Supreme Court Expands Religious-School Exemption from Civil Rights Laws

Allen Smith, J.D. By Allen Smith, J.D. July 8, 2020
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Supreme Court

The U.S. Supreme Court ruled today that two elementary school teachers at religious schools could not pursue their claims of age and disability discrimination. The court found that employees such as teachers who hold important positions can't sue their employers because of the First Amendment's freedom of religion clauses.

In Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court decided in a 7-2 decision written by Justice Samuel Alito Jr. that although the teachers were not given the title of minister, they fit within the so-called ministerial exception to anti-discrimination laws.  

"The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission," the court said. "Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate."

The school administrators in the consolidated case before the court both thought the two plaintiffs had a sufficient understanding of Catholicism to teach their students, and judges should not second-guess the schools' own credentialing requirements, the court wrote. Both teachers held themselves out as authorities on religion to their students and, by extension, to the students' families, it added.

The fact that one of the teachers was not a practicing Catholic did not decide the outcome of the case. "Acceptance of that argument would require courts to delve into the sensitive question of what it means to be a practicing member of a faith, and religious employers would be put in an impossible position," the court wrote. "It is not clear how religious groups could monitor whether an employee is abiding by all religious obligations when away from the job."

Concurrence

In a concurring opinion, Justice Clarence Thomas wrote, "The First Amendment's protection of religious organizations' employment decisions is not limited to members of the clergy or others holding positions akin to that of a minister."

He added, "Such protection extends to the laity, provided they are entrusted with carrying out the religious mission of the organization. … This deference is necessary because, as the court rightly observes, judges lack the requisite understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. What qualifies as ministerial is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis."

Dissent

In a dissent joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor said the court had issued a new test for the ministerial exception: whether a church thinks its employees play an important religious role. "Because that simplistic approach has no basis in law and strips thousands of teachers of their legal protections, I respectfully dissent," she wrote.

Under a prior decision, Hosanna-Tabor, the Supreme Court outlined the four factors that were to be considered when determining whether a teacher was employed at a religious school as a minister:

  • The teacher's formal title.
  • The substance reflected in that title.
  • The teacher's own use of that title.
  • The important religious functions the teacher performed for the religious institution.

"Hosanna-Tabor's well-rounded approach ensured that a church could not categorically disregard generally applicable anti-discrimination laws for nonreligious reasons," the dissent said. "Because the court's new standard prizes a functional importance that it appears to deem churches in the best position to explain, one cannot help but conclude that the court has just traded legal analysis for a rubber stamp," Sotomayor wrote.

She added, "In expanding the ministerial exception far beyond its historic narrowness, the court overrides Congress' carefully tailored exceptions for religious employers."

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Reactions

Jonathan Segal, an attorney with Duane Morris in Philadelphia and New York City, said the Supreme Court expanded the standard for the ministerial exception beyond the Hosanna-Tabor standard, but he didn't think the court defined the ministerial exception as broadly as the dissent suggests.

Nonetheless, David Barron, an attorney with Cozen O'Connor, said today's ruling "is especially important to religious schools because of the recent opinion this term finding that Title VII [of the Civil Rights Act of 1964]'s prohibition of discrimination based on sex should be interpreted broadly to include sexual orientation and transgender status."

Barron added, "That decision set up a debate over the extent to which religious schools would have to accommodate teachers or other employees whose lifestyles conflicted with the teachings of the religious institution. This decision today alleviates many of those concerns—rightly or wrongly—holding that teachers who are involved in religious instruction are largely exempted from anti-discrimination laws."

Limits to the Ruling

There may be limits to the court's ruling, Segal cautioned.

He didn't interpret the decision as meaning all teachers at religious schools are necessarily covered by the ministerial exception. The court instead looked at what an employee does and was less focused on his or her title, Segal said.

So a calculus teacher who teaches only math at a religious school might not be covered, while another calculus teacher who regularly leads the class in prayer arguably would be. If someone's role is entirely secular, such as an accountant's or a janitor's, applying the exception would be harder.

Thus, anyone who represents the religious school in public arguably would be covered. So an executive assistant to a principal might be covered.

Even if the ministerial exception applies, Segal said religious schools might consider two factors. First, they should assess whether, if they apply the ministerial exemption broadly, they have enough applicants to meet the religious requirements. Second, even if they apply the exception, religious organizations might consider not banning applicants based on their sexual orientation or gender identity. Instead, the organizations might tell individuals to follow their beliefs on marriage in class and not discuss their sexual orientation or gender identity with students or employees.

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