Courts Uphold “Ministerial Exception” in Wrongful Termination Case; Religious School Exempt from Title VII, ADA and FEHA; Key is Religious Nature of Employer and Religious Nature of Employee's Duties


The First Amendment protects religious freedom and, because of that important right, religious institutions are entitled to an exemption from civil rights statutes that govern employment discrimination.  This principle was at the core of two important decisions, one from the U.S. Supreme Court and another from the California Court of Appeal.

The two cases are Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC and Henry v. Red Hill Evangelical Lutheran Church of Tustin.  Each case involved an employee who claimed employment discrimination.  In Hosanna-Tabor, the employee contended she was discriminated against because of her disability.  In the Henry case, the claim was that the employe had violated Title VII and the California Fair Employment and Housing Act (FEHA).

In Hosanna-Tabor, the U.S. Supreme Court recognized for the first time that the First Amendment, which protects freedom of religion, requires that a "ministerial exception" be read into Title VII and the ADA. "Until today," wrote Chief Justice John Roberts, "we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment....We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. 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. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments."

In the Henry case, the court of appeal made several rulings and all are important for religious entities, particularly schools, which face potential liability when they terminate employees who do not follow the tenets of the religion that lies at the center of the institution.  

The court held as follows:

The California Fair Employment and Housing Act (FEHA) specifically exempt religious entities. They are not considered “employers” under FEHA.  (See California Government Code §12926(d).)

Title VII, the federal civil rights statute, contains a similar provision, although it is worded a bit differently. Title VII, by its own terms, “shall not apply…to a religious [entity] with respect to the employment of individual of a particular religion to perform work connected with the carrying on …. of its activities.” (See 42 U.S.C. §2000e-1(a).)

There is also a constitutionally-based exception. It is founded on the First Amendment’s free exercise clause.

The key to the ministerial exception is proof that the person in question actually performs religious duties.  In the words of the court:

“The ministerial exception protects religious organizations from the normally attendant adverse consequences of employment discrimination. The exception is ‘constitutionally compelled’… and arises out of the establishment and free exercise clauses of the First Amendment…. Because the exception is of constitutional dimension, it exists independent of Title VII or any other statute. …

“The ministerial exception doctrine is based on the notion a church’s appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and termination of employment, is an inherently religious function because clergy are such an integral part of a church’s functioning as a religious institution.…Therefore, ‘secular courts will not attempt to right wrongs related to the hiring, firing, discipline or administration of clergy. Implicit in this statement of the rule is the acknowledgment that such wrongs may exist, that they may be severe, and that the administration of the church itself may be inadequate to provide a remedy. The preservation of the free exercise of religion is deemed so important a principle as to overshadow the inequities which may result from its liberal application. In our society, jealous as it is of separation of church and state, one who enters the clergy forfeits the protection of the civil authorities in terms of job rights.’ …

"The ministerial exception is not limited to churches. It extends to ‘church-related institutions which have a substantial religious character.’… This includes church-affiliated schools. …Neither is the ministerial exception limited to members of the clergy. … The ‘exception encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.’”

The court proceeded to examine Ms. Henry’s duties and concluded that they were sufficiently tied to the religious core of defendant church’s religious mission that the ministerial exception should apply.

These inquiries can be intensely factual and very sensitive.  But the exception is a strong one and is a vital protection to religious institutions.

For your convenience, a complete copy of each of these cases is attached.

Our firm regularly advise educational entities, employers, as well as unions and individual employees about the various legal issues that arise in the workplace and in the educational setting. Feel free to give us a call if you have questions or issues in these areas.

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