“Ministerial Exception” Upheld in Campus Ministry Context

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Are campus ministries exempt from anti-discrimination employment laws, with respect to their religious leaders?  The federal Sixth Circuit Court of Appeals has emphatically said, “Yes.”  Its decision expands application of the “ministerial exception” doctrine that protects faith-based organizations from certain discrimination claims.  The decision also raises important questions concerning judicial application of the doctrine.

1.         Background to the “ministerial exception” – religious exemptions from certain discrimination laws.

The U.S. Supreme Court has long recognized the First Amendment’s protection for religious organizations to control their own internal affairs, including the selection of their religious leaders and other staff.  The following brief survey provides a framework for understanding the extent of that control, within the context of the Sixth Circuit’s new decision.

a.              Title VII, Section 702.  “Religious” employers may discriminate on the basis of religion.

Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of an individual’s race, color, religion, sex, national origin, age, or disability.  42 U.S.C. § 2000e-16.  Section 702 of Title VII exempts religious organizations from Title VII's prohibition against discrimination in employment on the basis of religion. This makes sense – a religious group will want to ensure that its clergy hold beliefs consistent with the group’s spiritual doctrines.  However, legal questions frequently arise concerning the application of section 702:  What is a “religious” employer? Which employees are covered?

b.         Amos:  Section 702 extends to secular activities of religious employers.

In the landmark case of Corp. of Presiding Bishop v. Amos (1987), the U.S. Supreme Court affirmed that section 702 also applies to a religious organization’ssecular workers and activities.  A religious group may require adherence to certain doctrines as a condition for employment for any position, not just positions involving religious activities.  Thus, a mosque could require Islamic faith as a condition of employment for a maintenance worker, for example. 

c.         A special case:  the “Ministerial Exception”

While Amos and section 702 deal with exceptions for religious discrimination, for “ministers” (a legal term of art), the exceptions to Title VII and other federal laws prohibiting discrimination are much broader.  In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC  (2012), the Supreme Court recognized the “ministerial exception.”  In Hosanna-Tabor, a parochial school teacher sued the church/school where she worked, but not under Title VII.  Instead the teacher sued the church/school under the Americans with Disabilities Act (“ADA”), claiming that she had been discriminated against based on her disability. In holding for the church/school, the Court reasoned that, because it was a “religious group,” and because the teacher was a commissioned minister, with religious duties as part of her job, it was exempt from the teacher’s ADA discrimination claims. According to the Court, the church had a right to govern its internal affairs, especially with regard to the hiring and termination of its “ministers.”  Because of this “ministerial exception,” the church/school’s decisions regarding her employment had to be left alone as a matter of First Amendment freedom of religion. 

In the wake of Hosanna-Tabor, two important questions remain about the application of the ministerial exception: 

(1)           What is a “religious group” such that it would be eligible for the exception for its ministers; and

(2)           Who is a “minister,” such that the religious group could claim the exception for the employee?

In the Sixth Circuit opinion below, the Court considered both questions.

2.         Sixth Circuit broadens application of ministerial exemption

 In Conlon v. InterVarsity Christian Fellowship,[1] the Sixth Circuit used theHosanna Tabor framework to determine whether the ministerial exception applied to an employee in a campus ministry organization.  The court determined the religion clauses' ministerial exception barred the plaintiff’s federal and state employment-law claims.  In doing so, the court applied the Hosanna-Tabor two-part test as follows. 

            a.         Part 1:  The campus ministry was a “religious group.”

The Sixth Circuit pointed out that Hosanna-Tabor allows for the assertion of the ministerial exception when the employer is a “religious group.”[2]  The employer does not have to be “a traditional religious organization such as a church, diocese, or synagogue, or an entity operated by a traditional religious organization,”[3] and the exception “does not turn on its being tied to a specific denominational faith.”[4]  Rather, it may apply to any “religiously affiliated entity” whose “mission is marked by clear or obvious religious characteristics.”[5]  The exception has been applied to such organizations as a Jewish nursing home, a Methodist hospital, and a Christian campus ministry.[6]  The Conlon court pointed to InterVarsity Christian Fellowship’s name, mission, and purpose in determining that the exception applied.[7]

b.         Part 2: The campus spiritual director was a “minister.”

            Pastors, rabbis, imams, and clergy are not the only individuals who count as “ministers” for purposes of the exception.  In Hosanna-Tabor, the Supreme Court listed four factors that led it to conclude that the plaintiff-employee was a minister:

(1) The employee’s formal title;

(2) The substance reflected in that title;

(3) The employee’s own use of that title; and

(4) The important religious functions the employee performs for the church.[8]

The Court, however, did not state that all four factors had to be present for the ministerial exception to apply or that other factors are irrelevant.[9]  The Sixth Circuit, in its analysis, determined the presence of the first and fourth factors was sufficient.[10]  This meant that Ms. Conlon’s title of “spiritual director” or “Spiritual Formation Specialist” and her role in “cultivat[ing] ‘intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines’” qualified her as a “minister.”[11]

 It is not clear whether presence of a single factor or any other two factors would be enough to qualify an employee as a minister, nor that other factors are always irrelevant.  Nor is it clear that the Sixth Circuit’s test will be adopted by every circuit court.  What is clear is that the Sixth Circuit has widened its definition of “minister.” 

3.         Religious groups may not waive the exception.

In Conlon, the employee claimed that InterVarsity could not claim the ministerial exception because it had waived its rights to invoke the exception.  Prior to Hosanna-Tabor, the Sixth Circuit had held such waiver possible.[12]  In the wake of Hosanna-Tabor, however, the Sixth Circuit changed its position.  The court stated, “[t]he ministerial exception is a structural limitation imposed on the government by the Religion Clauses, a limitation that can never be waived.”[13]

4.         The exception applies to state discrimination laws.

Some states have specifically recognized the ministerial exception,[14] but others have not.  In Conlon, the plaintiff asserted state-based discrimination claims along with federal claims.  The Sixth Circuit held that the state-based claims were defeated by the federal First Amendment right.  As noted in Conlon, “The federal right would defeat any Michigan statute that, as applied, violates the First Amendment… Moreover, the Establishment Clause applies with the same force against the States through the Fourteenth Amendment, as does the Free Exercise Clause…”[15]  In other words, the federal right trumps any potential state claims. 

5.         Conclusion:  First Amendment protections still strong for religious employers.

What does all this mean?  Generally speaking, it means that religious employers enjoy strong protection in employment discrimination cases involving those classified as “ministers.”  In Conlon, the Sixth Circuit may have broadened the definitions of both “religious group” and “minister.”  Applying Hosanna-Tabor, the Sixth Circuit further determined that the ministerial exception cannot be waived and that the exception functions as a defense to state discrimination claims as well.  For religious groups, this decision is a hopeful sign for protection of religious freedoms.