The Supreme Court of the United States has significantly broadened the scope of legal protections for religious employers against employment-related claims. The Court’s July 8, 2020 decision in Our Lady of Guadalupe Sch. Morrissey-Berru St. James Sch. v. Biel,[1] clarifies and broadens the so-called “ministerial exception,” which forbids or excepts courts from intervening in employment-related disputes involving workers engaged in religious activities. This important legal protection promotes First Amendment religious freedom rights by avoiding secular courts’ interference with employment decisions that may involve religious aspects.
A. Ministerial Exception’s Applicability and Importance
Under the ministerial exception doctrine, employers are shielded from liability for employment-related actions involving their “ministers.” A fundamental inquiry for applying this doctrine is identifying who is a “minister” for purposes of the exception. [2] Since 2012, following the Court’s upholding of the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC[3], courts have answered this question by evaluating multiple factors, sometimes in a checklist-style assessment of the employee’s qualifications and function.
Now, under the Court’s new holding, the formulaic checklist approach for determining whether employees are ministers is out. Instead the Court ruled more functionally as follows: “What matters, at bottom, is what an employee does.”[4] The new, significantly broadened standard of applicability means that employees of religious organizations whose jobs “lie at the core of the religious organization’s mission” are likely “ministers” for purposes of the exception and therefore may not sue their employers for adverse employment actions. In other words, if an employee’s job is to carry out religious activities as part of the employer’s religious mission, then a court will not scrutinize the employer’s hiring, disciplinary, or termination decisions regarding such employee, whether or not such decisions could otherwise give rise to a Title VII or other unlawful discrimination claim.
In response to the Court’s holding, worshipping bodies, religious schools, and other religious nonprofits should thus carefully consider employees’ job responsibilities, employment agreements, and review mechanisms to ensure that they maximally leverage the Court’s new definition of who is a “minister” for employment purposes. Our law firm’s corresponding recommendations are set forth in more detail in Section C below.
B. The Journey from Hosanna-Tabor to Our Lady of Guadalupe
1. The Hosanna-Tabor Test
In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court considered the claim of a teacher who was fired by her employer church, and then filed a lawsuit against the church under Americans with Disabilities Act (“ADA”). In holding for the Church, the Court recognized the constitutionality of the ministerial exception. The Church explained that the ministerial exception is grounded in the First Amendment,[5] and therefore a church’s decisions regarding employment of its ministers is a fundamental part of the church’s right to free exercise of its religion:
“The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”[6]
For the Hosanna-Tabor Court, determining who is a “minister” and subject to the ministerial exception involved consideration of several factors as follows:
- The employer’s holding out the employee as a minister, pursuant to some title or certification;
- The employee’s formal education in religious subjects;
- The employee’s holding herself out as a minister; and
- The employee’s job duties as carrying out the religious mission of the employer.
In setting forth the above factors, the Court was careful to note that it was not setting forth a “rigid formula for deciding when an employee qualifies as a minister.”[7] Rather the Court would consider whether the ministerial exception applied, given all the circumstances of the employee’s employment. Based on its assessment of the facts and circumstances, the Court held the teacher plaintiff was a minister and that the ministerial exception applied. Accordingly, the EEOC was barred from pursuing discrimination-based claims against the church.
2. After Hosanna-Tabor and Leading Up to Our Lady of Guadalupe
In the aftermath of Hosanna-Tabor, the test to determine who was a “minister” for purposes of the exception was regularly but inconsistently applied by courts. While some courts applied the factors generally[8], other courts used the factors as a kind of checklist, where absent a majority of the factors, the exception was held not to apply.
In the two cases under review by the Supreme Court in Our Lady of Guadalupe, the Ninth Circuit Court of Appeals used such a checklist approach to determine whether the teacher plaintiff in each of those cases was a “minister”. In Morrissey-Berru v. Our Lady of Guadalupe Sch. [9] the Ninth Circuit noted the teacher’s absence of a religious title, religious training, religious credentials and ministerial background. While the teacher had religious duties, such duties were not dispositive. The Ninth Circuit concluded the ministerial exception did not apply.[10] On similar reasoning, the Ninth Circuit reached the same conclusion regarding the teacher in Biel v. St. James Sch.[11], the second case under review in Our Lady of Guadalupe. While both teachers had religious duties, those duties were outweighed by the other factors.
Thus, while constitutionality of the ministerial exception had been recognized by the Court in Hosanna-Tabor, the extent and applicability of the exception was widely disputed. In reaching its decision in Our Lady of Guadalupe, the Court directly addressed the above split.
3. An Expanded Standard: The Our Lady of Guadalupe Test
a. A New Definition and Broad Application of the Exception
In Our Lady of Guadalupe, and in stark contrast to the Ninth Circuit’s formulaic approach, the Supreme Court focused on the nature of the teachers’ job responsibilities, and how their work related to the religious employer’s mission. The religious nature of the teachers’ work and their furtherance of the school’s mission trumped the absence of the other Hosanna-Tabor factors. According to the Court, the appropriate test for determining whether the ministerial exception applies is: “What matters, at bottom, is what an employee does.”[12]
Under this simple restatement of the test, an employee whose job responsibilities are at the center of, and further the religious purposes of an organization is a “minister.” As applied to the religious schools before the Court, the Court noted that, “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”[13] For this reason alone, the absence of the other Hosanna-Tabor factors notwithstanding, the Court held that the teachers in both cases were “ministers” for purposes of the exception.
b. Rejection of Rigid Checklists
After setting forth the proper test, the Court took the Ninth Circuit to task for “misunderstanding” its decision in Hosanna -Tabor. Specifically, the Court faulted the circuit court for applying the factors from Hosanna-Tabor in a rigid, formulaic way, despite the Court’s express instructions not to do so: “Both [Ninth Circuit] panels treated the circumstances that we found relevant in that case as checklist items to be assessed and weighed against each other in every case, and the dissent does much the same. That approach is contrary to our admonition that we were not imposing any “rigid formula.”[14] According to the Court, the formulaic approach resulted in a “distorted analysis” by the Ninth Circuit.[15]
c. History Lessons and the First Amendment Require the New Test.
The proper analysis, according to the Court, is grounded in careful consideration of the purpose for the First Amendment. The Court reviewed British Acts of Uniformity from the 16th and 17th Centuries, The Schism or Established Church Act of 1714, and relevant colonial acts, all of which required religious connection with the state. The First Amendment was a reaction against such state-control of religious organizations. According to the Court, “The constitutional foundation for our holding [in Hosanna-Tabor] was the general principle of church autonomy to which we have already referred: independence in matters of faith and doctrine and in closely linked matters of internal government.[16]
For the Court, religious education is one such area that is indisputably linked to religious groups’ faith, doctrine and religious missions, and so protected under the First Amendment. The Court surveyed a wide range of religious traditions and noted the careful integration of religious education within such traditions. The Court’s survey demonstrated the “close connection that religious institutions draw between their central purpose and educating the young in the faith.”[17]
Bolstered by its historical constitutional survey and evaluation of the role of religious education to religious groups, the Court concluded, “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”[18] Based on this conclusion, the Court reversed both Ninth Circuit decisions: the teachers in both cases were “ministers” for purposes of the exception.
C. Take-Aways for Employers
Through the Court’s broadened scope of protection for religious employers facing employment related claims, this ruling highlights several advisable employment-related practices for employers seeking to leverage the Court’s new broad definition of “ministers” as follows.
- Religious employers should consider specific religious aspects of employees’ job duties. Notably, the Court did not summarily assess the teachers’ duties. Instead the Court recited specific ways in which the teachers in these two cases engaged their students religiously, such as through worshipping with them, training students in observing Mass, spending time in prayer with them, and teaching them sacred doctrine. The specific elements of the teachers’ day-to-day work was significant in the court’s assessment. Following the Court’s lead, religious organizations should identify specific employee duties and how each duty advances the organization’s religious mission.
- Document the connection of employees’ work duties to the express religious purpose of the organization. In its decision, the Court noted that teachers’ work was “at the core of the religious organization’s mission.” The Court pointed to the school’s employee handbooks, job descriptions, employment agreements, and other official school and diocesan publications supporting such conclusion. This factor was determinative in its conclusion that the teachers were ministers.
Religious employers should be careful to provide written job descriptions and describe how the employee’s duties specifically advance the organization’s religious missions. The organization’s sincerely held religious beliefs should be linked with information included in job postings, job listings, employee handbooks, employment agreements, outward facing publications, and other organizational documents. Be sure to explain the connection between the assigned duties and the ways in which such duties advance core religious values. Specify how bona-fide occupational qualifications (BFOQs) are connected with the organization’s belief system. Use holy writ or applicable scriptures to emphasize the orthodox religious connections between work duties and religious mission.
- Incorporate Religious Compliance Aspects in Job Performance Reviews. In Our Lady of Guadalupe, the Court noted that the teachers’ job performance was based in part on the degree to which the teachers advanced the schools’ religious missions. Religious employers should consider including similar elements in their employee job performance reviews. In addition to the standard metrics of job performance, we recommend including metrics that will evaluate the employee’s success in specific religious objectives. For example, a religious employer may review the number of times an employee leads prayer, participates in an evangelistic activity, or otherwise is involved in distinctively religious aspects of their jobs.
- Employees Need Not Be Co-Religionists. Interestingly, the Court expressly refused to require that for purposes of the ministerial exception, employees be “co-religionists”, that is, members of the same denomination, sect, or religion. Certainly, a religious organization may itself require such co-religionist qualifications, but religious may hire individuals with diverse religious views provided that their jobs advance the core of the organization’s religious mission. Again, all such requirements, or lack thereof, should be carefully documented as per recommendation (2), above.
In sum, the Court’s ruling recognizes that employers’ decisions about hiring, discipline, and termination for employees who carry out religious activities, as part of the employer’s religious mission, should be left alone. They are not appropriate for a secular court to scrutinize. As a result of the Court’s ruling, religious employers thus should enjoy greater assurance that their employment decisions involving workers with religious duties will not be subject to legal claims. Such protection should not of course invite unfair employer decisions, but rather serves as a powerful reminder that the judiciary’s role must necessarily be circumscribed where religious beliefs and practices are implicated.
[1] Our Lady of Guadalupe Sch. Morrissey-Berru St. James Sch. v. Biel, No. 19-267, 2020 WL 3808420 (U.S. July 8, 2020).
[2] Please note that the ministerial exception is distinct from the clergy housing allowance, which is available to “ministers” for income tax purposes.
[3] Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171.
[4] Our Lady of Guadalupe Sch. Morrissey-Berru St. James Sch. v. Biel, 2020 WL 3808420 at 10.
[5] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. at 190.
[6] Id. at 188.
[7] Id. At 190.
[8] See e.g. Penn v. New York Methodist Hosp., 884 F.3d 416, 424 (2d Cir.), cert. denied, 139 S. Ct. 424 (2018) (holding that a hospital chaplain’s provision of religious care to patient was enough to apply the ministerial exception).
[9] Morrissey-Berru v. Our Lady of Guadalupe Sch., 769 F. App'x 460, 461 (9th Cir.), cert. granted, 140 S. Ct. 679, 205 L. Ed. 2d 448 (2019), and rev'd and remanded sub nom. Our Lady of Guadalupe Sch. Morrissey-Berru St. James Sch. v. Biel, No. 19-267, 2020 WL 3808420 (U.S. July 8, 2020).
[10] Id.
[11] See generally, Biel v. St. James Sch., 911 F.3d 603 (9th Cir. 2018), cert. granted, 140 S. Ct. 680, 205 L. Ed. 2d 448 (2019), and rev'd and remanded sub nom. Our Lady of Guadalupe Sch. Morrissey-Berru St. James Sch. v. Biel, No. 19-267, 2020 WL 3808420 (U.S. July 8, 2020).
[12] Id. At 10.
[13] Id.
[14] Our Lady of Guadalupe Sch. 2020 WL 3808420, at *12.
[15] Id. At 12-13.
[16] Id. At 8.
[17] Id. At 10-12.
[18] Id. At 14.
