Employees of certain religious institutions, which can include religious schools, congregations, and faith-based nonprofit organizations, are sometimes confronted with a “morals clause” in their employment agreements. In the context of a religious employer-employee relationship, these clauses may seek to regulate an employee’s off-duty conduct to conform to a religious doctrine and its moral and ethical code. A recent story on National Public Radio’s All Things Considered explored the controversial decision of Bishop O’Dowd High School, a Catholic school in Oakland, CA, to add a morals clause to its teachers’ contracts. The program discussed how students, parents, teachers, and administrators viewed the provision and its impact on the community. Although not the primary focus of the story, the program briefly touched on a possible repercussion of morals clauses in the aftermath of the Supreme Court’s 2012 decision regarding the “ministerial exception” in employment law. This interesting relationship between morals clauses and the ministerial exception is worth further discussion.

In Hosanna-Tabor Evangelical Church & School v. EEOC, the Supreme Court unanimously upheld the validity of the ministerial exception, a common law doctrine that prevents “ministers” from suing religious employers in federal and state courts for breaching anti-discrimination and other employment laws. As previously discussed in our July 6, 2012 post on Hosanna-Tabor, the Supreme Court declined to provide a specific definition or test to determine if a particular employee constituted a “minister” within the meaning of the exception. The Court instead employed a totality of the circumstances analysis to this determination, thereby tasking lower courts with making a case-by-case decision on who constitutes a minister. Courts around the country have found that the term “minister” for the purposes of the exception extends beyond traditional pulpit clergy to include other employees of religious institutions such as teachers, music directors, and administrators. Notably, in Hosanna-Tabor, the Court found that a fourth grade teacher at a Lutheran School was a minister because she was held out as one, received religious training for her position, and her job duties put her in a role where she was conveying the Church’s message.

When an individual signs off on a morals clause such as the one required at Bishop O’Dowd High School, that employee ultimately agrees – as a condition of employment – to conform his or her behavior to a religious moral and ethical code. If an employment dispute arises between that employee and his or her religious employer, a court may consider this agreement to live according to a religious code in determining whether the ministerial exception applies and if the suit is barred from federal or state court. Although agreeing to a morals clause may not be enough in of itself to establish that an employee is a “minister” within the meaning of the exception, it could help tilt the scales in the employer’s favor. Employees of religious institutions should be aware of this possible repercussion before agreeing to a morals clause.