You May Not be Protected by Anti-Discrimination Employment Law

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Many of my friends who have chosen a religious vocation are unaware of the “ministerial exception,” yet that legal principle could radically affect their lives.  This legal doctrine says, in effect, that if you work for a religious institution, you could be fired for little or no reason, despite existing legal employment protections.  As the Rev. Dr. David Ball, an employment lawyer specializing in religion, says: “Ministers have the least legal protection for their employment of any type of employee.” And two consolidated cases currently with the Supreme Court could expand that “exception” and affect even more people employed by religious institutions.

Even though the recent June 15th Supreme Court decision clarified that sexual orientation is protected from employment discrimination, just as gender is, it is likely that the “ministerial exception” will still allow discrimination against LGBTQ persons.

It is not just ordained ministers, though, who are affected by this expansive legal principle. It potentially affects the civil rights and/or employment protections of hundreds of thousands of employees of all sorts of religious institutions. This exception would bar your case from court even if you are in a class normally protected against discrimination by federal law (race, religion, gender, age, disability, medical condition, national origin, etc.).

This legal doctrine was first expanded by the Supreme Court in 2012 (Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.). The decision allows religious employers – such as seminary administrators, Catholic school principals, denomination officials, and the like – to let go any employee by claiming the “ministerial exception.” The employer simply needs to assert that the employee was performing an important religious function and is no longer wanted.

The ministerial exception would bar your case from court even if you are in a class normally protected against discrimination by federal law.

This potentially affects even those employees who barely do anything religious, such as opening a class with a standard prayer. The person does not need to be in a leadership position. They do not need to be a priest, rabbi, or official minister. They do not need to teach the religion’s doctrine. They do not need to think of themselves as ministers. They do not even have to be a member of that particular religion.

Instead, they can simply be a fifth-grade teacher teaching mostly secular subjects in a Catholic school. They can be a Hebrew instructor in a Jewish day school. They can be a church musician. They can be a Jewish professor in a Christian seminary. No matter, they all come under the “ministerial exception” if the employer chooses to make the claim. And if an employee tries to bring a discrimination complaint to court, they can expect the case to be dismissed through a “summary judgement,” meaning the case will be not be heard in a trial. Motions for summary judgement can always be appealed, but in ministerial exception cases the chances of success on appeal are slim.

This is not an idle or technical problem. Such complaints are increasingly coming before courts and move beyond disability discrimination. A sixty-year-old teacher was asked by her principal to retire. When she said she was not yet ready, she, too, lost her job (Morrissey-Berreu v. Our Lady of Guadalupe School). A church musician who played the piano during Mass and had no doctrinal responsibilities asserted he was fired because of his age as well as his disability (Cannata v. Catholic Diocese of Austin). A tenured Jewish professor teaching Old Testament at a Protestant seminary asserted his tenure contract was broken when he was let go (Kant v. Lexington Theological Seminary). At the same school, a long-tenured Black Studies professor who was similarly dismissed claimed racial discrimination (Kirby v. Lexington Theological Seminary).

The ministerial exception is a recent extrapolation from founding American law. It started innocuously enough and was, at its inception, a bedrock of our American separation of church and state. Our Founders — coming over from Europe where state leaders often controlled the appointment of ministers — believed strongly that it was better if churches appointed their own leaders. In that way, they could take control of the doctrine they preached, the practices they instituted, and the functioning of their congregation. To this end, the Founders put two clauses into the First Amendment of the U.S. Constitution. One, the “Establishment Clause,” states that the government cannot select one religion for the entire country to follow. The other, the “Free Exercise Clause,” states that people can freely practice the religion of their choosing without government control. This has always made sense and our country has been rightly proud of our heritage of religious freedom.

The ministerial exception is a recent extrapolation from founding American law.

It seems to be common sense that a Jewish day school should not be required to hire or keep someone who violates basic Jewish tenets, say, teaching Jesus was God. It is understandable — whether or not you agree with it — that a Catholic college would rather not have a teacher who publicly proposes females be priests or vocally champions abortion rights. Our law recognizes that a religion has the right to have employees who uphold what the religion believes.

But under the umbrella of this original idea, things are changing and likely in a way the Founders would not have considered, much less approved. A landmark case, brought by the Evangelical Lutheran school teacher dismissed for narcolepsy, appeared before the Supreme Court in 2012 (Hosanna-Tabor). The Court’s decision disregarded religious employee rights under the Americans with Disabilities Act. And now an attempt at further expansion is before the Supreme Court in two consolidated cases (Our Lady of Guadalupe School v. Agnes Morrissy-Berru, and St. James School v. Darryl Biel representative for the estate of Kristen Biel). It is quite possible that their decision will further solidify the “ministerial exception.”

Things are changing and likely in a way the Founders would not have considered, much less approved.

As a result, employees of religious institutions could be further excluded from federal employment protections, not just the Americans with Disabilities Act. It could also exclude them from laws such as Title VII of the Civil Rights Act (disallowing discrimination on the basis of race, color, religion, gender, pregnancy, or national origin) and the Age Discrimination in Employment Act (disallowing age discrimination against anyone over 40). Given that salaries at religious institutions are usually lower than at secular ones, this seems like a double blow to people who have made sacrifices, often gotten specialized training, and dedicated their lives to this important work.

I fear that as more people become aware of this legal trend, it will further increase the drift away from organized religion. It will likely become another reason increasing numbers do not trust or support religion. It could easily intensify the individualizing of spirituality as historic religious communities give way to do-it-yourself spiritual practices. If nothing else, this trend will likely surprise and shock ordinary Americans who have come to rely on their ability to claim discrimination on the basis of race, color, religion, pregnancy, national origin, disability, medical condition, age, and gender.

This expansion of the ministerial exception, in my opinion, is not particularly good for American society or for religion. Historically in the U.S. – partly due to our ability to freely exercise the religion of our choice — organized religion has provided a significant amount of the social and spiritual capital which holds human relationships and society together. Because of the generally beneficial function religions have provided, their increasing loss will deeply affect the United States.

This expansion of the ministerial exception, in my opinion, is not particularly good for American society or for religion.

Therefore, I suggest that religious organizations should think twice about the increased authority that courts are according them. Rather than relishing it, they should think seriously about the unintended consequences. They should ponder, for instance, why the “best and the brightest” – even those with deep and solid religious faith — are not so willing anymore to dedicate their lives and careers to religious institutions. And they should think especially hard about the reasons religion is dramatically losing the trust, support, and numbers of everyday Americans.

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