Alerts and Updates
Supreme Court Expands the Ministerial Exception, but Not Without Limits
July 13, 2020
Religious organizations may wish to look at their policies and practices to maximize the likelihood that certain employees may qualify as ministerial employees.
In 2012, the Supreme Court of the United States unanimously ruled that under the “ministerial exception,” an employee was precluded from bringing a claim of disability discrimination against the religious school where she taught. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), the Supreme Court held 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.”
After Hosanna-Tabor, a number of appellate courts ruled on who is a minister for purposes of the “ministerial exception.” On July 8, 2020, in a 7-2 decision, the Supreme Court in Our Lady of Guadalupe School v. Morrissey-Berru clarified the standard for the ministerial exception, expanding the range of employees potentially subject to the ministerial exception. (The case was consolidated with St. James School v. Biel.)
In Hosanna-Tabor, the Supreme Court had focused on four factors, with a heavy emphasis on title. In his concurring opinion, Justice Alito (joined by Justice Kagan) wrote that the focus of the ministerial exception should be “on the function performed by the persons who work for religious bodies.”
In Our Lady of Guadalupe School, the Court effectively adopted Justice Alito’s concurrence in Hosanna-Tabor. The majority opinion in Our Lady of Guadalupe School can best be understood by the following: “What matters, at bottom, is what the employee does.”
In looking at what the two teachers actually did, the Supreme Court held in Our Lady of Guadalupe School that the two teachers fell under the ministerial exception and thus were precluded from bringing their age and disability claims respectively. The majority emphasized that the two teachers were required, among other things, to: teach religion (among other topics); infuse religious teachings into secular topics; model the Catholic faith by their words and deeds; pray with their students; and prepare their students for participation in religious sacraments. Further, the teachers were evaluated on their fulfilment of their respective school’s religious mission.
In holding that the two teachers fell within the ministerial exception, the Supreme Court rejected a number of arguments including:
- The employees’ job titles did not include the word minister;
- Their formal religious education was not substantial; and
- The employees did not hold themselves out to the community as ministers.
More generally, the majority quoted Justice Alito’s concurrence from Hosanna-Tabor:
The “ministerial” exception… should apply to 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. (Emphasis added.)
While the Supreme Court decision focused on who is a minister, a preliminary issue is whether the employee works for a ministry. Though the issue is beyond the scope of this Alert, a ministry is not limited to a religious congregation or school. It may include religious fellowships and other faith-based organizations,
It is important to note that the ministerial exemption goes beyond the religious exemption under Title VII. Under Title VII, religious organizations are permitted to give preferences to members of their own organizations; the statutory exemption does not provide a potential defense to other types of discrimination claims. (In some states, the right of religious organizations to provide a preference to its members is not as broad as it is under Title VII.)
Religious organizations may wish to look at their policies and practices to maximize the likelihood that certain employees may qualify as ministerial employees. The summary of the Supreme Court’s decision in this Alert includes some of the factors that religious employers may wish to consider in assessing the scope of the ministerial exception as it applies to their employees.
For More Information
If you have any questions about this Alert and the ministerial exception in general or as it may apply to employees in particular, please contact Jonathan A. Segal, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.