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Ministerial Exception Meets Its Match: Primary Duties of Secular Employees
In March of this year, the Sixth Circuit, in EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, issued an important opinion that reshaped the "ministerial exception" defense available to qualified religious institutions, which, if applicable, constitutionally exempts them from actions under the discrimination laws by qualified "ministerial employees." The district court had held that ADA discrimination and retaliation claims brought by a teacher against a religious school could not be heard because she was a minister covered by the exception. The Sixth Circuit reversed, holding the ministerial exception did not apply because the plaintiff's primary duties were not ministerial in nature. The court's rationale narrows the scope of the ministerial exception in employment cases against religious affiliated institutions in Tennessee. To fully understand the importance of this decision it is worth taking a look at the exception's history and progeny.
The ministerial exception has gone by many names " ministerial exception, ministerial exemption, ministerial exclusion, and the doctrine of ecclesiastical abstention, to name a few " but the nature of the exception is the same. It excludes certain employees of religious affiliated employers from the application of federal and state employment discrimination laws. There are two distinct lines of ministerial exception cases. The first, which is ultimately premised on First Amendment grounds, applies to "ministerial employees." This type of ministerial exception includes: (1) ministers and clergy employees whose duties are "ministerial," (b) employees whose "primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship," and positions that are "important to the spiritual and pastoral mission of the church." If the employee qualifies as "ministerial," the religious institution has a complete defense to employment claims whether statutory, contractual, or based upon common law.
The second type of ministerial exception has both statutory and constitutional roots, and allows religious affiliated employers to favor applicants based on their religion and to impose religion-mandated ethical standards on employees. Perhaps the most prevalent use of this type of ministerial exception is where employment decisions by a religious-affiliated employer are made for doctrinal purposes, including an employee's failure to adhere to doctrinal directives. For instance, in Boyd v. Harding Academy of Memphis, a single teacher at a school affiliated with the Church of Christ was terminated for engaging in premarital sex, which became evident when she became pregnant. The teacher sued for gender and pregnancy discrimination, but the court granted summary judgment to the employer because it "articulated a legitimate, non-discriminatory reason for plaintiff's termination when it stated that plaintiff was fired not for being pregnant, but for having sex outside of marriage in violation of [the school's] code of conduct."
History of the Ministerial Exception
The ministerial exception is rooted in the First Amendment's guarantee of religious freedom. The First Amendment contains an absolute prohibition against civil or secular courts deciding religious, ecclesiastic or doctrinal disputes. In fact, courts have repeatedly held that they have "no ecclesiastic jurisdiction and do not pass upon questions of faith, religion or conscience." For instance, in Watchtower Bible, the Tennessee Court of Appeals stated that "[c]ivil courts cannot adjudicate disputes turning on church policy and administration or on religious doctrine and practice."
While the ministerial exception was first applied in the context of Title VII suits against religious employers, the exception has been extended to suits under the ADA, FLSA, ADEA and other laws as well. The circuits have applied the ministerial exception in a number of ways. The Sixth and Seventh Circuits have applied the ministerial exception as jurisdictional in nature, and as an appropriate ground for a motion to dismiss pursuant to Fed. R. Civ. P. 2(b)(1). The First, Third, Tenth, Ninth, and First circuits treat the exception as an affirmative defense under Fed. R. Civ. P. 12(b)(6), and the Eleventh and Fifth circuits treat it as a mandate to interpret the discrimination laws not to apply to claims between ministers and their churches.
Although priests, nuns, pastors, ministers, and deacons are clearly ministerial, the exception has been interpreted to reach more broadly than that group. For example, a parish minister of music has been held to be ministerial. Also, the Seventh Circuit, in Alice-Hernandez v. Catholic Bishop of Chicago, found a "Hispanic Communications Manager" to be a ministerial employee. The Hispanic Communications Manager's position was essentially a press secretary, and her duties included "composing media releases and correspondence as well as developing a working relationship with various constituencies of the Hispanic community and composing articles to be published in Church media." Because she was "integral in shaping the message that the Church presented to the Hispanic community," the court concluded she served a ministerial function.
To determine whether the first type of ministerial exception applies applies (i.e. the complete defense based on the First Amendment), two main factors that are applied: (1) the employer must be a religious institution, and (2) the employee must be a ministerial employee. To meet the first prong it is not necessary to be a traditional religious organization; rather, a religiously affiliated entity is considered a religious institution if its "mission is marked by clear or obvious religious characteristics." The Sixth Circuit has found religiously affiliated hospitals, schools and corporations can meet the first prong of the test.
The second prong is a bit more tricky, and this is where the recent Hosannah-Tabor decision comes in. The Sixth Circuit has instructed courts to look at "primary duties" in determining whether an employee is ministerial. This includes deciding "whether a position is important to the spiritual and pastoral mission of the church." Applying this test, the ministerial exception does not apply to a religious institution's lay administrative staff, accountants, custodians, maintenance employees, lay teachers primarily teaching secular courses, athletic coaches and so forth.
In analyzing the second type of ministerial exception (i.e. based on statutory exceptions), the first factor is the same; the employer must be a religious institution. The rest of the inquiry is where this ministerial exception diverges, because the employee need not primarily perform ministerial duties. Instead, there must be some religious tenet that the employer used to make a hiring, promotion, termination or other adverse employment decision. This exception would apply, for example, to a lay teacher leading secular courses at a religious school if she was fired on doctrinal grounds, such as having premarital sex.
Ministerial Exception and the ADA
The first type of ministerial exception, however, saw some narrowing this year in the Sixth Circuit, which of course would control cases involving religious affiliated employers in Tennessee. In Hosanna-Tabor, a teacher took medical leave and was diagnosed with narcolepsy. The teacher's employer, a religious affiliated school, declined to return her to teaching duties because of her diagnosis. The plaintiff declined to resign and reported for work. She then refused to leave until she received written confirmation that she had reported for work, and she threatened litigation. The school terminated her employment and her "ministry." The teacher brought suit alleging discrimination and retaliation under the ADA. The defendant sought dismissal based on the first type of ministerial exception, which, if applicable, would exempt the decision from the reach of the ADA.
Applying the two-prong test discussed above, the district court found the school was a religious entity and the teacher was a ministerial employee. The Sixth Circuit agreed with the first part of the analysis, but disagreed that the teacher's duties made her a ministerial employee. The key issue was not the title that the school gave her (a "called" teacher), but whether her primary duties were secular or religious. The school differentiated between lay teachers and "called" teachers (whom it considers "commissioned ministers") in the method of hiring and the terms of their employment; however, the duties of a called teacher barely differed from those of a lay teacher. The plaintiff was a called teacher, but spent "only" forty-five minutes of every seven-hour school day in religious activities. The Sixth Circuit held that this was simply not enough to make her a ministerial employee. Her primary duties were secular, and there was no indication that the school relied upon her to indoctrinate students into the school's theology.
The Sixth Circuit concluded that the plaintiff's claims that (1) the school would not allow plaintiff to return from her leave because of her narcolepsy, and (2) that she was terminated in part, because she threatened litigation, were not barred by the ministerial exception. Note that the school had timely asserted doctrinal reasons for terminating plaintiff, the court's analysis would necessarily have focused on the second type of ministerial exception " and this case might have had a different outcome.
The concurrence in Hosanna-Tabor highlights the split of authority on what is required to be considered a ministerial employee. The application of the ministerial exception has caused a struggle with many courts. As noted in "The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test," "application of the primary-duties test has created split authority in several areas, including regarding parochial school teachers." Several courts have also commented on the lack of uniformity in this area. Hosanna-Tabor provides some clarity to the issue in the Sixth Circuit, albeit narrowing the scope of who may be considered a ministerial employee.
Given the breadth of employment in Tennessee by religious affiliated institutions, churches, schools, colleges and hospitals, the ministerial exception provides a defense to many employment claims not available to secular employers. This includes discrimination against employees on nonreligious grounds where the individual qualifies as a ministerial employee. Given the Sixth Circuit's focus on time spent on religious activities as a benchmark for the primary duty, that defense has been narrowed significantly in claims of discrimination on nonreligious grounds. Religious employers remain free, however, to make employment decisions on doctrinal grounds without significant risk of interference from the courts.
- 597 F.3d 769 (6th Cir. 2010).
- See EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 800-01 (4th Cir. 2000).
- Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1168-69 (4th Cir. 1985).
- Id. at 801; See also Field Operations Handbook, §10b03(b), Wage and Hour Div., U.S. Dept. of Labor (1993).
- Section 702 of Title VII is "construed broadly to exclude from the scope of the act any employment decision made by a religious institution on the basis of religious discrimination." EEOC v. Mississippi Coll., 626 F.2d 477, 484, 487 (5th Cir. 1980).
- See, e.g., Boyd v. Harding Academy, 88 F.3d 410, 414 (6th Cir. 1996) (holding that employer "articulated a legitimate, non-discriminatory reason for plaintiff's termination when it stated that plaintiff was fired not for being pregnant, but for having sex outside of marriage in violation of [the school's] code of conduct."); Little v. Wuerl, 929 F.2d 944, 947-48 (3rd Cir. 1991) (holding that suit under Title VII by non-Catholic teacher terminated for remarriage was barred by the ministerial exception; constitutional permission to employ persons of a particular religion included permission to employ persons whose beliefs and conduct were consistent with the employers' religious precepts).
- Boyd v. Harding Academy, 88 F.3d 410, 414 (6th Cir. 1996); but see Cline v. Catholic Diocese, 206 F.3d 651 (6th Cir. 1999) (while acknowledging the legality of terminating employees for violating the church's principle against premarital sex, the plaintiff created an issue of material fact as to whether she was terminated due to her pregnancy or for violating principles against premarital sex.).
- U.S. Const. amend. I (mandating that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof"); Hollins v. Methodist Healthcare Inc., 474 F.3d 223, 225 (6th Cir. 2007)
- Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09 (1976).
- Anderson v. Watchtower Bible & Tract Society of NY Inc., No. M2004-01066-COA-R9-CV, 2007 Tenn. App. LEXIS 29 ** 12-13 (Tenn. Ct. App. Jan. 19, 2007) (citing Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-09 (1976)); See also Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94 (1952).
- Anderson v. Watchtower Bible and Tract Society of New York Inc., 2007 Tenn. App. LEXIS 29 * 13 (Tenn. Ct. App. Jan. 19, 2007).
- McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972).
- Hollins v. Methodist Healthcare Inc., 474 F.3d 223, 225 (6th Cir. 2007); Field Operations Handbook, §10b03(b) Wage and Hour Div., U.S. Dept. of Labor (1993).
- Hollins v. Methodist Healthcare Inc., 474 F.3d 223, 225 (6th Cir. 2007); Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039 (7th Cir. 2006).
- Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir. 1989); Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006); Bollard v. Cal. Province of the Soc'y of Jesus, 196 F.3d 940, 951 (9th Cir. 1999); Bryce v. Episcopal Church in the Diocese, 289 F.3d 648, 654 (10th Cir. 2002).
- Gellington v. Christian Methodist Episcopal Church Inc., 203 F.3d 1299, 1302-04 (11th Cir. 2000); McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972).
- The Roman Catholic Diocese of Raleigh, 213 F.3d at 802.
- Alicea-Hernandez v. The Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003).
- Id. at 703-04.
- Id. at 704.
- Hollins v. Methodist Healthcare Inc., 474 F.3d 223, 226 (6th Cir. 2007).
- Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985).
- See "The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test," 121 Harv. L. Rev. 1776, 1788 (2008).
- EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 597 F.3d 769, 783 (6th Cir. 2010) (quoting "The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test," 121 Harv. L. Rev. 1776, 1788 (2008)).
- See Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) ("Circuit courts applying the ministerial exception have consistently struggled to decide whether or not a particular employee is functionally a 'minister'"); Coulee Catholic Sch. v. Labor & Indus. Rev. Comm., 768 N.W.2d 868, 881 (Wis. 2009) (explaining contrasting ways in which courts have interpreted primary-duties test); Weishuhn v. Catholic Diocese of Lansing, 756 N.W.2d 483, 492-93 (Mich. Ct. App. 2008) (listing cases in which ministerial exception has been applied to teachers, and cases in which it has not). See also Petition for Writ of Certiorari, Archdiocese of Washington v. Moersen, 552 U.S. 1179, (2007) ("[T]eachers at church-related schools have been included within the ministerial exception by some courts and excluded by others").
EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLC in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.