Extending the “Ministerial Exception”: What Does It Mean to Employees?

On Behalf of | July 14, 2020 | Employment Law

The past few weeks brought mixed results for plaintiffs at the Supreme Court. Although the Court surprisingly extended Title VII’s protections based on gender identity and sexual orientation in Bostock v. Clayton County, the Court wrapped up its term by extending the so-called “ministerial exception”—which exempts certain employees of religious institutions from employment protections—to a seemingly broader swathe of employees. What might that mean for you?

Ministering, Not Ministers

First things first: this ruling has no bearing on your rights unless you work for an employer with a religious mission. This ruling merely extended the judge-created doctrine of the “ministerial exception,” which the Court created in 2012 in an attempt to protect religious institutions from courts involving themselves in “matters of church government” that it reasoned ought to be free from interference based on First Amendment guarantees of religious freedom and government noninterference. The case that created the ministerial exception—Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.—had, as might be predicted by the name of the exception it created, a minister for a plaintiff. It was not until this year’s ruling in Our Lady of Guadalupe School v. Morrisey-Berru that the Court evaluated whether the exception extended to those whose ministerial functions are secondary to their other responsibilities.

The Court ruled that any teacher to whom a “school with a religious mission entrusts . . . the responsibility of educating and forming students in the faith” is not protected by federal employment protections, such as Title VII, the ADEA, or the ADA. While Hosanna-Tabor had already removed that protection from ministers, Morrisey-Berru appears to have expanded its ruling to include teachers in religious institutions whose roles involve, to some degree, teaching religion. This is a large extension of a judge-created doctrine, to be sure, and it is not currently clear which positions—beyond ministers, religious education teachers, and their equivalents—will eventually be swept into the exemption.

How Far Does This Ruling Extend?

The good news is that this ruling does not mean that all persons employed by religious institutions were stripped of their protections under federal employment laws such as Title VII, the ADEA, and the ADA. Of note, both the “employment agreements and faculty handbooks specified in no uncertain terms that [plaintiffs] were expected to help the schools carry out” the mission of “[e]ducating and forming students in the Catholic faith.”

It is unclear to what extent these—or other factors—will control these analyses in the future. Although organizations like religiously affiliated universities and hospitals run by religious orders may have language in their employment contracts exhorting the importance of their religious missions, the fact that both ministers and teachers teach religious faith seems to be the operative factor in both cases, and employees working for religiously affiliated organizations who do not instruct on religious issues as part of their jobs—from accountants to in-house counsel to C-suite executives—should assume that they continue to enjoy protection from discrimination.

In any event, our firm is available for a consultation should you have any questions.