Holier Than Though: Religious Organizations Free to Discriminationby James A. Walcheske (Walcheske & Luzi, LLC)
Earlier this year, the US Supreme Court gave religious organizations more freedom in hiring and firing employees by expanding the “ministerial exception” to anti-discrimination laws. What does this mean exactly? It means, churches and religious employers cannot be sued for discrimination by employees who qualify as a “minister.” Our everyday understanding of the term minister should not be confused with the Supreme Court’s definition. According to the Supreme Court, a minister is anyone who conveys or promotes the religious organization’s message. That’s a very broad and flexible standard. Unfortunately, that is as specific as the Supreme Court would get.
Cheryl Perich – A Ministerial Exception Case
Hosanna-Tabor Evangelical Lutheran Church and School hired Cheryl Perich as a lay teacher in 1999. Perich was asked, and agreed, to complete religious training. She became a called teacher, a teacher expected to perform her job “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.” Upon becoming a called teacher, Perich received a “diploma of vocation,” making her a commissioned minister. Perich primarily taught non-religious subjects. Only about a sixth of her time (45 minutes per day) was devoted to teaching religious classes, where she led students in prayer. She also attended school-wide chapel services each week and periodically led those services.
In 2004, Perich fell ill and was later diagnosed with narcolepsy. As a result of her narcolepsy, Perich went on disability leave. When she tried to return, Hosanna-Tabor told her the position had been filled and asked her to resign. Perich refused and threatened to sue the Evangelical Lutheran Church and School for discrimination. In response, Hosanna-Tabor fired Perich for “insubordination and disruptive behavior” and her “threatening to take legal action.” According to Hosanna-Tabor, its policies required the dispute to be resolved internally. Perich then sued Hosanna-Tabor for retaliation under the Americans with Disabilities Act (ADA), which prohibits an employer from retaliating against an employee because they:
– Opposed an act or practice made unlawful by the ADA
– Filed a charge or complaint regarding an act or practice made unlawful by the ADA
– Testified, assisted, or participated, in any manner, in an investigation, proceeding, or hearing under the ADA
The Equal Employment Opportunity Commission (EEOC) agreed with Perich and filed a discrimination lawsuit on her behalf. However, neither the appellate court or the United States Supreme Court agreed with the EEOC and Perich. According to the Supreme Court, Hosanna-Tabor had the right to fire Perich. The Constitution’s protection of religious freedom prohibited her from suing Hosanna-Tabor for violations of federal anti-discrimination laws. According to the Court, “the 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.”
The Supreme Court believes it is important for churches and religious organizations to freely choose and dismiss their leaders without government interference. Also known as the “ministerial exception” to employment discrimination – the concept that the First Amendment restricts claims concerning the employment relationship between a religious institution and its ministers.
In Perich’s case, the Supreme Court decided she qualified as a minister because she had “a role in conveying the church’s message and carrying out its mission.” Therefore, she fell within the ministerial exception and could not sue for discrimination. In its recent ruling, the Supreme Court declined to provide clear-cut guidance on who does and does not fall under the ministerial exception. General consensus has been teachers in religious schools, with formal religious training, who teach religious matters do fall within the ministerial exception. Those that teach purely non-religious classes, such as English and Math do not fall within the ministerial exception. For those that teach a mix of religious and non-religious classes, as Cheryl Perich did, the important question becomes where do we draw the line?