Supreme Court Okays Ministerial Exception To Discrimination Law

In EEOC v. Hosanna-Tabor Evangelical Lutheran Church & School, the United States Supreme Court approved a "ministerial exception" to federal anti-discriminations laws. The fact-specific opinion answers some questions, but leaves others – including the exact parameters of the exception – for future litigation.

Ministerial Exception Before Hosanna-Tabor

Both the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 contain exemptions that entitle religious institutions to discriminate on the basis of religion, but they do not entitle such institutions to discriminate on the basis of race, sex, disability, or any other legally protected category. Thus, when an employee of a religious organization sues his or her employer, alleging discrimination because of something other than religion, the first issue to resolve is whether the plaintiff fits within the First-Amendment-based "ministerial exception" originally articulated in McClure v. Salvation Army.1 Under this court-made doctrine, religious organizations must follow antidiscrimination laws with respect to their non-ministerial employees. However, religious organizations have complete control over all terms and conditions of employment of those who are deemed to act in a "ministerial" capacity; the antidiscrimination laws do not apply. The lower courts found a "ministerial exception" appropriate because to apply secular employment requirements to a religious organization's dealings with its ministers would undermine the religious organization's authority (thereby running afoul of the Free Exercise Clause), and/or cause the government to be unduly entangled in the affairs of the religious organization (thereby running afoul of the Establishment Clause). All of the Federal Circuits, as well as a number of states, have adopted some version of the "ministerial exception," relying on one or both of the religion clauses and applying slightly different tests to determine who qualifies as a "minister."2 Hosanna-Tabor is the U.S. Supreme Court's first foray into this area.

Factual Background

The Equal Employment Opportunity Commission (EEOC) sued on behalf of Cheryl Perich, a teacher in a church-run elementary school. The Lutheran Synod to which the church belonged allowed two types of teachers in its schools, "lay" and "called." Lay teachers worked on a contract basis for fixed terms. Appointment to a "lay teacher" position required no theological training; some lay teachers were not even Lutheran. In contrast, a "called" teacher needed to be Lutheran, have special theological training, pass an oral theological examination, and obtain the Synod's endorsement. Once a teacher met these criteria, a congregation could issue a teaching call or commission to him or her just as it would issue a call to a clergy person to lead the congregation. Once called, the...