Ministerial Exception: Supreme Court Finds in Favor of Religious Employers

By Alan Rauss & Lyndsay Ross

The Supreme Court handed down another employment law decision on July 8, 2020. In contrast to its recent employee-friendly Title VII decision, the Court offered strong protections for religious employers against discrimination claims by expanding upon the Ministerial Exception.

The Ministerial Exception is grounded in the First Amendment and bars certain discrimination claims against religious employers brought by the employees, or “ministers,” who carry out religious functions. The Ministerial Exception was first recognized by the Supreme Court in the 2012 case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, where it unanimously found that an employee of a church and religious school was a “minister.” The Court emphasized that any secular duties of the employee were outweighed by her religious duties. The Court noted that the purpose of the Ministerial Exception was not limited to hiring and firing decisions made for religious reasons; rather, the exception “instead ensures that the authority to select and control who will administer to the faithful is the church’s alone.”

While the Court declined to adopt any firm framework in Hosanna-Tabor for determining whether an employee is a “minister,” its latest decision offers more guidance. In Our Lady of Guadalupe School v. Morrissey-Berru  Justice Alito wrote for the 7-2 majority in holding that “what matters, at bottom, is what an employee does.”

In Morrissey-Berru, the Court considered various factors including job title, education and job duties before finding that two teachers at religious schools were ministers. Specifically, the teachers had duties to teach students about Catholicism, pray and attend Mass with students, and prepare them to participate in religious activities. The Court reprimanded the lower court for essentially using a checklist in its analysis, instead “call[ing] on courts to take all relevant circumstances into account and to determine whether each particular position implicate[s] the fundamental purpose” of the Ministerial Exception. Whether an employee has “minister” in his or her title is not dispositive or necessary.

In dissent, Justices Sotomayor and Ginsburg condemned the decision as employing a “simplistic” approach that “strip[s] thousands of school teachers of their legal protections.” The dissent highlighted that the teachers “taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.” The dissent concluded that the exception effectively gave the employers here a green light to fire an employee who was elderly and another who had breast cancer.

Going forward, religious institutions may have additional leeway in making employment decisions. Where a teacher is employed at a religious school, even if he or she lacks a “minister” title, has limited religious training and teaches mostly secular subjects, it is now increasingly likely that a court may agree the Ministerial Exception immunizes the employer from certain discrimination claims.