Ministerial Exception... Who Qualifies?

Author: Rose Huelskamp Serrano

Earlier this year, the United States Supreme Court issued a landmark decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S. Ct. 694, 697, 181 L. Ed. 2d 650 (2012), unanimously finding that the Free Exercise and Establishment clauses of the First Amendment bar the government from interfering with the decision of a religious group to fire one of its ministers.  Consequently, religious groups are able to make employment decisions affecting their ministers without being subject to employment discrimination lawsuits. 

In Hosanna-Tabor, the Supreme Court affirmed that the "ministerial exception" is not limited to heads of religious congregations, and therefore may apply to those with important religious functions. The question then becomes, which individuals qualify as "ministers" for the purpose of this exception?

Although the Supreme Court expressly declined to adopt a test that may be used for this determination, it did set forth various factors it deemed significant. Although the courts will be required to make this determination a case-by-case basis, the factors laid out by the Supreme Court, as set forth below, will assist religious organizations in identifying the characteristics of those to whom the ministerial exception may apply.

The Hosanna-Tabor case involved a discrimination and retaliation claim brought by the Equal Employment Opportunity Commission ("EEOC") under the American with Disabilities Act ("ADA") against Hosanna-Tabor. Hosanna-Tabor operates a Lutheran church and an elementary school. The school classifies teachers into two categories: "called" teachers and "lay" teachers. To become a "called" teacher, an individual must complete a course of religious study and receive a call from the congregation. Once called, a teacher receives the formal title of "Minister of Religion, Commissioned." Although lay and called teachers generally perform the same duties, lay teachers were hired only when called teachers were unavailable.

In 1999, Cheryl Perich began work as a "lay" teacher for Hosanna-Tabor. Shortly thereafter, she started the formal process to become a "called" teacher. Ms. Perich completed eight college level-courses in various religious subjects, obtained the endorsement of the local Synod district, and passed an oral examination conducted by a faculty committee at a Lutheran college. Thereafter, she was called by the congregation. Ms. Perich accepted the call and was designated a commissioned minister.

During Ms. Perich’s employment by Hosanna-Tabor, she taught secular subjects. She also taught a religion class, led students in prayer, and occasionally led chapel services. She began the 2004-2005 school year on disability leave. When Ms. Perich attempted to come back to work in February 2005 after being medically cleared, she was informed the school had already hired a lay teacher to fill her position for the remainder of the 2004-2005 school year. The school offered Ms. Perich a "peaceful release" from her call and offered to pay a portion of her health insurance premiums in exchange for her resignation.

Ms. Perich refused to resign and informed the school she had consulted with an attorney and intended to assert her legal rights. Hosanna-Tabor subsequently terminated her employment based on her "insubordination and disruptive behavior," as well as the damage she had done to her "working relationship" with the school by "threatening to take legal action." According to Hosanna-Tabor, Ms. Perich's threat to sue violated its belief that Christians should resolve their disputes internally.

Ms. Perich filed a charge with the EEOC, claiming her employment had been terminated in violation of the ADA. The EEOC brought suit against Hosanna-Tabor on these grounds and Ms. Perich intervened in the litigation. Hosanna-Tabor brought a motion for summary judgment claiming the lawsuit was barred by the ministerial exception because the claims at issue concerned the employment relationship between a religious institution and one of its ministers. The district court agreed and held that Ms. Perich was barred from litigating her retaliation claims. On appeal, the Sixth Circuit reversed the ruling concluding that Ms. Perich was not a minister and therefore the exception did not apply.

After considering all the circumstances of Ms. Perich's employment, the United States Supreme Court unanimously concluded Ms. Perich was a minister covered by the ministerial exception. In making this determination, the Supreme Court recognized for the first time in its jurisprudence that a ministerial exception exists under the Free Exercise and Establishment clauses of the First Amendment. In doing so, it explained that requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, violates the Religious Clauses of the First Amendment because it interferes with the internal governance of the church thereby depriving the church of control over the selection of those who will personify its beliefs.

After recognizing the existence of the ministerial exception, the Supreme Court went on to examine all of the circumstances surrounding Ms. Perich's employment to determine whether she was a "minister" covered by the ministerial exception. The Supreme Court unanimously found that the exception applied in this case because Ms. Perich was trained and formally commissioned as a minister, taught a religion class, and led students in prayer. The Court identified the following factors as being significant in recognizing Ms. Perich’s status as a "minister": (i) her title; (ii) the religious and educational training required for her job; (iii) the tax benefits she enjoyed; (iv) her teaching load included a religion class; and (v) she lead her students in daily prayers and devotions.

While not all employees of a religious organization will be covered by the ministerial exception, the above factors will assist religious organizations in identifying what type of religious-related functions will likely evoke the exception. If you have any questions regarding this topic or any other employment-related matters, please contact one of DSMW’s employment attorneys.



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