Are Religious Employers Exempt from the Anti-Discrimination Laws?

In January, the Supreme Court issued a decision finding that the First Amendment bar discrimination lawsuits filed against religious employers when the employee meets the definition of a “minister.” Writing for a unanimous Court, Chief Justice Roberts discussed the roots of the Establishment clause, and concluded that allowing a lawsuit against a Lutheran primary school by a teacher who had been “called” to ministry by the Church which ran the school would violate the First Amendment’s prohibition against government interference with a religious organization.

The complaint against Hosanna-Tabor Evangelical Lutheran Church and School was initially brought by the EEOC on behalf of Cheryl Perich, the terminated employee, and alleged that Ms. Perich was terminated from her position as a teacher at the school due to discrimination based on a disability (narcolepsy) and reprisal for threatening to take legal action after the school refused to allow her to return to work.

This decision was pretty startling when first announced – was the Supreme Court really holding that religious employers are exempt from Title VII, the ADEA and the ADA as long as they claim the aggrieved employee is a “minister”? Given the vast array of religiously-affiliated employers in the United States, this decision seemed likely to deprive thousands of teachers, doctors and nurses of critical employment protections on the basis of an easily-asserted affirmative defense.

However, a closer review of the facts suggests the decision is less sweeping than would appear at first glance. Frankly, it does appear that Ms. Perich can reasonably be considered a “minister” within the common meaning of that word. She was not merely a teacher at the school, but had undergone several years of religious training by the Church specifically to gain certification as a “Minister of Religion, Commissioned.” After earning these qualifications, she was regarded as a “called” teacher. By contrast, teachers at the school who lacked this training and certification were called “lay” teachers.

As the Court noted, in her capacity as a “called” teacher Ms. Perich provided religious instruction to her students during classes four days a week, as well as teaching them standard non-religious school subjects. During religion classes, she led her students in prayer. She regularly attended and occasionally led weekly religious services for the student body. The Court also noted that Ms. Perich had claimed federal tax benefits which are reserved for members of the clergy.

After successfully teaching kindergarten and fourth grade as a “called teacher,” Ms. Perich developed narcolepsy and had to take disability leave, starting in June 2004. When she attempted to return to work in January 2005, the school informed her that the teacher it had hired to replace her would finish the rest of the school year. The school also questioned her readiness to return to work, despite her medical clearance. The situation swiftly deteriorated with Ms. Perich insisting that she should be reinstated and the school insisting that she accept a “peaceful release.” The school board voted to rescind her “calling” mere hours after she told the school principal that she had consulted an attorney and intended to assert her legal rights.

The trial court granted summary judgment based on the employer’s assertion of the “ministerial exception,” but was reversed by the Sixth Circuit, which held that Ms. Perich was not a “minister” within the meaning of First Amendment case law. A unanimous Supreme Court agreed with the trial court, holding that Ms. Perich was in fact a “minister” and therefore the School could not be required by a court to reinstate her, nor could her claim of wrongful termination – even if due to otherwise unlawful discrimination or reprisal – be heard.

The Court avoided creating a specific test for “minister,” finding only that Ms. Perich unquestionably was one based on all of the circumstances, which included her religious training, certification, job title, and duties. (It is unclear how much weight the Court gave to her prior tax filings claiming ministerial exemptions.) The Court also avoided ruling on whether lawsuits challenging adverse employment actions other than a termination would also be barred by the First Amendment. After all, the “ministerial exception” is based on the First Amendment’s prohibition on government intrusion on the freedom of religious institutions to choose, that is, to hire and fire ministers as they choose.

Does that mean that a religious employer would also be immune from a minister’s suit that alleged harassment or some other theory of employment discrimination? Or, if the Church and a minister enter into a contract governing their relationship, is the Church free to breach that contract without fear of a lawsuit? We will undoubtedly find out.

The full decision can be found at