As It Appeared On
By Johan Conrod and Whittney Barth
Can a Catholic school fire an elementary school teacher because of her disability and escape ADA liability?
It can if the teacher led the students in prayer, took them to chapel and taught them tenets of the faith.
That’s the essential holding of Our Lady of Guadalupe School v. Morrissey-Berru, a July 2020 opinion in which the U.S. Supreme Court further defined the boundaries of the ministerial exception. A judicially created doctrine grounded in the First Amendment of the U.S. Constitution, this exception shields religious institutions from employment-related liability in circumstances involving ministerial employees.
On the first anniversary of the decision, however, questions persist.
What are the limits of the ministerial exception? Does it apply to any teacher at a religious college? Does it apply to all employment discrimination claims? What does it mean when considered in light of the Supreme Court’s other major employment decision from the summer of 2020, Bostock v. Clayton County, Georgia? And should religious institutions recalibrate their employment models to cast a wider ministerial net?
These questions have broad implications. According to Data USA, a platform that aggregates U.S. government data, the U.S. Bureau of Labor Statistics estimated that religious organizations employed 1.7 million people in 2018. Drawing lines on these issues directly impacts whether hundreds of thousands of employees will continue to enjoy basic employment protections.
Who Is a Minister?
In the year since Guadalupe, state and lower federal courts have embraced the most memorable (and deceptively simple) line from Justice Samuel Alito’s majority opinion: “What matters, at bottom, is what an employee does.”
But they’ve also paid heed to the warning Justice Sonia Sotomayor voiced in her dissent, namely, that if pursued to its extremes, this “functional” analysis could amount to unchecked judicial deference to the very institutions accused of discrimination.
One of the clearest examples of this measured approach is DeWeese-Boyd v. Gordon College, where the Supreme Judicial Court of Massachusetts in March rejected a private Christian college’s argument that a professor of social work qualified as a minister.
The court balanced the professor’s “integrative responsibility” to connect her subject matter to “perspectives of the Christian faith” and her (limited) seminary training against the realities that she did not have a clear responsibility to be a “spiritual mentor” to students and was not asked to engage in “specific and sectarian” religious instruction.
The professor, who alleged the school discriminated against her on the basis of her gender and because of her support for LGBTQ individuals, also did not represent herself as a minister. Indeed, she protested the college’s insertion of the word “minister” into the faculty handbook — an action the college took on the recommendation of its counsel.
To be sure, some courts have dismissed claims on ministerial exception grounds where the functions of the employee’s job left little room for doubt or where pre-Guadalupe decisions established clear precedent.
For instance, in Simon v. Saint Dominic Academy, the U.S. District Court for the District of New Jersey in April applied the exception to the chairperson of the religion department at a religious secondary school who also held the title of campus minister, had a master’s degree in theology, and was responsible for “teaching and promoting the Catholic faith to students.”
In Rehfield v. Diocese of Joliet, the Illinois Supreme Court affirmed in February, on the basis of her employment contract and a declaration from a priest involved in school administration, that a “lay principal” was a minister.
And in July 2020’s Menard v. Archdiocese of Boston, the Massachusetts Appeals Court, relying heavily on earlier cases involving church music directors, affirmed the dismissal of a parish music director’s employment discrimination claims after considering her employment contract and the content of an article she wrote for the parish newsletter describing her work.
Perhaps most significantly, courts have rejected arguments by religious institutions that Guadalupe effectively extended the exception to all of their employees, and underscored the need for a fact-specific inquiry.
This was seen in Starkey v. Roman Catholic Archdiocese of Indianapolis, where in October 2020 the U.S. District Court for the Southern District of Indiana denied a motion to dismiss the sexual orientation discrimination claims of a high school guidance counselor. As the district judge explained:
If Defendants could claim that religious autonomy protects employment decisions regardless of whether the position was religious or secular, it is not clear why the Supreme Court reaffirmed the ministerial exception’s narrow application to only those employees who have responsibilities “that lie at the very core of the mission of a private religious school.”
Are All Employment Discrimination Claims Covered?
Courts also continue to grapple with whether the exception applies to all employment discrimination claims — or only those involving tangible employment action.
Some courts have observed that nontangible claims, such as constructive discharge or claims arising from a hostile work environment, involve the specific bad acts of an individual supervisor or fellow employee, not purely institutional behavior. And they contend that protecting individual bad behavior was never a First Amendment goal.
As the U.S. Court of Appeals for the Seventh Circuit put it last August in Demkovich v. St. Andrew the Apostle Parish, Calumet City: “[S]upervisors within religious organizations have no constitutionally protected individual rights … to abuse those employees they manage, whether or not they are motivated by their personal religious beliefs.” That decision was since vacated by the Seventh Circuit in favor of en banc review on this very point.
But other courts reject this distinction. In their view, the Supreme Court has cut no such corners in its ministerial exception decisions.
In the words of a U.S. District Court for the Eastern District of Pennsylvania opinion this January in the case of Koenke v. Saint Joseph’s University, “The Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.”
Looking Beyond the Letter of the Law
As an amicus curiae brief in Guadalupe observed, even prior to that decision some religious employers — like Gordon College — were already revising their handbooks and otherwise adjusting their employee job descriptions in an attempt to cast as many as possible in a ministerial light.
When coupled with the June 2020 decision in Bostock, which found sexual orientation protected under Title VII of the Civil Rights Act, Guadalupe threatens to accelerate that trend.
Lower court decisions to date suggest that these maneuvers will not necessarily find success, since a critical fact-finding inquiry should see through any transparent attempts to manipulate application of the exception.
Courts have also recognized that there is another path forward.
This March, in Woods v. Seattle’s Union Gospel Mission, the Washington Supreme Court addressed whether the ministerial exception applied to a staff attorney position. If it did, the exception would bar the state law discrimination claims of a man who alleged that his sexual orientation and desire to marry a man led to the rejection of his job application.
In her concurrence, Justice Mary Yu wrote:
Given our state’s long-standing commitment to eradicating discrimination and to fostering a diverse workforce, it is my greatest hope that religious institutions will recognize and embrace the choice to limit the “ministerial exception” to those employees for whom such an exception is absolutely necessary and grounded in some reason and purpose.
Put differently, and purely legal questions aside, the ministerial exception presents religious institutions with a consequential choice: whether and how to exercise the right to exclude.
Johan Conrod is of counsel and Whittney Barth is an associate at Sanford Heisler Sharp LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Quoting Guadalupe.