Daily Archives: May 30, 2012

Unprotected: The Sweeping Implications of the New Extension of the Ministerial Exception

By: Lana Yang

Back in November fellow journal member Judy Massis-Sanchez wrote about the then upcoming Supreme Court case Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church and School.[1] To recap the facts, Perich was a former teacher at an ecclesiastical school who claims that the church unlawfully discriminated against her in violation of the American’s with Disabilities Act[2] because she suffered from narcolepsy. In District Court Hosanna-Tabor moved for summary judgment invoking the “ministerial exception”. The District court found for Hosanna-Tabor but was reversed at the appellate level.[3] The Supreme Court granted certiorari.

The question before the Supreme Court in this case was whether ministers, as employees of the church, are protected by employment discrimination laws if fired for a discriminatory purpose.[4] In a unanimous decision, the Court held that ministers are not protected by employment discrimination laws because doing so would infringe on a religious organization’s discretion in maintaining a work-force that upholds the religion’s mission:

We agree that there is such a ministerial exception. 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.[5]

The holding leaves many commentators uneasy about the implications of the extension. First, it sweeps broadly and touches on some of most coveted aspects of employment law such as workplace bias, retaliation, and fair hiring and firing practices. Not surprisingly, the EEOC and Perich in their brief had mentioned the far reaching consequences of the extension.[6] However, this concern was quickly dismissed by Chief Justice Roberts as “a parade of horribles” that had no teeth because the ministerial exception has existed among the lower courts for 40 years and has not caused any superfluous litigation.[7]

Second, how will the court in subsequent cases decide who is a minister and who is not? The court emphasized that it was not going to adopt a rigid standard[8] in determining which employees are considered ministers, leaving much discretion to the church. Some commentators have questioned if Perich was even a minister[9] as she was a teacher who had some of the same duties as a minister.[10] Furthermore, although it seems at face value that Perich was just a teacher, the church also stressed that they held Perich out to be a minister to the public.[11] Hence, the Court seems to look to whether an employee has a role in carrying out the teachings and values of the religions organization.[12] Still, this is a broad definition, and still leaves the question of to what degree does an employee have to be involved in “carrying out” the religious mission of the church?

Lastly, how will the Court balance the interests of the individual against the interests of the church? Chief Justice Roberts ends the opinion with the following statement: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”[13]

Thus, the Court leaves us with a big threshold matter –when will the interest of enforcement of employment discrimination laws outweigh (if ever) the interests of a religious group’s furtherance of its teachings? Only time will tell, and it will surely be an issue to watch in employment law.


[1] Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553 (U.S. argued Oct. 5, 2011).

[2] The ADA prohibits an employer with fifteen or more employees from discriminating against a qualified individual on the basis of their disability in regards to the various conditions of employment, including termination.

[3] E.E.O.C. v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769 (6th Cir. 2010).

[4] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694, 699 (2012).

[5] Id. at 706.

[6] Brief for Respondent Cheryl Pirech, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 2011 WL 3380507 (U.S.), 7 (U.S., 2011).

[7] Hosanna-Tabor, 132 S. Ct. 694, 710 (2012).

[8] Id. at 697.

[9] Donna Ballman, Work for a Church or Religious School? You May Have No Civil Rights, The Huffington Post (Jan. 18, 2012) http://www.huffingtonpost.com/red-room/work-for-a-church-or-reli_b_1202918.html.

[10] Supreme Court Upholds ‘Ministerial Exception’ From Anti Bias Laws, Public Broadcasting Service (Jan. 11, 2012) http://www.pbs.org/newshour/bb/law/jan-june12/scotus_01-11.html.

[11] Hosanna-Tabor, 132 S. Ct. 694, 701 (2012).

[12] The Ministerial Exception, The New York Times (Jan. 13, 2012) http://www.nytimes.com/2012/01/13/opinion/the-ministerial-exception.html.

[13] Hosanna-Tabor, 132 S. Ct. 694, 710 (2012).

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