Freedom to Discriminate: The Ministerial Exception Is Not for Everyone – or Is It?
In the years following passage of the 1964 Civil Rights Act, courts took the first steps toward creating a legal doctrine now known as the “ministerial exception.” The ministerial exception provides that the government is barred from interfering with a religious institution’s ability to hire and fire ministers,[i] including by prohibiting it from enabling employees of religious entities to sue their employers for employment discrimination under antidiscrimination laws.
The exception has become increasingly controversial in recent years as courts have repeatedly expanded its use and scope. Widespread application of the exception has reached the point where there is growing concern about it potentially eviscerating the civil rights of employees of organizations with even tenuous ties to religion.
Development of the Ministerial Exception
The ministerial exception, which operates as an affirmative defense, is grounded in the First Amendment’s clause stating that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” In using the First Amendment’s freedom of religion clause to justify the ministerial exception, courts have reasoned that “matters touching the relationship between an organized church and its ministers . . . must necessarily be recognized as of prime ecclesiastical concern” because a church’s “minister is the chief instrument by which it seeks to fulfill its purpose.”[ii] Accordingly, “[b]y imposing an unwanted minister [on a religious entity as a result of a discrimination suit], the state [would infringe] the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”[iii] The doctrine was first recognized in a 1972 Fifth Circuit decision which required that the ministerial exception be applied to Title VII claims,[iv] and during the ensuing decades other circuits also adopted the doctrine, including the Second Circuit in 2008.[v]
Litigation involving the ministerial exception for the most part has hinged on two questions: (1) is the employee a minister, and (2) is the employer a religious organization? In the first few decades after the 1972 McClure case, a number of courts expressed reluctance to adopt too broad a definition of the exception. For example, the New York State Court of Appeals in Scheiber v. St. John’s University[vi] cautioned that a “religious employer may not discriminate against an individual for reasons having nothing to do with the free exercise of religion and then invoke the exemption as a shield against its unlawful conduct.”[vii] As will be discussed below, that is essentially what has happened – particularly in the last 10 years.
Other courts articulated similar misgivings. In EEOC v. Roman Catholic Diocese,[viii] the Fourth Circuit cautioned that the “ministerial exception does not derogate the profound state interest in assuring equal employment opportunities for all, regardless of race, sex or national origin.”[ix] Rayburn v. Gen. Conf. of Seventh-Day Adventists[x] held that the ministerial exception “does not exempt [religious entities] from claims based on race, gender or national origin.”[xi] And in Petruska v. Gannon University,[xii] the Third Circuit observed that “a narrow [ministerial] exception to prevent the unconstitutional enforcement of Title VII is the proper remedy.”[xiii] Although the Second Circuit adopted the ministerial exception in Rweyemamu v. Cote, it stressed that lay employees of a church alleging a non-religious wrong are “surely not forbidden [their] day in court.”[xiv]
The Hosanna-Tabor Case and Its Implications
The scope and impact of the ministerial exception changed significantly a decade ago, however, with the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.[xv] In Hosanna-Tabor, the Supreme Court not only recognized the ministerial exception but also went a good deal further. The Court found that a judicial remedy for any minister seeking to bring a claim of employment discrimination against his or her religious organization is prohibited regardless of the organization’s reason for its adverse employment action. The basis of this ruling was that it “ensures that the authority to select and control who will minister to the faithful – a matter strictly ecclesiastical – is the church’s alone.”[xvi]
The court also pointed out that whether the ministerial exception bars an employment discrimination claim against a religious group largely depends on whether the employee asserting it is a minister. (Another factor discussed by the court is whether the employer is a religiously affiliated institution.) In making a determination regarding ministerial status, the court said, four factors should be considered: “(1) the formal title given [to the employee] by the Church, (2) the substance reflected in that title, (3) her own use of that title, and (4) the important religious functions performed for the Church.”[xvii] In his concurrence, Justice Alito stated that the term “‘minister’ or the concept of ordination” were not critical to deciding if an employee is a minister or not.[xviii] Indeed, the Hosanna-Tabor plaintiff, a Catholic school principal with no religious title, was not allowed to pursue her Title VII gender discrimination claim.
Application of the Ministerial Exception Since Hosanna-Tabor
Since the Supreme Court’s Hosanna-Tabor decision, courts have steadily expanded the reach of the ministerial exception. Perhaps the most significant respect in which they have done so, as suggested above, is interpreting who is a minister.
The term “minister” has come to encompass a far broader range of occupations than rabbis, Catholic priests and Protestant ministers. The court in Brandenburg v. Green Orthodox Archdiocese of North America,[xix] for example, held that nuns are ministers, much as this might seem to run counter to the structure and hierarchy of the Roman Catholic and Orthodox churches. Additionally, teachers, a press secretary, a video producer, a choir director, a university vice president of student life, a Salvation Army rehabilitation center administrator and even the staff of a Jewish nursing home have been deemed ministers by courts. Despite the fact that the Hosanna-Tabor court stated that it was “reluctant”[xx] to adopt a strict formula for deciding which employees qualify as ministers, the lower courts have demonstrated little such forbearance. In Cannata v. Catholic Diocese of Austin,[xxi] the Fifth Circuit ruled that a church music director was a minister, reasoning that “it [was] enough that . . . [he] played an integral role in the celebration of Mass and . . . play[ed] the piano during services.”[xxii] Further, the Connecticut Supreme Court, in Dayner v. Archdiocese of Hartford,[xxiii] anticipating Hosanna-Tabor, determined that a principal was a minister because she headed a Catholic school.
In Stabler v. Congregation Emanu-El,[xxiv] the Southern District addressed the question of whether a school librarian in a Jewish school is a minister. In part because the librarian organized reading groups, she was considered to be a minister. The court sought to clarify the basis for its decision by stating that one “qualified as a minister by performing important religious functions on behalf of the Congregation.”[xxv] A liberal enough definition of “religious functions,” the meaning of which is a contested issue, can lead to a wide range of employees being considered ministers.
Also at issue in a number of cases involving the ministerial exception is the question of whether a particular employer is a religious institution at all. To be covered by the exception, an employer “need not be a traditional religious organization such as a church, diocese or synagogue” or even “an entity operated by a traditional religious organization.”[xxvi] Rather, a religious institution may be any entity whose “mission is marked by clear or obvious religious characteristics.”[xxvii]
In the decade since Hosanna-Tabor, and to a limited extent even before, courts have embraced a broad definition of what a religious institution is. The court in Shaliehsabou v. Hebrew Home of Greater Washington, Inc.[xxviii] – concluding that a religious institution could be any entity whose “mission is marked by clear or obvious religious characteristics” – found that a retirement home was a religious institution for purposes of the exception. In Penn v. N.Y. Methodist Hospital, decided a year after Hosanna-Tabor, the court reasoned that a religious institution could be any “religiously affiliated group.”[xxix] In other cases, courts have held that schools, health care facilities and hospitals are religious institutions.[xxx] The tendency, however, toward treating any organization affiliated in some way with a church or synagogue as a religious institution is not without its limits. In Penn, the court observed that the defendant hospital had earlier “removed [from its certificate of incorporation] provisions relating to its relationship with the United Methodist Church”[xxxi] and denied its motion to dismiss.
Eight years after Hosanna-Tabor, the Supreme Court addressed the exception a second time in Our Lady of Guadalupe School v. Morrissey-Berru.[xxxii] The court in Our Lady of Guadalupe expanded the exception still further, holding that employers need only demonstrate that an employee exercises important religious functions for the exception to apply. Thus, not only is a ministerial title unnecessary to bring an employee within the exception, but so are religious education or training. The court also determined that all teachers who engage in the “religious education and formation of students”[xxxiii] fall within the exception.
One additional issue pertaining to the ministerial exception that remains unresolved is whether it bars all or only some discrimination and retaliation claims. The exception has long been interpreted as having the purpose of preserving religious institutions’ ability to “select, supervise, and if necessary remove a minister without interference by secular authorities.”[xxxiv] Application of the exception to such “tangible employment actions”[xxxv] leaves unresolved the question of whether it also applies to hostile work environment claims that do not involve tangible employment actions. Neither the Supreme Court nor the Second Circuit have yet ruled on this question, and those circuits that have are split, with the Ninth Circuit holding that the exception does not apply to sexual harassment or other hostile work environment claims,[xxxvi] while the Tenth Circuit arrived at the opposite conclusion.[xxxvii]
Pushback Against the Ministerial Exception
As the trend toward expansion of the exception continues seemingly unchecked, a growing number of legal experts and commentators – though very few courts – are raising concerns about what they see as the loss of workplace protections for many employees as well as the potential for the exception to dangerously encroach on our basic civil rights. Because of its breadth, the ministerial exception has been labeled “the exception that swallowed the rule.”[xxxviii] Two objections to the exception and its evolution in particular have been raised. The first is that civil rights protections for employees of religious-affiliated organizations are being continually eroded by the ongoing expansion of the exception, and the second is that the broadening of the exception has given religious employers the opportunity to push the envelope with regard to applying the doctrine and thus eviscerate anti-discrimination protections for their employees. Also of concern is the fact that, to some, the courts seem to recognize no boundaries when it comes to increasing the reach and interpretation of the exception.
The first objection has garnered the most attention. One legal expert put it succinctly: “When a religious organization seeks the protection of [the ministerial] exception, the organization is asking for the state to limit its employees’ civil rights.”[xxxix] This outcome is seen as particularly problematic because the “overwhelming priority that the exception grants to the religious liberty of employers is hard to reconcile with . . . the principle that liberty may only be restricted for the sake of a more meaningful, equal liberty for all.”[xl] In support of this notion, critics note that in Hosanna-Tabor the Supreme Court only mentions the value of employment law once and there merely states that the “interest of society” in enforcing anti-discrimination laws “is undoubtedly important.”[xli] Commentators who oppose the exception stress that it is difficult to take issue with the conclusion that, for many employees, it has essentially eliminated their right not to be discriminated against in the workplace.
Echoing this sentiment, one commentator declared that “working in a religious institution now means living in fear for your job at all times and knowing that no one will protect you.”[xlii] Another, looking at the larger picture, stated that “the Supreme Court appears to be moving in the direction of accommodating religious exercise and providing more rather than fewer religiously based exemptions from laws of all kinds.”[xliii]
The second major objection to the development of the exception is that it has encouraged employers to interpret and apply it ever more broadly and to push the boundary of the exception well beyond its current reach. Some religious employers are arguing that all parochial schoolteachers, even those that teach only classes unrelated to religion, should be categorized as ministers, and this position will probably soon be before the courts. This notion, of course, goes beyond the Court’s treatment of this issue in Our Lady of Guadalupe School. Other religious employers have gone even further, asserting that all of their employees – including janitors and computer technicians – are ministers.
Moreover, some religious employers have argued that claims under a wider range of employment laws should be barred by the exception. This view could encompass wage and hour disputes, Equal Pay Act violations and leave denial under the Family and Medical Leave Act, among others. (Courts in several cases, in fact, have agreed that the ministerial exception applies to claims arising under minimum wage laws and federal labor standards laws.[xliv])
Finally, an increasing number of employers are attempting to characterize themselves as religious institutions in order to take advantage of the exception and avoid coverage by antidiscrimination statutes. In light of the increasing number of institutions deemed to be religious – now including hospitals, schools, nursing homes, charities and other entities with some link to a more formal religious organization – it is perhaps not surprising that many “gray area” and even commercial entities are now claiming to be religious and testing the waters to see if the exception might be applied to them.[xlv] These include religious publishers and bookstores, media outlets, student associations, advocacy groups and museums.[xlvi]
The concern that courts, certainly including the Supreme Court, will continue to broaden the ministerial exception to apply to a wider range of institutions with more tenuous connections to religions, an increased number of civil rights statutes and more kinds of employees is not without support considering decisions after and even before Hosanna-Tabor. Nonetheless, courts have to date recognized at least a few limits on application of the exception. Most courts to consider the issue have not applied the exception to secretarial or back-office workers with few or no religious responsibilities. In David v. Baltimore Hebrew Congregation[xlvii] and Barrett v. Fontbonne Academy[xlviii] courts declined to apply the exception to a facilities manager and a food service director, respectively. Close cases continue to involve administrators and others whose duties do not involve teaching religion or performing other duties that might be considered religious in nature.
A majority of commentators suggest that the current trend of courts perceiving the exception more and more broadly is likely to continue for at least the immediate future. Measures such as requiring religious organizations to advise employees as to whether the exception is considered to apply to them have been proposed as a way to blunt the trend toward continued expansion of the exception. Nonetheless, individuals who are considering employment by religious organizations of any kind would be well-advised to take into account that they may well be waiving their right to protection by antidiscrimination laws by doing so.
Geoffrey A. Mort is of counsel to Kraus & Zuchlewski, where he focuses on employment discrimination litigation as well as separation and employment agreements. He served as an assistant corporation counsel in the New York City Corporation Counsel’s Office and as an assistant circuit executive for the United States Second Circuit. Mort co-chairs the Workplace Rights and Responsibilities Committee of NYSBA’s Labor and Employment Law Section and is on the Executive Committees for the Labor and Employment Law Section and Cannabis Law sections.
[i] Penn v. New York Methodist Hospital, 2013 U.S. Dist. LEXIS 142109, *9 (S.D.N.Y. 2013).
[ii] Fratello v. Archdiocese of N.Y., 863 F.3d 190, 200 (2d Cir. 2017), quoting McClure v. Salvation Army, 460 F.2d 553, 555 (15th Cir. 1972).
[iii] Fratello, 863 F.3d at 201.
[iv] McClure v. Salvation Army, 460 F.2d 553.
[v] Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008).
[vi] 84 N.Y.2d 120 (1994).
[vii] Id. at 127.
[viii] 213 F.3d 795, 801 (4th Cir. 2000).
[x] 772 F.2d 1164 (4th Cir. 1985).
[xi] Id. at 1166.
[xii] 462 F.3d 294 (3d Cir. 2006).
[xiii] Id. at 305, n.8.
[xiv] Rweyemamu, 520 F.3d at 207.
[xv] 565 U.S. 171 (2012).
[xvi] Id. at 194–95.
[xvii] Id. at 192.
[xviii] Id. at 202.
[xix] 2021 U.S. Dist. LEXIS 102800 (S.D.N.Y. June 1, 2021).
[xx] Hosanna-Tabor, 565 U.S. at 190.
[xxi] 700 F.3d 169 (5th Cir. 2012).
[xxii] Id. at 177.
[xxiii] 23 A.3d 1192 (Conn. 2011).
[xxiv] 2017 U.S. Dist. LEXIS 118964 (S.D.N.Y. July 28, 2017).
[xxv] Id. at *17.
[xxvi] Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007).
[xxvii] Penn v. New York Methodist Hospital, 884 F.3 416, at *19.
[xxviii] 363 F.3d 299, 310 (4th Cir. 2004).
[xxix] Penn, 884 F.3d 416, at *7.
[xxx] See, e.g., Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F.2d 360 (8th Cir. 1991).
[xxxi] Penn, 884 F.3d 416, at *26.
[xxxii] 140 S. Ct. 2049 (2020).
[xxxiii] Id. at 2055.
[xxxiv] Id. at 2060–61.
[xxxv] Fratello v. Archdiocese of N.Y., 863 F.3d 190, 202–03 (2d Cir. 2017).
[xxxvi] Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004).
[xxxvii] Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 2010).
[xxxviii] Sunu P. Chandy & Laura Narefsky, Exception Swallowing the Rule? The Expanding Ministerial Exception Puts Workers at Religious Employers at Risk of Losing Civil Rights Protections, Am. Bar Assoc., June 5, 2022, https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/intersection-of-lgbtq-rights-and-religious-freedom/exception-swallowing-the-rule.
[xxxix] Sabine Tsuruda, Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception, 106 Cornell L. Rev. 1255, 1260 (2021).
[xl] Id. at 1258.
[xli] Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S. 171, 196 (2012).
[xlii] Jamie Mason, After the Supreme Court’s Latest Decision, Who Would Want to Work in a Church? Nat’l Cath. Rep., July 14, 2020, https://www.ncr.online.org/news/opinion/grace-margins/after-supreme-courts-latest-decision-who-would-want-to-work-church.
[xliii] Patrick Hornbeck, A Nun, a Synagogue Janitor, and a Social Work Professor Walk Up to the Bar, 70 Buffalo L. Rev. 695, 775 (2022).
[xliv] See, e.g., Alcazar v. Corp. of Cath. Archbishop of Seattle, 598 F.3d 668 (9th Cir. 2010).
[xlv] Sunu P. Chandy & Laura Narefsky, Exception Swallowing the Rule?, supra note 39.
[xlvi] Patrick Hornbeck, A Nun, a Synagogue Janitor, and a Social Work Professor Walk Up to the Bar, supra note 44, at 755.
[xlvii] 985 F. Supp. 2d 701 (D. Md. 2013).
[xlviii] 2015 WL 9682042 (Mass. Super. Ct. Dec. 16, 2015).