Working for Justice

The Reach of Our Lady of Guadalupe: Are You Covered by the Ministerial Exception?

Posted July 8th, 2021 by Johan Conrod and Whittney Barth in Employment Discrimination.

One year ago this week the Supreme Court decided Our Lady of Guadalupe School v. Morrissey-Berru,[1] a case in which the Court determined that two Catholic elementary school teachers were “ministers” and therefore not covered by federal anti-discrimination statutes.[2] The Court based its decision on the “ministerial exception.” A First Amendment doctrine, the ministerial exception exempts religious employers from certain types of employment discrimination claims.[3] The practical effect of the exception is to allow religious institutions to discriminate based on age, disability, gender, race, and sexual orientation, so long as the employee at issue is considered a “minister.”[4]

An estimated 1.7 million people work for religious employers in the United States. The Supreme Court’s decision, and the decisions of federal and state courts that have followed (see charts below), leaves many unanswered questions about the ministerial exception’s reach. But here are few things to keep in mind if you are applying for a job at, or already work for, a religious institution.

Job Applicants

Applicants seeking jobs at religious institutions should understand the ministerial exception’s impact on protections they would enjoy at other, non-religious, employers. If an employee is considered a “minister,” then he or she loses certain protections from employment discrimination.

Perhaps most importantly, depending on the functions of the job, an employee can be considered a “minister” even if the word “minister” (or its equivalent[5]) does not appear in the official job title. For example, jobs that involve responsibility for religious instruction, worship music, and participating in religious observances with students each could fall within the ministerial umbrella.[6]

Statements of faith made in the job application process may also be used as evidence that the employee is a “minister.” For example, if a job applicant writes that she considers her work to be part of her faith commitment or religious ministry, that statement could be used by the employer to avoid liability for discrimination. Written job application forms that describe work as a “ministry” may also be used by the religious institution to avoid liability.

When considering whether to apply, applicants should keep in mind that supporting staff roles such as janitors, maintenance workers, book-keepers or receptionists are unlikely to fall within the ministerial exception. Many teaching positions at religious schools and colleges, however, may fall within the exception, and some religious schools have even argued that coaches qualify as “ministers” under the exception.

Current Employees

As noted above, absent a particular title, employees may not know whether their employer considers them to be a minister for the purposes of the ministerial exception. However, in light of the Supreme Court’s rulings, religious employers may (and in some cases already have) begin to institute changes to employment documents in an effort to make the ministerial connection clear for current and future employees.

For instance, in one recent Massachusetts state court case,[7] a religious college employer, on advice from counsel, added the word “minister” to the faculty job description in the faculty handbook. This fact was highlighted by the court when it considered whether the plaintiff had at any point held herself out as a minister. But the court found equally important that the plaintiff—a professor of social work—had protested the change because she felt it did not accurately describe her role. For this and other reasons, the court ultimately ruled that the professor plaintiff should not be considered a minister.

Finally, job titles are less significant than actual job functions. This is true because the analysis of whether the ministerial exception applies depends on whether an employee performed “vital religious duties”[8] as part of her job and does not depend on the job title or even the employee’s formal training. In fact, an employee could be deemed a minister without ever receiving any religious or theological training or education. In light of this, employees may experience employers attempting to rework their responsibilities to incorporate more “religious” duties to bring as many employees as possible within the ministerial exception umbrella.

Have you faced discrimination at your place of employment?

Whether the ministerial exception applies to a particular position is a fact-intensive analysis. If you believe you’ve experienced discrimination in the workplace, reach out to an employment attorney right away.

 

APPENDIX: Post-Our Lady of Guadalupe Decisions Involving the Ministerial Exception

The following chart provides an overview of federal and state court opinions that have addressed the scope of the ministerial exception since the Our Lady of Guadalupe decision in July 2020. While this list is illustrative of courts’ reasoning, it is important to keep in mind that every case is fact-specific and similar cases may result in different outcomes.

Federal Cases

Case Name Court Claims Position Minister?
Brandenburg v. Greek Orthodox Archdiocese of North America Southern District of New York Gender Discrimination andRetaliation/Hostile Work Environment Nun Yes(but HWE claim permitted to proceed)
Destiny Clark v. Newman University, Inc District of Kansas Gender Discrimination/Violation of Equal Pay Act Volleyball coach Deferred ruling for further fact finding
Garrick v. Moody Bible Institute Northern District of Illinois Gender Discrimination Instructor of Communications Deferred ruling for further fact finding
InterVarsity Christian Fellowship/USA v. Board of Governors of Wayne State University Eastern District of Michigan Violation of Constitutional Rights Student leaders of college campus religious club Yes
Koenke v. Saint Joseph’s University Eastern District of Pennsylvania Title IX Sexual Orientation Discrimination/Hostile Work Environment Assistant Director of Music & Worship Yes(and dismissed HWE claim)
Simon v. Saint Dominic Academy District of New Jersey Age/Disability Discrimination Chairperson of Religion Department/Campus Minister Yes
Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc. Southern District of Indiana Sexual Orientation Discrimination Guidance counselor Deferred ruling for further fact finding

State Cases

Case Name Court Claims Position Minister?
Crisitello v. St. Theresa School New Jersey Superior Court, Appellate Division Gender/Pregnancy Discrimination Teacher (Parochial School) Did not address; question now on appeal to New Jersey Supreme Court
DeWeese-Boyd v. Gordon College Massachusetts Supreme Judicial Court Associational and Gender Discrimination Associate Professor of Social Work No
Menard v. Archdiocese of Boston Massachusetts Appeals Court Age and Gender Discrimination/ Harassment/ Hostile Work Environment Parish Director of Music Ministries Yes
Rehfield v. Diocese of Joliet Illinois Supreme Court Violation of Whistleblower Act Principal (Parochial School) Yes
Samano v. Temple of Kriya Illinois Appellate Court Minimum Wage and Wage Payment Swami and Disciple; also managed online store, provided technical support Yes
Woods v. Seattle’s Union Gospel Mission Washington Supreme Court Sexual Orientation Discrimination Staff Attorney Remanded for determination
Footnotes

[1] 140 S. Ct. 2049 (2020).
[2] One teacher alleged she had been fired in violation of the Age Discrimination in Employment Act; another teacher alleged that she was fired for taking medical leave to obtain breast cancer treatment.
[3] Courts are divided over whether the ministerial exception applies to non-tangible employment claims, such as hostile work environment claims. See Brandenburg v. Greek Orthodox Archdiocese of N. Am., No. 20-CV-3809 (JMF), 2021 WL 2206486, at *6 (S.D.N.Y. June 1, 2021) (discussing split of authority).
[4] The ministerial exception is separate from the narrow carve out within the text of Title VII that allows religious employers to, in some instances, make hiring and firing decisions based on whether an individual shares the organization’s religion.
[5] While the Supreme Court has used the Christian term “minister” to describe the exception, just like the First Amendment, it applies to religious leaders of any faith.
[6] DeWeese-Boyd v. Gordon College, 163 N.E.3d 1000, 1016 n.23 (Mass. 2021) (collecting cases with examples of court decisions involving ministerial exception job roles).
[7] Id.
[8] Our Lady of Guadalupe School, 140 S. Ct. at 2066–68.

Johan has over 17 years of experience in commercial litigation and has tried dozens of cases in state and federal courts representing businesses, individuals and localities.
More About Johan

Whittney Barth is an Associate in the Baltimore office of Sanford Heisler Sharp. She received her M.Div. from Harvard Divinity School in 2011 and a J.D. from the University of Chicago Law School in 2019.
More About Whittney

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