January 12, 2012

U. S. Supreme Court Unanimously Recognizes Ministerial Exception to Employment Discrimination Laws

Important Ruling in Hosanna-Tabor Affirms Freedom of Religious Institutions to Choose Their Own Ministers
Holland & Knight Alert
Nathan A. Adams IV

On January 11, 2012, the United States Supreme Court unanimously confirmed the existence of a “ministerial exception” — grounded in both the Free Exercise Clause and Establishment Clause of the First Amendment — that operates as an affirmative defense to bar a “minister” from suing a religious institution for employment discrimination. Hosanna-Tabor Evangelical Lutheran Church and Sch. v. Equal Employment Opportunity Comm’n, Case No. 10-553. This is one of the most important and sweeping religious liberty decisions in recent years.


Hosanna-Tabor Evangelical Lutheran Church and School, a member congregation of the Lutheran Church-Missouri Synod, employed Cheryl Perich as a fourth grade teacher and commissioned minister. Every day, she taught religion and the rest of the fourth grade curriculum, led prayers and devotional exercises, and planned and led chapel services. She became ill in June 2004 and was diagnosed with narcolepsy. Ms. Perich began the 2004-05 school year on disability leave, then in January 2005 notified the school that she planned to report for work. The school had already contracted with a teacher for the full year. When Ms. Perich threatened litigation contrary to church doctrine, the school terminated her employment. Ms. Perich filed a charge with the Equal Employment Opportunity Commission, alleging a violation of the Americans with Disabilities Act. The EEOC brought suit against the church and Ms. Perich intervened in the litigation.

Courts of appeal have long recognized the existence of a ministerial exception, but the question never previously reached the Supreme Court. The Supreme Court declined to adopt a test for who qualifies as a “minister,” but agreed that Ms. Perich qualified, and that the exception “is not limited to the head of a religious congregation....”

The particular facts the Court found important to the teacher’s status as a “minister” included these: (1) the school where she taught held the teacher out as a minister by, inter alia, extending a call to her for religious service and commissioning her; (2) the teacher had received a significant degree of religious training; (3) the teacher held herself out as a minister by, inter alia, accepting a formal call to religious service, claiming a special housing allowance on her taxes and referring to herself as serving in a “teaching ministry”; and (4) the teacher’s job duties reflected a role in conveying the church’s message and carrying out its mission including “transmitting the Lutheran faith to the next generation.”

Concurring with the decision, Justice Clarence Thomas expressed his view that the religious institution’s sincere views of who is a minister should be enough to trigger the ministerial exception. In a separate concurrence, Justices Samuel Alito and Elena Kagan emphasized that ordination and the title “minister” are not essential. They said the ministerial exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

The Court found that the Court of Appeals for the Sixth Circuit, in reaching the opinion that the teacher did not qualify for the ministerial exception, put too much weight on the fact that lay teachers at the school performed the same religious duties as called teachers and that called teachers also performed secular duties. The Equal Employment Opportunity Commission considered conclusive the allegation that only 45 minutes of the teacher’s day concerned exclusively religious functions. In contrast, the Supreme Court ruled, “The amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed....”

The Court concluded, “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.”

For religious institutions interested in exploring the applicability of the ministerial exception to their employees, or establishing grievance procedures, Holland & Knight’s Religious Institutions Team is pleased to help.

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