INSIGHT: A Constitutional Safe Harbor for Religious Employers—The Ministerial Exception

As one of quite a few high-profile U.S. Supreme Court opinions released during the summer of 2020, Our Lady of Guadalupe v. Morrissey-Berru may have escaped some of the publicity that it would have otherwise received. Nevertheless, Our Lady of Guadalupe represents a critical development in the law at the intersection of religious liberty and employment discrimination.

Recognizing that the First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” the court affirmatively concluded that the judiciary has no place in employment discrimination disputes between a religious institution and those employees who further a religious mission.

Questions to Ask

Like any Supreme Court decision, Our Lady of Guadalupe drew some lines in the sand vis-à-vis religious liberty and employment disputes. Between those proverbial lines, however, is where the lower courts—and litigants—will color the decision’s scope. For employers, two questions reign supreme when determining the applicability of the so-called ministerial exception:

1. Which employers are considered religious institutions? and
2. Which employees are covered by the exception?

With regard to defining which entities are religious institutions, Our Lady of Guadalupe is of limited guidance. In many cases, this inquiry is perfunctory—places of worship, diocese, and religious elementary and secondary schools are consistently deemed religious institutions for purposes of the exception. Beyond that, however, Our Lady of Guadalupe broadens the scope of religious institutions by emphasizing—for purposes of religious liberty—the importance of providing religious education.

In reviewing some of the core values of the Catholic, Protestant, Jewish, and Islamic faiths, the court recognized that “religious education is vital to many faiths practiced in the United States.”Taking this reasoning a step further, the majority observed that some “non-deonominational Christian schools have proliferated with the aim of inculcating Biblical values in their students.”

Guideposts

Thus, while many cases (including Our Lady of Guadalupe) have already established this point in the context of religious elementary schools, the majority’s emphasis on the constitutional importance of religious instruction and education not only solidifies the reasoning, but also provides guideposts for other types of organizations to assert they fall within the exception.

For example, some overnight religious camps that include informal religious instruction may be covered entities under the exception. Further, a private organization with the mission of religious education could arguably fall within the scope, rendering at least some of its employees beyond the ambit of discrimination laws.

Regarding which employees are within the scope of the exception, Our Lady of Guadalupe is instructive. Building on the application of the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), the court rejected a rigid formulation for determining who falls within the exception. Instead, the court explained: “What matters, at bottom, is what an employee does.”

Notwithstanding job titles, the court recognized that “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” Not surprisingly, then, the court concluded that employment disputes between these individuals and their religious employers are beyond the purview of judicial intervention.

Affirmative Steps

Given the court’s broad interpretation of the “ministerial exception,” it behooves religious employers to take affirmative steps to ensure that they are poised to rely upon the exception should litigation be filed by “ministerial” employees. Regarding institutional coverage, religious institutions should clearly identify a religious mission in their employee handbooks, and explain how their employees further that mission. Where teaching, instruction, or education is central to an organization’s purpose and business, the mission statement and company policies should identify how that education is tied to religious principles.

Similar steps can be taken regarding specific employees and positions. For instance, whether an employee is a minister in name, conducts worship services, or “serves as a messenger or teacher of its faith,” the religious mission that the employee advances should be described in the employee’s job description.

Further, the employee’s performance in furthering that religious mission should be a central consideration in regular performance reviews. In some instances where it is not immediately apparent that the employee’s role is inextricably intertwined with religion, the employer could have the employee sign an acknowledgment that their employment advances a religious mission, and that it is part of their job responsibility to further that mission.

Due to the fact-intensive analysis, the scope of the ministerial exception will necessarily be colored by the factual paradigms presented to courts. As the process of precedent and stare decisis unfolds, employers should pay close attention to whether their business or employees could be covered by the constitutionally-required exception to the application of anti-discrimination laws.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Kristine Grady Derewicz is a shareholder in Littler’s Philadelphia office who works with employers in healthcare and higher education on a wide range of matters, including workplace compliance and jury trials in state and federal courts. Kris has experience in most areas of employment law, including discrimination, Family and Medical Leave Act, and the National Labor Relations Act.

Michael R. Romeo is an associate at Littler, based in Philadelphia, who represents employers in class action, discrimination, and benefit plan litigation. Michael also has experience in appellate litigation in both state and federal courts.