The quietly slumbering area of religious discrimination has been thrust into the news lately. In our  blog entry for September 21, 2011, we noted the general principle that Title VII, 42 U.S.C. § 2000e-2, prohibits discrimination based upon, among many other things, religion.  That is, an employer cannot discriminate on the basis of religion in hiring, firing or the terms and conditions of employment. 

We then discussed the exemption from this religious anti-discrimination provision provided to religious organizations which are permitted to hire and employ only those who subscribe to their religious beliefs. 


Finally, we described that this exemption, while originally applying only to the religious or non-secular activities of the organization (so that, for example, the organization could not discriminate on the basis of religion against a receptionist who was uninvolved in the religious activities of the organization), is now applicable even to the receptionist, irrespective of the nature of the activities or tasks performed, secular or non-secular, under an amendment to the statute. 


An important case in this area was argued in the Supreme Court yesterday. In

Hosanna-Tabor Evangelical Church and School v. EEOC, the Court dealt with a religious institution which employed a teacher who taught both secular subjects and a class in religion. She claimed to have a disability, and when she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination and because one of the tenets of the religious institution was that all disputes must be resolved internally and not in the courts. The issue placed squarely before the Court the eternal tension between government and religion, the ”wall” between them, and the possible “entanglement” between church and state.


At issue was the definition of “minister,” because” the “ministerial exception,” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.” The specific question was whether the teacher in this case was a “minister,” and therefore precluded from filing or suing for disability discrimination. The lower appeals court decided that she was not because, it reasoned, she spent far more time teaching secular courses than religious courses. Other lower courts have come up with other diverse holdings.             


The Supreme Court justices peppered counsel with questions trying to figure out the limits of the “ministerial exception,” when Justice Breyer frankly stated “This is tough and I’m stuck on this.”  Counsel for the religious institution argued that an “ordained” minster was clearly within the exception, and that a teacher of religion should be within the exception because “the government does not set the criteria for selecting and removing officers of the church.” The EEOC responded that the government has a compelling state interest in making sure that people are free to file charges of illegality or civil wrongs with government agencies without fear of retaliation. Indeed, Justice Sotomayor asked whether "society has a right at some point to say certain conduct is unacceptable? And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e., reporting it?”      


The ultimate decision in this case will likely be a significant one in this highly charged area of the law.