Ministerial Exception to Title VII Protects Religious Institutions When They Hire Certain Religious Employees; Ruling Applies to Religious Schools As Well as Religious Orders In General

Although religious institutions are subject to the Nation’s civil rights laws, a difficult issue arises when a religious order seeks to hire its own ministers.  Those decisions, courts have held, are exempt from the civil rights laws on the theory that First Amendment Freedom of Religion grants the institution a broad right to hire religious leaders of its own choosing without government interference.

The Ninth Circuit had occasion to consider this issue in Alcazar v. The Corporation of the Catholic Archbishop of Seattle. The opinion is instructive to any group confronting this issue.  Because the case is so important, we quote from the court’s analysis at length (and a full copy of the ruling is attached for your conveneince):

“Churches, like all other institutions, must adhere to state and federal employment laws. But the federal courts have recognized a “ministerial exception” to that general rule. Theexception exempts a church’s employment relationship with its “ministers” from the application of some employment statutes, even though the statutes by their literal terms would apply. A key inquiry, therefore, is whether an employee is a “minister” for purposes of the exception. Where, as here, the plaintiff alleges that he “entered the seminary to become a Catholic priest” and performed his duties “in a ministerial placement,” “[a]s part of [his] preparation for ordination into the priesthood,” we hold that he is a “minister” for purposes of the ministerial exception.”

The court went on to explain the historical origin of the “ministerial exception” and its contours:
“The Fifth Circuit first recognized the ministerial exception nearly 40 years ago. McClure v. Salvation Army, 460 F.2d 553, 558-61 (5th Cir. 1972). It is now “well entrenched” in the federal courts of appeals. See Rweyemamu v. Cote, 520 F.3d 198, 206 (2d Cir. 2008) (collecting cases). As we have explained, the ministerial exception derives from both the Free Exercise and Establishment Clauses of the First Amendment. Werft v. Desert Sw. Annual Conference of United Methodist Church, 377 F.3d 1099, 1101 (9th Cir. 2004) (per curiam). “The Free Exercise Clause rationale for protecting a church’s personnel decisions concerning its ministers is the necessity of allowing the church to choose its representatives using whatever criteria it deems relevant.” Bollard, 196 F.3d at 947. “Indeed, the ministerial relationship lies so close to the heart of the church that it would offend the Free Exercise Clause simply to require the church to articulate a religious justification for its personnel decisions.” Id. at 946. Similarly, “applying [a] statute to the clergy-church employment relationship creates a constitutionally impermissible entanglement with religion [in violation of the Establishment Clause] if the church’s freedom to choose its ministers is at stake.” Id. At 948-49.”

“The paradigmatic application of the ministerial exception is to the employment of an ordained minister which, in cases involving Roman Catholicism, would include priests. See, e.g., Minker v. Balt. Annual Conference of United Methodist Church, 894 F.2d 1354, 1358 (D.C. Cir. 1990) (holding that an ordained Methodist minister “is clearly a minister” for purposes of the exception). But the ministerial exception encompasses more than a church’s ordained ministers. See, e.g., Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 461 (D.C. Cir. 1996). Federal courts have grappled with determining whether a particular church employee, though not ordained, nevertheless should be considered a “minister” for purposes of the ministerial exception. See, e.g., Starkman, 198 F.3d at 175-77 (choir director); Catholic Univ., 83 F.3d at 463 (Catholic nun); Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168 (4th Cir. 1985) (“associate in pastoral care”).”

“The circuit courts have not adopted a uniform general test for making that determination. Some courts utilize the “primary duties” test, which asks whether the employee’s primary duties are religious in nature. Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1243-44 (10th Cir. 2010); EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 597 F.3d 769, 778 (6th Cir. 2010), petition for cert. filed, 79 U.S.L.W. 3286 (U.S. Oct. 22, 2010) (No. 10-553); Catholic Univ., 83 F.3d at 463; Rayburn, 772 F.2d at 1168-69. Others appear to use a version of the “primary duties” test, though without expressly adopting it. Petruska v. Gannon Univ., 462 F.3d 294, 304 n.6, 306-07 & n.10 (3d Cir. 2006); Scharon v. St. Luke’s Episcopal Presbyterian Hosps., 929 F.2d 360, 362-63 (8th Cir. 1991). At least one court has opted for a multi-factor test. Starkman, 198 F.3d at 175-77; see alsoTomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039-41 (7th Cir. 2006) (discussing several factors).”

“For our part, we have declined to adopt any particular test. In EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272 (9th Cir. 1982), we analogized to the Fifth Circuit’s case law elaborating on McClure to conclude that a secretary was insufficiently like a minister to trigger the exception. See id. at 1277-78 (citing EEOC v. Sw. Baptist Theological Seminary, 651 F.2d 277, 283-85 (5th Cir. 1981); EEOC v. Miss.Coll., 626 F.2d 477, 484 (5th Cir. 1980)). The secretary’s role did not “go to the heart of the church’s function in the manner of a minister or a seminary teacher,” and her employment was not “the type of critically sensitive position within the church that McClure sought to protect.” Id. at 1278. Accordingly, we stated that “[t]he facts of the present case do not require this court to examine in depth the scope of the [ministerial] exemption.” Id.; see also EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1369 (9th Cir. 1986) (applying McClure without announcing a general test).”

Given the uncertainty in this key area of the law, the parties and friends of the court asked the Ninth Circuit for guidance in the form of a comprehensive, definitive ruling, but the court declined the initiation, restricting itself to the case at bar:

“The parties and amici have suggested that we adopt a test of general applicability—either the test created by the three-judge panel, a test of their own creation, or one of the tests used by our sister circuits. We decline that invitation. We leave for another day the formulation of a general test because, under any reasonable construction of the ministerial exception, Rosas meets the definition of a minister.”

Nevertheless, the court’s words are important on this question:

“We hold that the First Amendment considerations relevant to an ordained minister apply equally to a person who, though not yet ordained, has entered into a church-recognized seminary program to become a minister and who brings suit concerning employment decisions arising from work as a seminarian. The principle of “allowing the church to choose its representatives using whatever criteria it deems relevant,” Bollard, 196 F.3d at 947, necessarily applies not only to those persons who already are ordained ministers, but also to those persons who are actively in the process of becoming ordained ministers. Similarly, we can no more ask the church for a religious justification for its decisions concerning seminarians (ordained ministers in training) than we can ask the church “to articulate a religious justification for its personnel decisions” concerning its ordained ministers. Id. at 946.”

The panel then turned to Mr. Rojas’s complaint:

“Here, according to the complaint, Rosas “entered the seminary to become a Catholic priest in 1995 in Mexico” and, “[a]s part of [his] preparation for ordination into the priesthood, the Catholic Church required [him] to engage in a ministerial placement outside their diocese.” For his ministerial placement, Rosas was “placed in St. Mary Parish in Marysville, Washington,” where he “was hired to do maintenance of the church and also assisted with Mass.” Because Rosas affirmatively alleges that he was a seminarian and seeks to challenge the church’s wage payments concerning his work as a seminarian, we hold that Rosas is a “minister” for purposes of the ministerial exception.”

The court stressed the limitations of its ruling:

“Our holding today is limited. We do not address the extent of any ministerial exception concerning minors; at all relevant times, Rosas was an adult. Additionally, we agree with the courts that have held that, if a church labels a person a religious official as a mere “subterfuge” to avoid statutory obligations, the ministerial exception does not apply. Tomic, 442 F.3d at 1039. Here, there is no allegation or suggestion of bad faith or subterfuge.”

The court also limited the “ministerial exception” to persons whose employment involves primarily religious duties.  Needless to say, some very intricate questions canaries for any institution:

“Similarly, the ministerial exception may not apply to a seminarian who obtains employment with a church outside the scope of his seminary training. Here, Rosas challenges the church’s wages for his duties as a seminarian. As part of his seminary training, he alleges, he was placed at St. Mary Parish where he performed duties such as maintenance and assisting with mass. Fairly read, Rosas’ complaint alleges that he performed those duties as part of his seminary training.”

“We acknowledge that it is theoretically possible to read the complaint as alleging that the church hired Rosas for maintenance purposes independent of his participation in the seminary program. Rosas alleges that he “was hired to do maintenance of the church and also assisted with Mass.” One could read that allegation as follows: The church placed
Rosas at St. Mary Parish to perform some seminarian duties, such as “assist[ing] with Mass,” and that, in Rosas’ spare time, he applied for a secular maintenance position at the church and “was hired to do maintenance of the church.””

“Even if that theoretical possibility were sufficient to survive Defendants’ motion to dismiss—a proposition that we doubt —other indicators suggest that such a strained reading is incorrect.”

The lesson here is clear:  Any religious organization facing a claim by an employee with key religious duties should know about this ruling and study its parameters carefully.

Slote & Links regularly advises employers, unions, and individual employees and private religious schools about issues that arise in the workplace and at school. Feel free to give us a call if you have questions or issues in this area.