid and neutral law of general applicability (such as a law that denies state benefits to drug users) does not violate the Free Exercise Clause. The EEOC claimed that the ADA was both neutral and general and therefore the ministerial exception did not apply.
The Court did acknowledge that the ADA is both neutral and general, but it limited Smith to government regulation of "outward physical acts." The hiring and firing of ministers, the Court found, "concerns government interference with an internal church decision." Telling the church which ministers to hire and which to fire was the kind of activity that the Free Exercise Clause prohibits.
So what does Hosanna-Tabor mean for religious institutions and their employment practices? Teachers at religious schools may not have all of the federal protections of their secular school counterparts, such as the right to sue for employment violations. Where a teacher is a commissioned minister and both the school and the teacher hold her out as a minister, the ministerial exception may likely apply despite the teacher's many secular responsibilities.
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