In Brief: Hosanna-Tabor v. EEOC
The Court’s Unanimous Decision
On Jan. 11, the Supreme Court issued a ruling in a significant church employment dispute, giving religious organizations wide latitude in hiring and firing clergy and other employees who perform religious duties. In its unanimous decision, the high court explicitly recognized a legal doctrine known as the “ministerial exception.” Lower courts have used the doctrine to exempt religious organizations from anti-discrimination laws and other statutes that regulate how employers treat their workers, but this is the first time that the Supreme Court has ruled on the constitutionality of the doctrine. The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, involved the dismissal of a teacher at a Lutheran school in Michigan who performed both secular and religious duties. The teacher argued that she had been fired in violation of laws protecting people with disabilities. Specifically, she claimed that the religious school had retaliated against her for asserting her rights under the Americans with Disabilities Act. But the high court ruled that the ministerial exception trumps anti-discrimination laws. “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Chief Justice John Roberts Jr. wrote for the court. “But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” A September legal analysis by the Pew Forum examined the main arguments in the case.
Background on the Case
Published Sept. 21, 2011
On Oct. 5, 2011, the Supreme Court will hear oral arguments in a case that could help determine how much latitude religious organizations have in making employment decisions about clergy and others who perform religious duties. The case centers on a legal doctrine known as the “ministerial exception.” The Supreme Court has never expressly ruled on the doctrine, but judges in lower federal courts have used it to exempt religious organizations from anti-discrimination laws and other statutes that regulate how employers treat their workers. These decisions have emphasized that courts should not intervene in employment matters when doing so would require them to evaluate the qualifications or performance of employees who carry out religious functions, such as preaching or leading worship. In Hosanna-Tabor v. EEOC, the Supreme Court will decide whether a teacher who devoted part of her day to religious duties should be considered a ministerial employee in a wrongful dismissal suit. More importantly, Hosanna-Tabor offers the court an opportunity to shrink or expand the reach of the ministerial exception, thereby putting its stamp on an important doctrine that has been applied in different ways by lower federal and state courts.
The Hosanna-Tabor grade school in Redford, Mich., was operated by a congregation affiliated with the Lutheran Church-Missouri Synod (LCMS). (The congregation closed the school in 2009.) Like other schools run by the LCMS, Hosanna-Tabor employed two types of teachers: lay teachers, who were hired by school administrators to serve one-year, renewable contracts; and “called” teachers, who were approved by the congregation and hired on an open-ended basis.
The notion of being “called” has deep roots in Christianity. It refers to the belief that certain individuals are chosen by the church to perform religiously important tasks or roles. In the Lutheran Church-Missouri Synod, teachers can be called only after they meet specific requirements, notably the completion of significant theological and other coursework. Even then, someone can be called to teach only by a vote of the congregation for whom he or she will work. Once a teacher is called to his or her position, he or she is deemed to be a “commissioned minister,” a position without the preaching or sacramental duties of ordained ministers but with important religious functions.
Teacher Cheryl Perich received her call from the Hosanna-Tabor congregation in 2000. Perich taught her fourth-grade students a range of secular subjects, including math, social studies and music. She also taught religion four days a week, regularly led her students in prayer and in a daily devotional, and planned and led worship services – duties also assigned to lay or contract teachers at the school.
In June 2004, Perich was hospitalized for what was eventually diagnosed as narcolepsy, a chronic sleep disorder that can make people fall asleep at inappropriate times. During the first months of her illness, Perich was put on disability leave, given full pay and benefits, and told that she would have a job when she returned. In December 2004, Perich’s doctor informed her that she would be able to return to work in two to three months, information that Perich passed along to school administrators. However, around this time, the school hired another instructor to teach Perich’s class for the remainder of the academic year. In addition, school officials expressed concern that Perich would not be able to fulfill her duties if she returned, a judgment ratified first by the school’s board and then by the Hosanna-Tabor congregation.
On Jan. 30, 2005, the school, citing concerns about her health, asked Perich to voluntarily resign her call. Perich refused, reiterated that she was ready to report back to work and even showed up for work one day – without the school’s permission. During this time, Perich also said that if the dispute could not be resolved, she would take legal action under the Americans with Disabilities Act of 1990 (ADA), which prohibits all but the smallest employers from discriminating against people with disabilities. The act also prohibits employers from retaliating against employees who attempt to assert their rights under the act.
On April 10, 2005, the Hosanna-Tabor congregation voted to rescind Perich’s call, citing a number of factors, including continuing concerns about her health and ability to function as a teacher. The church also said it wanted to be fair to the teacher who had been hired to replace her and who would have to be let go if Perich resumed her duties. In addition, the congregation claimed that it was troubled by Perich’s threats to sue, especially given that the church has long taught that Christians should resolve disputes internally rather than in the courts. (Perich would later say that she was never informed about the church’s internal dispute-resolution process.)
On May 15, 2005, Perich filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Hosanna-Tabor’s actions violated the Americans with Disabilities Act. The EEOC and Perich then filed suit in federal district court alleging that the church had retaliated against Perich – in violation of the ADA – by rescinding her call after it learned that she had a disability and was contemplating legal action. On Oct. 23, 2008, the district court decided against Perich, ruling that since she had been called as a commissioned minister, her firing was subject to the ministerial exception and thus was not within the court’s purview. On March 2, 2010, this decision was overturned by the 6th U.S. Circuit Court of Appeals, which ruled that Perich was not covered by the ministerial exception because most of her duties – teaching nonreligious subjects – were secular. The church then appealed the ruling to the Supreme Court, which on March 28, 2011, agreed to hear the case.
Hosanna-Tabor centers its arguments on a longstanding constitutional principle that courts should not rule on religious questions, such as determining what is the correct interpretation of church doctrine. One outgrowth of this principle is the ministerial exception, which its defenders say is aimed at keeping courts out of employment disputes involving religious institutions and their clergy, or other employees who perform important religious functions.1
Hosanna-Tabor argues that without the ministerial exception, religious organizations could be forced to make employment decisions that run counter to their core beliefs and doctrines. For instance, if Roman Catholics, Orthodox Jews and other religious groups with a tradition of an all-male clergy were successfully sued for gender discrimination, they would be forced to accept women into their clerical ranks.
In its brief to the Supreme Court, the church points out that virtually all federal appeals courts — and many state courts — have adopted the ministerial exception, and not only in cases involving ministers, priests, rabbis and other clergy. Courts also have applied the exception to employees who are not clergy but perform functions “important to the spiritual and pastoral mission of the church.” Notably, the church says, courts have applied the ministerial exception to some parochial school teachers on the grounds that they are an important part of a religious institution’s efforts to pass its faith and traditions on to the next generation.
In its brief, the church acknowledges that Perich spent the bulk of her time teaching secular subjects, but it emphasizes that she also performed crucial religious functions, including teaching religion four days a week, leading her students in prayer three times each day and regularly planning and even leading worship services. In addition, the church says, it instructed Perich and other teachers to integrate religion into the secular subjects they taught, so that those classes had a religious element. Indeed, Hosanna-Tabor states, “Perich was the Church’s primary means of teaching the faith to her students. She gave her students more religious instruction than all other employees and volunteers combined.” Furthermore, the church argues, Perich was more than a teacher, having “occupied the ecclesiastical office of commissioned minister” and been called by the congregation. They point out that such a call involves completing up to eight college-level religion courses, passing an oral exam and being selected by the congregation. Indeed, they say, the church believes the call “ultimately comes from God.”
Finally, Hosanna-Tabor contends, courts should be wary of trying to determine what role certain employees do or do not play in a religious organization and of policing a church’s internal disciplinary procedures. The church says that if the court were to order Perich reinstated or award her monetary damages, it would be settling a religious question – in this case, determining who does or does not fulfill a ministerial function in the church. The church maintains that the Supreme Court has ruled repeatedly that delving into such religious questions is unconstitutional.
The EEOC and Perich center their arguments on the principle that, with rare exceptions, religious organizations are subject to the same laws and legal requirements as everyone else. This includes the Americans with Disabilities Act, which, they say, clearly prohibits employers from retaliating against a disabled worker who has threatened legal action in order to counter allegedly discriminatory behavior.
Like other federal civil rights laws, the ADA includes provisions that protect religious organizations from being forced to hire or retain someone who does not share their religious identity or beliefs. But like other civil rights laws, the EEOC and Perich say, the ADA does not allow churches and other religious groups to discriminate on any other basis, such as race or disability. Furthermore, they argue, nothing in the statute exempts religious organizations from complying with the provisions prohibiting retaliation – which according to them is what is at issue in this case.
The EEOC and Perich further contend that the ministerial exception does not insulate Hosanna-Tabor from its responsibilities under the ADA. While they agree with Hosanna-Tabor that the ministerial exception is grounded in the First Amendment’s Free Exercise and Establishment Clauses, they argue that neither of the clauses can be used to justify the broadly construed ministerial exception claimed by Hosanna-Tabor.
While the Free Exercise Clause guarantees religious liberty, the Supreme Court has ruled, most notably in its landmark decision Employment Division v. Smith (1990), that the clause does not grant churches the right to ignore valid laws, even when those laws impede religious practice.2 As a result, the EEOC and Perich say, the Free Exercise Clause would not require a ministerial exception that overrrode otherwise valid statutes, including the anti-retaliation provision of the ADA.
The other potential source of the ministerial exception is the Establishment Clause, which courts have interpreted as imposing limits on state involvement with religion. But, the EEOC and Perich argue, applying the ADA’s anti-retaliation provisions would in no way entangle the state with the Hosanna-Tabor church. They emphasize that Perich is not seeking reinstatement, only monetary damages. Even if the court were to rule against Hosanna-Tabor, they say, the church would not be forced to rehire someone it no longer wants to employ, but only to pay damages for the harm it has caused.
Finally, Perich and the government argue that applying Hosanna-Tabor’s expansive view of the ministerial exception “would have profound and profoundly adverse consequences for the operation of the anti-discrimination laws.” If the church’s view of the ministerial exception were to become law, they claim, all teachers at religious schools (more than 300,000 people) would be unprotected from virtually any kind of workplace discrimination, regardless of what they taught. Indeed, they say, if the court were to accept Hosanna-Tabor’s broad view of the ministerial exception, churches could evade a host of workplace protections, from labor laws to whistleblower statutes, by classifying all teachers as “ministerial” and then dismissing anyone who did something the church opposed, such as attempting to expose some kind of wrongdoing in the organization.
A ruling by the Supreme Court for Hosanna-Tabor that broadly defines the ministerial exception would likely lead lower courts in future cases to defer to the judgment of a church or religious organization when determining whether an employee is “ministerial” for purposes of applying the ministerial exception. If the Supreme Court adopted such an approach, lower courts would be more inclined to accept the religious organization’s judgment that one of its employees has ministerial duties and to rule that the ministerial exception applies. The high court also could rule that the ministerial exception applies to all relevant parts of the ADA, including the provisions prohibiting discrimination and retaliation. A ruling of this sort would broaden the scope of the ministerial exception beyond the parameters already set by lower courts.
Another possibility is that the Supreme Court might rule more narrowly in favor of Hosanna-Tabor by concluding that it was the combination of Perich’s called status and her significant religious teaching responsibilities that made her a ministerial employee. Such a fact-based ruling would offer considerably less guidance to lower courts as they grapple with the ministerial exception in the future.
The high court might give neither side a clear victory by sending the case back to the federal district court. For instance, the high court could instruct the district court to ask Hosanna-Tabor to demonstrate that its dismissal of Perich was rooted in religious precepts and not done simply because it was impractical to bring her back in the middle of the school year. However, such a ruling might be interpreted as a win for those who oppose a robust, broadly applied ministerial exception, because it would shrink the parameters of the existing exception by adding this extra requirement. Indeed, such a ruling would require churches to demonstrate that they had specific religious justifications for their employment decisions, such as disapproval of the content of a minister’s sermons. In the wake of such a ruling, religious entities would need to be clear from the start about the religious precepts behind their employment actions if they hoped to be shielded by the ministerial exception.
A Supreme Court decision that broadly favors the government and Perich would likely shrink the ministerial exception, limiting it to narrow circumstances that involve religious questions. More specifically, the ministerial exception would continue to apply in situations that clearly require a court to decide disputed questions of religious doctrine, such as cases that hinge on whether an instructor in a parochial school was properly teaching religion or whether the leader of a church was preaching a message that was contrary to that church’s teachings. If the court followed this path, religious organizations would be able to successfully claim the ministerial exception much less frequently. In particular, the exception would rarely, if ever, apply to teachers who, like Perich, taught primarily secular subjects and were disciplined or dismissed for matters unrelated to their religious duties.
A narrower victory for the government and Perich might focus more on the issue of retaliation against employees who report, or threaten to report, allegedly unlawful behavior. In light of the public’s interest in encouraging reporting of potentially unlawful discrimination and other wrongful acts, the court might rule that the ministerial exception – even if it applies to conventional anti-discrimination claims – does not apply to anti-retaliation claims, except perhaps for employees whose duties are almost entirely religious.
Because the high court has never before ruled on the ministerial exception, the Hosanna-Tabor case offers the justices an opportunity to mold and shape a doctrine that has existed in lower federal courts for 40 years. The lack of even one prior Supreme Court decision on the doctrine makes it difficult to predict how the court ultimately will rule, but the Hosanna-Tabor case has the potential to change the ministerial exception, perhaps quite significantly.
This report was written by Ira C. Lupu, F. Elwood and Eleanor Davis Professor of Law at George Washington University Law School; David Masci, Senior Researcher at the Pew Forum on Religion & Public Life; and Robert W. Tuttle, David R. and Sherry Kirschner Berz Research Professor of Law & Religion at George Washington University Law School.
1 For a more thorough explanation of the ministerial exception and the constitutional questions surrounding churches and civil litigation, see the Pew Forum’s March 2011 legal backgrounder Churches in Court: The Legal Status of Religious Organizations in Civil Lawsuits. (return to text)
2 For a more thorough discussion of Employment Division v. Smith, see the Pew Forum’s October 2007 legal backgrounder A Delicate Balance: The Free Exercise Clause and the Supreme Court.(return to text)