High Court Upholds Religious School 'Ministerial Exception' to Ada Bias Charge

Business Insurance
January 11, 2012

http://www.businessinsurance.com/article/20120111/NEWS07/120119966?tags=|70|75|305|340|303

WASHINGTON—A religious school can claim a "ministerial exception" to a discrimination charge under the Americans with Disabilities Act for a teacher who also taught secular subjects, the U.S. Supreme Court ruled unanimously Wednesday.

However, in its decision in Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission et al., the nation's highest court said the ministerial exception bars only employment discrimination lawsuits.

"We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise," Justice John Roberts wrote for the court.

One attorney said the ruling will result in fewer lawsuits by employees of religious institutions, while another lawyer said the Supreme Court's ruling still leaves some questions unanswered.

The ruling concerns Cheryl Perich, who worked as a "called" teacher and was designated a commissioned minister after completing certain academic requirements, including a course of theological study. In addition to teaching secular subjects, she taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly chapel service for the entire school.

Ms. Perich was terminated in 2005 after the school refused to reinstate her after a disability leave, although a doctor said she could return to work with no restrictions. She then filed suit, claiming discrimination and retaliation under the ADA.

Lower courts split

A lower court agreed with the school that it was entitled to a "ministerial exception" to the ADA and dismissed the case.

However, in its unanimous opinion in 2010, the 6th U.S. Circuit Court of Appeals in Cincinnati disagreed, stating that "legislative history makes clear that Congress intended the ADA to broadly protect employees of religious entities from retaliation on the job, subject only to narrowly drawn religious exemption." Ms. Perich's participation in some religious activities "does not make her primary function religious," the appeals court said.

In overturning the appeals court, the Supreme Court said that while it has not ruled on this issue until now, it agrees with appeals court rulings that there is a ministerial exception grounded in the First Amendment.

More than an employment decision

"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," the high court ruled.

The ministerial exception applies in this case based on "the formal title give Perich by the church, the substance reflected in that title, her own use of that title and the important religious functions she performed for the Church," the court ruled. "We conclude that Perich was a minister covered by the ministerial exception."

"When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way," the court ruled.

Gerald L. Maatman Jr., a partner with Seyfarth Shaw L.L.P. in Chicago, characterized the opinion as a "courthouse door closer"—meaning that the ruling will make it more difficult for church employees to find counsel to litigate their cases—"because the ministerial exception is given a very broad reading. And given the circumstances and facts in its case, it seems difficult for anyone to get around the ministerial exception, practically speaking."

Lay teachers

However, said Jeffrey A. Pasek, a defense attorney with Cozen O'Connor P.C. in Philadelphia, the opinion did leave "open how far religious organizations can go in the future in defining categories of employees who are 'ministers."'

In this case, Mr. Pasek said the plaintiff was a "called teacher" who performed the same duties as lay teachers. "It's not clear whether the court's decision would extend to them as well," he said.

"In recent years, there have been dozens of these ministerial exemption cases that have been working their way through the state and federal courts and have involved positions ranging from bookkeepers at community centers to individuals who performed primarily laboring duties as a precursor to entering into pastoral study, Mr. Pasek said. "The court's decision doesn't address which, if any, of those kinds of positions might be able to qualify for a ministerial exemption in the future."