Posted 03-14-2012

The U.S. Supreme Court has issued its first employment law decision of 2012, unanimously recognizing a “ministerial exception” to discrimination laws, which allows churches, synagogues, mosques, and temples to select their own priests, rabbis, imams, ministers, and religious teachers without government interference.

Cheryl Perich was a “called” teacher at a Lutheran parochial school in Michigan. Unlike the lay teachers, Ms. Perich had completed a course of theological studies, passed an oral examination, and had been designated “Minister of Religion, Commissioned”. She taught math, language arts, science, social studies, gym, art, and music. She also taught a religion class 4 days a week, led her students in prayers every day, and attended a weekly school-wide chapel service, which she led herself about twice each school year.

After five years of teaching, Ms. Perich became ill, went out on disability leave, and missed more than a semester of school. When she told the principal that she was ready to come back, the principal told her that the school had already contracted with a lay teacher to replace her for the rest of the year, and offered her a severance package in exchange for her resignation. Ms. Perich refused to resign, and instead came to the school and refused to leave until she got written confirmation that she had reported to work. The principal told Ms. Perich that she would likely be fired, and Ms. Perich replied that she had spoken to an attorney, and would seek to assert her legal rights. Soon afterwards, the congregation voted to rescind Ms. Perich’s “called” status, and the school sent her a letter of termination.

The federal Equal Opportunity Employments Commission and Ms. Perich sued, claiming that her termination violated the Americans with Disabilities Act and Michigan state law. The church argued that the suit was barred by the First Amendment, since the case involved the employment of a religious minister, and that Ms. Perich had been fired for a religious reason – namely, that her threat to sue the church violated the Lutheran Synod’s belief, based on an epistle by St. Paul, that Christians should resolve their disputes internally.

In ruling in favor of the church and dismissing Ms. Perich’s case, the Supreme Court stressed that “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way… Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC)

What this means to you:

The Hosanna-Tabor decision leaves a number of questions unanswered: Who qualifies as a “minister” for purposes of the exception? Does this exception apply to employment decisions other than hiring and firing of a church’s ministers? We will have to wait for future cases and rulings to find out.

Religious institutions – like other employers – should always make employment decisions with care. Before taking action, the institution should take a step back, review the decision from the perspective of a skeptical third party, and ask: Would this decision survive a legal challenge should the employee decide to bring one? If the answer is “yes,” the institution should carefully evaluate whether the ministerial exception will likely apply based on the limited guidance offered in Hosanna-Tabor. Only by carefully evaluating all of the relevant facts and circumstances before taking action (as opposed to scrambling to defend itself after the fact) will the employer be able to make a well-reasoned decision, which is the best way to reduce the risks inherent in taking any adverse action against its employees.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.