Bloomberg Law
Dec. 18, 2019, 2:34 PMUpdated: Dec. 18, 2019, 6:18 PM

Justices to Again Weigh Religious Defense in Job Bias Suits (1)

Erin Mulvaney
Erin Mulvaney

The U.S. Supreme Court is poised to decide the extent to which religious organizations can be exempt from discrimination lawsuits filed by their employees, settling a divide in courts over how broad that defense should be.

The justices Dec. 18 said they would examine, in two separate lawsuits, whether two Catholic schools in California could claim they were immune from the wrongful termination and bias lawsuits filed by two teachers. The outcome has the potential to expand the scope of the “ministerial exception,” a court-created doctrine that says the First Amendment prohibits lawsuits against religious organizations for hiring or firing ministers in violation of anti-bias laws.

Religious scholars, organizations, and advocates say the decision has the potential for broad reach, following a 2012 Supreme Court casein which the exception was first recognized. The U.S. Court of Appeals for the Ninth Circuit decided that the two teachers’ religious responsibilities weren’t enough to allow the schools to block their bias lawsuits. The appeals court said their titles, training, and responsibilities didn’t prove they were ministers. The schools separately petitioned the high court to overturn those rulings.

“These cases get us into deep water—theologically, historically and legally—really quickly,” said Beth Hurd, associate professor of political science at Northwestern University. She said the difficulty comes when churches act as public institutions, such as when they hire people for secular duties like school teaching. “A profound paradox sits at the heart of the exception.”

Hurd said the cases that are before the court once again raise the question of who counts as a church or religious organization that is entitled to the ministerial exception, legally-speaking, and who doesn’t. She said they also ask: who speaks for the church, and whether the church is “free to discriminate” and “effectively exempt” itself from secular law.

“All of these questions implicate the Court as a theological authority,” Hurd said. “This is the paradox at the core of these cases. It will not be resolved easily.”

Catholic School Teachers

One case revolves around an Our Lady of Guadalupe School elementary teacher, Agnes Morrissey-Berru, who sued for age discrimination and wrongful termination. In the other case, St. James School appealed a disability bias ruling in favor of a fifth-grade teacher, Kristen Biel, who had cancer.

The case that went before the high court in 2012 also involved a teacher, who sued her school over disability discrimination, but was blocked because she was considered a minister. Based on her title, the training and substance her title reflected, her own use of the title, and the important religious functions she performed, the justices held that the school could call on the exemption. But the court didn’t set forth a formula for determining when a worker is considered a minister.

Since that ruling, federal courts have developed two distinct approaches for determining when an employee is considered a minister. At least five federal circuits and two state high courts focus on the workers’ religious job duties. The Ninth Circuit held that the totality of circumstances in the job should be considered.

If the Supreme Court were to adopt a more expansive view of who counts as a ministerial employee, it would further protect the independence of employers that are religious institutions at the expense of the employees whose rights would be limited by the ministerial exception, said David B. Cruz, a professor of constitutional law at the University of Southern California Gould School of Law.

Cruz said a decision limiting protections available to employees would be difficult to modify through legislative action, because the exception stems from both Title VII of the 1964 Civil Rights Act and the First Amendment. “If the Court is not clear about the constitutional bounds of the ministerial exemption, it would be difficult for Congress to know what discretion it has to adjust the rights of employers and employees in these contexts,” Cruz said.

The Becket Fund for Religious Liberty, which represents both Catholic Schools, said the teachers who filed lawsuits played crucial roles in teaching the faith to their fifth-grade students. They both taught a religion class, integrated Catholic values into every subject they taught, joined their students in daily prayer, and accompanied students to Mass, the attorneys say. The schools decided not to renew their contracts based on performance, they say.

Becket argues that the ministerial exception protects all religious groups’ freedom to choose “ministerial” employees “without interference from bureaucrats or courts.”

“Parents trust Catholic schools to assist them in one of their most important duties: forming the faith of their children,” said Montserrat Alvarado, vice president and executive director at Becket, in a statement. “If courts can second-guess a Catholic school’s judgment about who should teach religious beliefs to fifth graders, then neither Catholics nor any other religious group can be confident in their ability to convey the faith to the next generation.”

A third petition for review remains pending before the high court that raises the same “ministerial exception” issue. Stephen S. Wise Temple, a Jewish temple that runs a preschool, challenged an intermediate California appellate court’s ruling for state labor regulators who sued over alleged overtime and break requirement violations.

Jennifer Anne Lipski, with JML Law, represents the workers in both cases. She didn’t immediately response to request for comment.

The cases are Our Lady of Guadalupe Sch. v. Morrissey-Berru, U.S., No. 19-267, cert. granted 12/18/19 and St. James Sch. v. Biel, U.S., No. 19-348, cert. granted 12/18/19.

(Updated with additional reporting.)

To contact the reporter on this story: Erin Mulvaney in Washington at

To contact the editors responsible for this story: Jay-Anne B. Casuga at; Karl Hardy at