The Ministerial Exception makes it to the Supreme Court in Hosanna Tabor v. EEOC

Earlier this year, the Supreme Court first considered the validity and applicability of the “ministerial exception” – a common law principle that exempts religious institutions from anti-discrimination employment laws when hiring and firing clergy. The legal theory underlying the ministerial exception is rooted in the Establishment and Free Exercise Clauses of the First Amendment that preclude the government from establishing or giving preference to any one religion and interfering with religious practice. In many ways the ministerial exception is intuitive. The government can neither compel the Catholic Church to ordain a female priest nor require a synagogue to hire a non-Jewish rabbi. Although Courts of Appeal across the country have long recognized the “ministerial exception,” questions remained regarding the extent of the exception and the legal definition of “minister.” In Hosanna-Tabor Evangelical Church & School v. EEOC, the Supreme Court made its first attempt to address these issues.

Teacher Barred from Disability Claim under Ministerial Exception

In this case, the Court considered the case of Cheryl Perich, a fourth grade teacher at a Lutheran school. Ms. Perich, who held the title “Minister of Religion, Commissioned,” took disability leave from her position due to her struggle with narcolepsy. Ms. Perich refused to resign her position and threatened legal action when the school refused to reinstate her after she was medically cleared to return to work. The school responded by discharging Ms. Perich for “insubordination and disruptive behavior” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” Ms. Perich brought suit against the school, alleging retaliation under the Americans with Disability Act and the Michigan Persons with Disabilities Civil Rights Act.

The Supreme Court unanimously upheld the validity of the ministerial exception and found that it applied to Ms. Perich. Thus, Ms. Perich was barred from bringing her discrimination case against the school. In its decision, the Court unequivocally stated that the ministerial exception is not limited to the head of a religious congregation. However, the Court declined to provide a detailed definition of the term “minister.” The Court found that Ms. Perich was a minister because both the school and Ms. Perich held her out as a minister, she had received a significant amount of religious training to hold her title, and her job duties “reflected a role in conveying the Church’s message and carrying out its mission.”

Clergy Contracts after Hosanna-Tabor

Although the Supreme Court did not answer all of the outstanding questions regarding the ministerial exception in Hosanna-Tabor Evangelical Church & School, the Court’s decision highlights the importance of certain aspects of clergy employment agreements. For example, clergy employment agreements should include contract language regarding disability insurance and even procedures for contract termination in the unfortunate case where the clergy person is no longer able to perform his or her duties.  An alternative dispute resolution mechanism is also key.  In addition, the Supreme Court’s decision appears to broaden the working definition of “minister” for the purposes applying the ministerial exception.  Accordingly, religious educators, service leaders, youth leaders, and other employees of religious institutions who receive religious training and help convey the message and mission of the religious institution may find particular value in individual employment contracts. Although federal and state law may not provide anti-discrimination protections to such employees, carefully crafted employment agreements can close vulnerabilities that exist in the law.