Gay Counselor, Catholic School Spar Over What Makes a ‘Minister’

A gay guidance director fired by a Catholic high school over her same-sex marriage will try to convince the Seventh Circuit on Friday that it risks setting a harmful precedent if it doesn’t reverse a ruling that she was a “minister.”

Millions of workers risk losing their protections against job bias if employers can use a contract to make an employee a minister, Michelle Fitzgerald says. That’s essentially what Roncalli High School Inc. did to her and it could happen to janitors, nurses, and other workers like her who perform predominantly secular duties, she says.

Roncalli and the Archdiocese of Indianapolis dispute that, relying on a similar US Appeals Court for the Seventh Circuit case decided in their favor less than a year ago involving Fitzgerald’s now-former co-worker. That decision controls here and applying it against Fitzgerald won’t endanger workers’ civil rights, the school and archdiocese say.

The lower court gave undue weight to a single piece of paper in granting summary judgment on Fitzgerald’s sex discrimination claim, Fitzgerald’s attorney, Gabriela Hybel, said. “We think that is very concerning,” she said.

The stakes are high both for Fitzgerald personally and for what the defendants’ argument could mean more broadly, Hybel said. She is with Americans United for the Separation of Church and State.

Fitzgerald’s circumstances are “virtually identical” to those at issue in Starkey v. Roman Catholic Archdiocese of Indianapolis Inc., which makes the outcome in her case especially straightforward, the defendants’ attorney, Joseph C. Davis of the Becket Fund for Religious Liberty, said. Both cases involve the well-settled principle that religious schools of all faiths have the right to freely choose those who are tasked with passing on their beliefs to the next generation, Davis said.

Ministerial Exception

Fitzgerald’s appeal will give the Seventh Circuit another chance to weigh in on a legal doctrine that has generated frequent litigation and multiple US Supreme Court rulings.

The lower court’s approach strayed from the Supreme Court’s multi-factor test for triggering the “ministerial exception” to Title VII of the 1964 Civil Rights Act, Hybel said. The contract didn’t reflect what Fitzgerald did or what she was really expected to do, and other evidence shows her job was mostly secular in nature and that her circumstances were different from those of her former colleague, Lynn Starkey, Hybel said.

The purpose of the exception is to reconcile the strong public policy against employment discrimination with the First Amendment right of an employer with a religious mission to hire someone who subscribes to its religious beliefs, University of Connecticut Law School professor Sachin S. Pandya said.

There is “a pretty durable tension” between those two interests, Pandya said.

The exception isn’t new, it’s just gotten a lot more publicity since the Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in 2012, attorney Frank Sommerville said. The exception arises out of the free exercise clause of the US Constitution, he said.

It’s really important that the government doesn’t intrude on that right, Sommerville said. He is a shareholder with Weycer, Kaplan, Pulaski & Zuber PC and regularly represents religious organizations.

Use of the term minister “is a bit of a misnomer,” Sommerville said. It creates the sense that religious organizations only function through clergy. The exception is broader than that, and also applies to employees other than clergy who are involved in faith-based practices and a religious organization’s mission, he said.

‘Starkey All Over Again’

Fitzgerald’s case is “Starkey all over again,” Sommerville said. Like the plaintiff there, Fitzgerald worked under a contract and a handbook that required her to impart the Catholic world view to students, he said.

That means teaching it and living it, even if you don’t believe in it, Sommerville said. That’s the purpose of the school, he said.

Hybel said Fitzgerald’s case is different than Starkey. Fitzgerald can show the ministerial contract Roncalli had her sign after she’d worked there for more than 14 years was a pretext for sex bias, Hybel said.

Fitzgerald’s strong job evaluations and what she did day after day for years demonstrate that she didn’t function as a minister, Hybel said. Fitzgerald was never criticized for not performing any alleged religious duties, Hybel said.

Her role was similar to a guidance counselor at a public high school, helping students with college applications and the like, Hybel said. Starkey had a different background and a different role. This case isn’t controlled by Starkey because the Supreme Court test for who is a “minister” is fact-intensive and decided on a case-by-case basis, Hybel said.

Fitzgerald performed religious functions and represented to Roncalli that she was performing those functions, the school’s lawyer, Davis, said. Starkey rejected the argument that an employee can avoid the ministerial exception by not performing duties expected of them, he said.

Fact Issues for Trial

Pandya said the issue on appeal isn’t whether Fitzgerald was a minister. Because she’s challenging a summary judgment ruling, the issue is really whether a reasonable jury could potentially find that she wasn’t a minister, he said.

The ministerial exception is a legal defense that must be proven, Pandya said. There are disputed facts on whether Fitzgerald’s situation was similar enough to Starkey for Fitzgerald’s case to go to trial, he said.

The district court identified eight or so disputed facts on whether Fitzgerald was a minister before relying on the contract to find that she was one, Hybel said.

Once Roncalli and the archdiocese presented documents establishing that Fitzgerald carried religious duties, that triggered the ministerial exception, Sommerville said. There’s no way Fitzgerald could present facts to counter that showing, he said.

The defendants’ brief raised alternate grounds for affirmance. These include whether an exemption in Title VII for religious employers applies only to religious bias claims or also covers sex and other discrimination claims, and whether a religious entity’s First Amendment right to “expressive association” allows it to terminate employees who reject the teachings of the faith.

But the ministerial exception is “the central issue” on appeal and is expected to be the focus of oral argument, Hybel said.

The case is Fitzgerald v. Roncalli High Sch., Inc., 7th Cir., No. 22-2954, oral argument 6/2/23.