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February 27, 2012
Supreme Court Affirms Church’s Right to Govern Personnel Matters in Accordance with its Mission
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            For the first time, the United States Supreme Court has recognized a “ministerial exception” to all federal, state, and local employment laws.  The ministerial exception bars a “minister” from suing his or her former employer for employment discrimination after termination.   

            In the case of Hosanna-Tabor, Cheryl Perich worked as an ordained teacher at Hosanna-Tabor, a Michigan church and grade school.  In 2004, Perich developed narcolepsy and went on disability leave.  Consistent with the school’s leave policy, Hosanna-Tabor requested that Perich resign her calling once her absence exceeded six months.  Perich refused.  She also refused to comply with Hosanna-Tabor’s request that she submit her complaint to the church’s internal dispute resolution process and threatened to file an Equal Employment Opportunity Commission (EEOC) complaint.  In response to this threat, the congregation rescinded Perich’s calling and terminated her.  Perich, in turn, filed an EEOC complaint alleging discrimination under the Americans with Disabilities Act of 1993, 42 U.S.C. § 12101, et seq., and the Michigan Persons with Disabilities Civil Rights Act, Mich. Comp. Laws §37.1602(a). 

          The United States Supreme Court held that the First Amendment bars employment discrimination lawsuits brought by a church’s ministers.  Specifically, the Court held that the decision of whether to terminate a minister is a matter that concerns internal church governance, which affects the faith and mission of the church itself.  The Court reasoned that the government has no role in determining who will assist the church in carrying out its mission.  The only issue in such cases will be whether the employee acted as a minister.

          The ministerial exception is not limited to the head of a religious congregation.  However, the Court declined to adopt a rigid rule for when it will find that a person has acted as a “minister” for the purposes of the ministerial exception.  But the Court did identify several factors that it would consider relevant:

  1. Whether the employee was formally commissioned as a “minister” within the denomination’s internal practices,
  2. Whether significant religious training and a recognized religious mission underlies the description of the employee’s position, and
  3. Whether the employee performs “important religious functions” in addition to the employee’s lay duties

          Two additional factors could be relevant considerations, but would not, in isolation, be dispositive as to whether a church employee was a “minister.”  First, it will not be dispositive that non-ordained, lay employees perform ministerial-type functions when the lay employees do so only when the minister is unavailable.  Second, it is not dispositive that the minister performs lay functions in addition to his or her religious functions because rarely will a church employee perform solely religious tasks. 

          The Hosanna-Tabor decision leaves several unanswered questions.  First, the Court’s refusal to adopt a clean definition of when an employee qualifies for the ministerial exception means that each possible employee termination will be fact-dependent.  As such, counsel should be sought before terminating a church employee in a manner that would otherwise violate federal, state, or local employment discrimination laws. 

          Second, the Supreme Court specifically declined to rule on whether the ministerial exception bars non-employment discrimination claims by a ministerial employee, such as claims for breach of contract or for tortious conduct.  Recently, the Washington Division Two Court of Appeals held in Erdman v. Chapel Hill Presbyterian Church, that an ordained church employee could bring claims against the church for a minister’s tortious conduct because civil tort claims involve secular conduct that would not require the court to interpret church doctrine or religious beliefs.   Thus, although a ministerial employee may not be able to bring an employment discrimination claim against the church, he or she may be able to succeed on other grounds. 

          However, Erdman’s holding is not final because the Washington Supreme Court has granted review of the decision.  Although the Court has heard oral argument, a decision is still pending.  A church should therefore continue to exercise caution when terminating any employee. 

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