When Do Employment Anti-Bias Laws Cover Teachers at Religious Schools?

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Does the First Amendment's freedom of religion clause prevent two teachers from bringing employment discrimination claims against religious schools that declined to renew their contracts? The U.S. Supreme Court heard oral arguments on May 11 in two consolidated cases that involved fifth-grade teachers at Catholic schools in California.

"The arguments addressed the extent of the application of the ministerial exception," noted Damian Cavaleri, an attorney with Hoguet Newman Regal & Kenney in New York City. "On the one hand," he said, "there are the protections afforded by the First Amendment for religious organizations, but, on the other, there are protections to employees to be free from certain forms of discrimination."

The conservative justices focused on how to define who is covered under the ministerial exception, which bars ministers from bringing employment discrimination claims against religious organizations. Chief Justice John Roberts Jr. noted that part of the teachers' job was to personify church values. "Is that enough to trigger the exception?" he asked.

Justice Clarence Thomas asked if some of the religious duties performed by the teachers in these cases would violate the First Amendment if they were done in public school. He said it would be "a bit odd" if certain activities—such as leading a daily prayer—are barred from public school because they are religious activities but would not be considered religious enough for constitutional protection when done in a parochial school.

The liberal justices seemed concerned that a ruling in favor of the schools would sweep too broadly. "So you're asking for an exception to the Family and Medical Leave Act, to wage and hour laws, to all sorts of laws?" Justice Sonia Sotomayor asked the schools' attorney.

Justice Ruth Bader Ginsburg asked whether a faith leader who was fired after reporting a student's complaint of sexual harassment by a priest would have no remedy.

The Ministerial Exception

In one of the two cases, Our Lady of Guadalupe School v. Morrissey-Berru, the teacher asserted that her contract was not renewed because of her age in violation of the Age Discrimination in Employment Act.

In the other case, St. James Catholic School v. Biel, the teacher claimed that the school failed to renew her contract after she disclosed that she would be going through breast cancer treatment. The teacher claimed this violated the Americans with Disabilities Act.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

The Catholic schools argued that the teachers fall under the ministerial exception. The purpose of the exception is to protect "religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission," according to Supreme Court precedent.

The high court's 2012 decision in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC established the ministerial exception to grant religious organizations the freedom to decide whom to employ for religious training without regard to certain employment protections, Cavaleri explained. 

But how broadly does the exception apply? Federal and state courts "have long agreed that the key to determining ministerial status is whether an employee performed important religious functions," said Our Lady of Guadalupe in its petition to the Supreme Court. The district court had found that the teacher in that case was a "minister" for purposes of the exception because she "expressly admitted that her job duties involved conveying the church's message."

The 9th U.S. Circuit Court of Appeals, however, reversed the lower court's decision. The appeals court acknowledged that the teacher incorporated Catholic values into her lessons, led students in a daily prayer and performed some other religious duties, but, overall, her position was secular. The teacher "did not have any religious credential, training or ministerial background" and "also did not hold herself out to the public as a religious leader or minister," the 9th Circuit said. The appeals court reached a similar conclusion in the lawsuit against St. James Catholic School, and the Supreme Court agreed to review the consolidated cases.

In light of Hosanna-Tabor, the court is being asked to rule on how extensive the teacher's religious training to students needs to be for the exception to apply, Cavaleri said. "Is a single religious function sufficient for the exception to apply or does it require reviewing the totality of the circumstances?"

Difficult Question

During oral argument, the justices grappled with who performs enough religious duties to be exempt from employment laws and who fulfills a covered secular role.

"I'm struggling with where you draw the line and how much entanglement … both sides are going to get us in here in deciding what's an important enough person in a particular faith and how we avoid that difficulty," Justice Neil Gorsuch said during oral argument.

The justices asked a number of hypothetical questions. Is there a difference between an elementary school teacher who instructs on all subjects and a secondary school teacher who covers only religion? What if a football coach leads the team in an opening prayer?  Would a nurse at a Catholic hospital fall under the ministerial exception if he or she prays with sick patients and tends to their religious needs?

The justices seemed divided. For instance, Ginsburg said "the breadth of the exemption is staggering." Referring to the St. James teacher, she said, "Her having cancer has nothing to do with the performance of her religious functions." So why shouldn't the teacher be covered by employment laws that provide job-protected leave?

Counsel for the federal government (which filed a friend-of-the-court brief supporting the schools) said the exemption is categorical for employment discrimination claims relating to hiring and firing.

Counsel for the teachers warned that applying the ministerial exception too broadly would result in more challenges by football coaches, summer counselors, nurses and other employees of religious institutions.

Justice Samuel Alito Jr., however, said that "the teaching of religion is central" for a school that is run by a religious organization. "That's the very reason why these schools are set up," he said. 

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