Religious Organization Exemption

Slate reports that the creator of “a Noah’s Ark–themed creationist amusement park” in Kentucky – an “Ark park” — (the same person who created the Creation Museum) has instituted a hiring policy which requires applicants to sign three documents before being hired: a “Salvation testimony,” “Creation belief statement,” and a “Confirmation of your agreement with the AiG statement of faith.”  Slate notes that “AiG is Answers in Genesis, Ham’s ministry and Ark Encounter’s parent company.”

Noah's ark : Noah s Ark cartoon

As Slate puts it, “The park is quite openly instructing all applicants to pledge that they personally believe in creationist Christianity. If an applicant has other beliefs, her application to Ark Encounter isn’t welcome. … AiG’s statement of faith is no mere loyalty oath: It’s a four-part theological declaration mandating that all signatories accept dozens of fundamentalist Christian principles.”

Does this discriminate on the basis of religion, in violation of Title VII?  I mean, a very religious pre-req for hiring which excludes all non-believers?

Before you jump to conclusions, consider whether the job involves religious doctrine, such as teaching creationism or being a religious guide to the various amusements and events.   If so, your conclusion might be different if you then considered the “ministerial exception.”

The Ministerial Exception

The “ministerial exception” is written into Title VII, and states that:

“This subchapter shall not apply to an employer with respect to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

Put simply, a religious insitution can avoid the anti-discrimination employment laws with respect to employees performing religious-related, or ministerial, functions.

Read the Supreme Court’s key decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which held that the First Amendment bars the government from interfering with the decision of a religious group to fire one of its ministers.  What this means is that the so-called “ministerial exception” exempts an employer from the application of the anti-discrimination laws, and an employee deemed a minister has no recourse to Title VII, the ADA, the ADEA, etc.   See our earlier discussion of this case.

Is this amusement park a religious insitution? Is it required to be to be entitled to the “ministerial exception?”

But What If Public Money Is Involved?

But consider this wrinkle:  The Ark could not obtain all the necessary financing so he turned to public funding.  Slate notes that “Kentucky’s Tourism Development Finance Authority gave preliminary support for $18.25 million in tax credits for Ark Encounter, citing [the creator’s] promise that the project would create 600 to 700 jobs.  … ultimately, the state could grant Ark Encounter up to $73 million in tax breaks.”

So, is using taxpayer money and discriminating in hiring on the basis of religion legal?

The Kentucky agency which oversees tax incentives stopped funding the project because of the discriminatory hiring issues:  “the Commonwealth does not provide incentives to any company that discriminates on the basis of religion and we will not make any exception for Ark Encounter, LLC.”

In response, Ark Encounter’s executive director said that the state was “requiring us to give up our religious freedom and our religious rights.”

Any comments?

 

 

We reported last week about the Burwell v. Hobby Lobby Stores, Inc. decision holding that a closely-held, non-religious corporation whose owners had religious objections to providing certain forms of birth control could be exempt from the Affordable Care Act mandate requiring coverage for birth control.  The decision, although seemingly limited by the majority, may have broad-reaching effects on which portions of the ACA with which a corporate employer must comply.  The true expanse of the decision will play out in the coming months as the Supreme Court has ordered review of six similar cases in light of the ruling.

However, employers should be careful before trying to hide behind the Hobby Lobby ruling in other aspects.  Justice Alito specifically said that the ruling cannot be used for employers to use a religious belief to discriminate against employees.  To quote Justice Alito:

“The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction . . . . Our decision today provides no such shield.  The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”

In short, Hobby Lobby does not alter Title VII analysis.

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“More than 100 people — activists, court enthusiasts and reporters — gathered outside the Supreme Court building early Monday, awaiting the last day of the court’s term, when the justices were expected to rule on whether President Obama’s health care law can require corporations to pay for insurance coverage for contraception.”      Thus spake the New York Times this morning before this historic decision was announced.

And the decision?   This, according to the AP which minutes ago wrote:

“The Supreme Court says corporations can hold religious objections that allow them to opt out of the new health law requirement that they cover contraceptives for women.    The justices’ 5-4 decision Monday is the first time that the high court has ruled that profit-seeking businesses can hold religious views under federal law.   And it means the Obama administration must search for a different way of providing free contraception to women who are covered under objecting companies’ health insurance plans.

Justice Samuel Alito wrote the majority opinion.   The court’s four liberal justices dissented. 2287427_s

The court stressed that its ruling applies only to corporations that are under the control of just a few people in which there is no essential difference between the business and its owners.  Alito also said the decision is limited to contraceptives under the health care law.   “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs,” Alito said (emphasis aded).

Can The Sincerely Held Religious Belief Of Hobby Lobby’s Owner Be Imputed To The Business?   The Supreme Court Says “Yes”

Since the passage of the “Patient Protection and Affordable Care Act (“ACA,” or “Obamacare”), employers who claim that their religious beliefs prevent them from using, paying for, or supporting the use of contraception, have claimed that this religious claim should be imputed to their wholly-owned companies such that these companies should be exempt from having to provide or participate in health insurance that includes providing contraceptives (or else incur a penalty).

Can an owner’s religion be imputed to a corporation such that the corporation can claim that Obamacare violates either the Religious Freedom Restoration Act (known as “RFRA”) or the First Amendment?

Last year an Oklahoma federal court issued a decision which denied an injunction sought by Hobby Lobby Stores, a for-profit, secular corporation owned by a family management trust whose trustees are practicing Christians, which challenged the validity of the ACA’s women’s preventive care services mandate.   The Court held that Hobby Lobby, as a secular, for-profit company, does not satisfy the ACA’s definition of a “religious employer,” and concluded that plaintiffs had no likelihood of succeeding on the merits of their claims.

A federal appeals court in Philadelphia agreed with the Oklahoma court.

An Earlier Ruling In Favor Of Hobby Lobby’s Position

But on November 2, 2012, we reported that a federal court in Michigan enjoined the application of the ACA rule.   The Michigan court dealt with a family which owns 100% of the voting shares of a for-profit corporation that manufactures wood cabinets and has 950 employees.   “The Hahns practice the Mennonite religion.   According to their Amended Complaint, the Mennonite Church ‘teaches that taking of life which includes anything that terminates a fertilized embryo is intrinsic evil and a sin against God to which they are held accountable.’ … the Hahns object to two drugs that must be provided by group health plans under the [ACA] Mandate that ‘may cause the demise of an already conceived but not yet attached human embryo.’ (… These are ‘emergency contraception’ drugs such as Plan B (the ‘morning after pill’) and ella (the ‘week after pill’).”

Does Citizens United Afford A Corporation Religious Rights?

The Court, dealing with the (in?)famous Citizens United case, where the Supreme Court held that “the Government may not suppress political speech on the basis of the speaker‘s corporate identity,” found that “whether Citizens United is applicable to the Free Exercise Clause is a question of first impression” and “we must consider whether the Free Exercise Clause has historically protected corporations, or whether the ‘guarantee is ‘purely personal’ or is unavailable to Corporations’ based on the ‘nature, history, and purpose of [this] particular constitutional provision.’”

The Court held that “We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion.” The Court stated that “we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights. Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.”

The Dissent

In a 66-page dissent which called the ruling “deeply disappointing,” and “tragic,” the dissenting judge claimed that “one need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the government’s determination to either make the Hahns bury their religious scruples or watch while their business gets buried.”

Intending to soften the blow, especially in the face of the lengthy dissent, the majority stated that:

“our decision here is in no way intended to marginalize the Hahns’ commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an ‘intrinsic evil and a sin against God to which they are held accountable’ … and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary—that a for-profit corporation can engage in religious exercise—would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners (emphasis added).”

 

347125_sOn November 2, 2012, we reported that a federal court in Michigan had enjoined the application of the rule of the Patient Protection and Affordable Care Act (“ACA”) that would have required a “secular, for-profit, family owned and operated corporation” owned by a practicing Catholic to provide employee health insurance that covers contraception.

The owner contended that it was contrary to Catholic doctrine to use, pay for, or support the use of contraception, and that having his company provide or participate in health insurance that includes providing contraceptives (or else incur a penalty) violates his sincerely-held religious beliefs and substantially burdens his free exercise of religion.

An Oklahoma federal court subsequently issued a decision directly at odds with the Michigan one, demonstrating the split among federal courts over the rights of for-profit, secular employers to challenge the validity of the ACA’s women’s preventive care services mandate. The Court denied a similar injunction motion filed by Hobby Lobby Stores and Mardel, both for-profit, secular corporations owned by a family management trust whose trustees are practicing Christians.

The Court held that Hobby Lobby and Mardel, as secular, for-profit companies, do not satisfy the ACA’s definition of a “religious employer,” and concluded that plaintiffs had no likelihood of succeeding on the merits of their claims.

The Hobby Lobby case was just argued today before the Supreme Court on the issue of “whether corporations may refuse to provide insurance coverage for contraception to their workers based on the religious beliefs of the corporations’ owners.”  Both sides agree that the stakes are high – on many levels.

The company and its religious supporters claim that religious freedom is at stake — but can a corporation have a religion?  Other attributes of personhood? And does it adopt the religion of its owner(s)?  And if the corporate form was created to shield an owner from personal liability what of this shield may be chipped away if it is held that there the shield is religiously permeable?  And what about the religious rights of employees with religions different from the corporate owners?

In the New York Times today there is an interesting discussion/debate on the possible implications of a Hobby Lobby decision on employment discrimination based upon sexual orientation.  One of the commentators is Chai Feldblum, an EEOC Commissioner.

The debate’s intro reads:

“The federal government no longer discriminates against same-sex couples. But it does not forbid discrimination over sexual orientation or gender identity: In most states, employers can fire, or not hire, because of a person’s sexual orientation, and discrimination in housing, education, public accommodations and other contexts is widely legal.  Some say a Supreme Court case on religious freedom could expand that ability.

Does the United States need a new approach to nondiscrimination law, or should it simply recognize more “protected classes”?”

The rest is fascinating reading.

 

With our post yesterday on what we feel will be the growth of cases involving religion and the “ministerial exception,” we received an insightful question from Joanne Albertsen, a NYC attorney:

“Really interesting series of cases. I wonder if we’ll see more of these cases arise for employees of religious orgs as the status of same sex couples in particular becomes more solidified with certain states and the federal government (at least to some extent) recognizing same sex unions. I could also imagine this area of law intersecting with the Affordable Care Act if certain religious organizations are required to provide insurance for procedures or medications they find objectionable (this is still undecided, I believe). Thanks for posting!”

Joanne, I think you are right.  With the conflict over the Affordable Care Act, and gender orientation and same sex couple issues before so many courts, it is inevitable given the stew that is American politics and culture that religion and the religious exemption will come into play, and the “ministerial exception” will be front and center.   Look forward to it.

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Just last week we reported on a new case in Massachusetts involving alleged state law sex and sexual orientation discrimination by a religious institution based upon a refusal to hire a job applicant for a food service position who listed his “husband” as his emergency contact.  We discussed the knotty problem of such a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws, and the “ministerial exception” to the application of the federal anti-discrimination employment laws.”

The Ministerial Exception

The “ministerial exception” is written into Title VII, which states that:

“This subchapter shall not apply to an employer with respect to … a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

Put simply:  a religious insitution can avoid the anti-discrimination employment laws with respect to employees performing religious-related, or ministerial, functions.

See the Supreme Court’s key decision in Hosanna-Tabor Church v. Equal Employment Opportunity Commission.

New State Law Case

12093195_sWe have just learned about a case from the state of Washington which involves only state anti-discrimination law, and which highlights the delicate balance when it comes to religion and anti-discrimination laws.  The state Supreme Court was asked by a federal court to render an opinion as to whether Washington state law, which forbids employment discrimination but totally exempts nonprofit religious institutions violates the state constitution. The statute does not create a distinction between religious and non-religious functions.

In that case, a 59-year-old African American unarmed security guard at a medical center owned by Franciscan Health System suffered a stroke and was fired, although he claimed that he could still perform his job duties.  He sued alleging race and disability discrimination.

The employer contended that the firing had nothing to do with its religious activities; it simply argued that it was completely exempt from the Washington Law Against Discrimination (“WLAD”) by its very language.

The federal judge formally asked the state’s highest court for guidance as to the state law :  Under the WLAD, he asked, “Can the Franciscans, or other religious organizations not for profit, discriminate against anyone on any basis, freely with impunity?”   The federal judge noted that “there are no cases construing the religious exemption in the context of this case, where the alleged discrimination has nothing to do with any religious purpose or activity.”

The state court’s decision was fractured –  four state justices said that the total exemption from the state’s anti-discrimination laws for religious institutions was valid; four state justices disagreed.  It came down to the opinion of the ninth justice.

The deciding Justice held that the law isn’t “facially unconstitutional,” because “there is a reasonable ground for the exemption for religious and sectarian organizations … to promote two goals: avoiding excessive entanglement with religious doctrines and practices and facilitating the free exercise of religion guaranteed by our Washington Constitution.”

However, said the Justice (without using the term “ministerial exception” which is utilized in Title VII jurisprudence):  “the constitutionality of the exemption depends entirely on whether the employee’s job responsibilities relate to the organization’s religious practices. … [that is it is] constitutionally applied in cases in which the job description and responsibilities include duties that are religious or sectarian in nature.”

In effect, therefore, the state court upheld a distinction between religious and non-religious functions under the state law, and thereby allowed the disabled security guard to proceed with his case in federal court.

 

The Boston Globe and Boston.com have reported what may be a legal first – a case just filed with the Massachusetts Commission Against Discrimination (MCAD) against a religiously affiliated college prep school by a gay man who claims that his offer of employment was withdrawn after the school discovered that he listed a “husband” as his emergency contact.

The applicant was offered a job as food services director, but he claims that a school official said that “the Catholic religion doesn’t recognize same-sex marriage, and that was her excuse. She said, ‘We cannot hire you.’ If I’m planning and making meals for students, I’m not sure what my being gay has to do with the job. All I did was fill out the form honestly.” He alleges sex and sexual orientation discrimination.

His attorney said that “There is a balance between important values, which are religious liberties, and discriminatory practices. This is a job that has nothing to do with religion . . . and this weighs toward discrimination. Religiously affiliated entities do not have a free pass to do as they please in how they treat employees, particularly when it comes to our important laws against discrimination.”

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The Ministerial Exception

We have discussed the “ministerial exception” before. On January 11, 2012, we reported about a significant First Amendment religious freedom decision involving the “ministerial exception” which was decided that day by the Supreme Court, Hosanna-Tabor Church v. Equal Employment Opportunity Commission. The Court had before it a teacher in a religious institution who taught both secular subjects and a class in religion. When she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination. Her case involved a head-to-head confrontation between First Amendment religious freedom and the anti-discrimination employment laws.

At issue before the Court 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 unanimous Court held that the religious institution must be free to choose its own ministers without state involvement: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

Non-Ministerial Duties

In a post last June, we reported that the Roman Catholic Archdiocese of Cincinnati fired a non-Catholic computer teacher in a parochial school allegedly for violating an employment contract requiring her “to conform with Catholic doctrine, which considers pregnancy out of wedlock through artificial means ‘gravely immoral.’” Did the ministerial exception apply to her and thus permit her firing?

Plaintiff was a female non-Catholic, gay, unmarried parochial school computer teacher. She claimed that she was fired for being pregnant and unmarried. Prior to trial, the archdiocese lost a motion based upon the recognized “ministerial exception,” since although Plaintiff was a non-Catholic (and thus did not conform to “Catholic doctrine”) she taught only computer classes (and not, for example, religion classes) and was even barred under church rules from teaching religion to her elementary school students.

Therefore, since she did not have ministerial duties in teaching computer classes, the exception did not apply, and a federal jury in Ohio agreed with her and awarded her $171,000 in damages and back pay. The anti-discrimination laws trumped religious considerations in that case.

In the present Massachusetts case, a Boston lawyer, Nancy Shilepsky, was quoted as saying that “Our Supreme Judicial Court takes a serious look at issues involving religious liberty and at issues involving discrimination. They are careful to try to strike the appropriate balance.”

“Balance” is always key in analyzing religious discrimination cases, or cases where religious practices are involved.

 

The issue of whether a secular, for-profit corporation has religious rights under the First Amendment has come up with some frequency recently.  We wrote in July that “Since the passage of Obamacare, employers who claim that their religious beliefs prevent them from using, paying for, or supporting the use of contraception, have claimed that this religious claim should be imputed to their wholly-owned companies such that these companies should be exempt from having to provide or participate in health insurance that includes providing contraceptives (or else incur a penalty).”

In that same post we reported on an important new federal appellate decision which held that it would not conclude that “just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion.”

We now understand from an excellent article in the Charleston Gazette-Mail that this same issue may be developing in West Virginia in an entirely different context.

Caitlin Cook reports that the director of operations of a group of 20 Subway restaurants wrote to churches and congregations stating:  “Due to changing times, we are looking for good honest people. If you have anyone in your congregation in need of a job, or new career, please have them contact us at the address provided above. We are looking for sandwich artists, shift managers, assistant managers and supervisers. … We are a Christian based company and in need of Christian employees.”  10521014_s

Both Title VII and state law prohibit “any notice or advertisement” which indicates a preference in hiring based on race, color, religion, sex, or national origin.  However, the article noted correctly that “churches and religious nonprofit groups may consider religion when hiring,” and then concluded (as did the recent federal appeals court) that “Those exemptions would not seem to cover [this Subway group], which was established as a for-profit corporation in 1994, according to the Secretary of State’s Office.”

Irrespective of legality, local clerics interviewed were not particularly supportive of the company’s apparent preference for Christian employees.  One said that “at least the implication of the letter is only Christians are good, honest people. … It’s the exclusive nature of it.  Hopefully they’re recruiting, not just hiring.”

A Monsignor of Sacred Heart Co-Cathedral in Charleston said that “There are a lot of other non-Christians, Jews, Muslims and some immigrants that may be Sikhs, Hindus that are honest, hard-working faith-filled individuals.  I don’t know that you need to be a Christian to make a good Subway sandwich.”

Or a good falafel, bagel, or tandoori chicken.

 

 

We reacted with skepticism in an earlier post about a case reported last November 2nd questioning whether an owner’s religion can be imputed to a corporation, or that the “Patient Protection and Affordable Care Act (“ACA,” or “Obamacare”) violates either the Religious Freedom Restoration Act (known as “RFRA”) or the First Amendment.

There has been a split in court decisions, and we “anticipate[d] an ultimate decision from the Supreme Court.”  We are now a step closer to that day.  A federal appeals court in Philadelphia has just answered in the negative the important question:  “Whether a for-profit, secular corporation is able to engage in religious exercise under the Free Exercise Clause of the First Amendment and the RFRA?”

Can The Sincerely Held Religious Belief Of A Business Owner Be Imputed To The Business?

Since the passage of Obamacare, employers who claim that their religious beliefs prevent them from using, paying for, or supporting the use of contraception, have claimed that this religious claim should be imputed to their wholly-owned companies such that these companies should be exempt from having to provide or participate in health insurance that includes providing contraceptives (or else incur a penalty).

The Law Until Now 

There has been a serious split of authority —  on November 2nd, we reported that a second federal court (in Michigan) had enjoined the application of the ACA rule tat would have required a “secular, for-profit, family owned and operated corporation” owned by a practicing Catholic to provide employee health insurance that covers contraception.   And we also reported that an Oklahoma federal court issued a decision directly at odds with the Michigan one, and denied a similar injunction to for-profit, secular corporations owned by a family management trust whose trustees are practicing Christians.

The First Appellate Decision

In this first appellate decision on the issue, the Court dealt with a family which owns 100% of the voting shares of a for-profit corporation that manufactures wood cabinets and has 950 employees. “The Hahns practice the Mennonite religion.  According to their Amended Complaint, the Mennonite Church ‘teaches that taking of life which includes anything that terminates a fertilized embryo is intrinsic evil and a sin against God to which they are held accountable.’  …  the Hahns object to two drugs that must be provided by group health plans under the [ACA] Mandate that ‘may cause the demise of an already conceived but not yet attached human embryo.’ (…  These are ‘emergency contraception’ drugs such as Plan B (the ‘morning after pill’) and ella (the ‘week after pill’).”

Does Citizens United Afford A Corporation Religious Rights?

The Court, dealing with the (in?)famous Citizens United case, where the Supreme Court held that “the Government may not suppress political speech on the basis of the speaker‘s corporate identity,” found that “whether Citizens United is applicable to the Free Exercise Clause is a question of first impression” and “we must consider whether the Free Exercise Clause has historically protected corporations, or whether the ‘guarantee is ‘purely personal’ or is unavailable to Corporations’ based on the ‘nature, history, and purpose of [this] particular constitutional provision.’”

The Court held that “We will not draw the conclusion that, just because courts have recognized the free exercise rights of churches and other religious entities, it necessarily follows that for-profit, secular corporations can exercise religion.”  The Court stated that “we are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.  Such a total absence of caselaw takes on even greater significance when compared to the extensive list of Supreme Court cases addressing the free speech rights of corporations.”

The Dissent

In a 66-page dissent which called the ruling “deeply disappointing,” and “tragic,” the dissenting judge claimed that “one need not have looked past the first row of the gallery during the oral argument of this appeal, where the Hahns were seated and listening intently, to see the real human suffering occasioned by the government’s determination to either make the Hahns bury their religious scruples or watch while their business gets buried.”

Intending to soften the blow, especially in the face of the lengthy dissent, the majority stated that:

“our decision here is in no way intended to marginalize the Hahns’ commitment to the Mennonite faith. We accept that the Hahns sincerely believe that the termination of a fertilized embryo constitutes an ‘intrinsic evil and a sin against God to which they are held accountable’ …  and that it would be a sin to pay for or contribute to the use of contraceptives which may have such a result. We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself. A holding to the contrary—that a for-profit corporation can engage in religious exercise—would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners (emphasis added).”

Conclusion

This is an extremely important decision and one that may be the basis of either the majority or minority opinion when the Supreme Court ultimately weighs in.

 

 

 

In the landmark Hosanna-Tabor case decided earlier this year, the Supreme Court held that the First Amendment bars the government from interfering with the decision of a religious group to fire one of its ministers. What this means is that such a so-called “ministerial exception” exempts an employer from the application of the anti-discrimination laws,  and an employee deemed a minister has no recourse to Title VII, the ADA, the ADEA, etc.  Read our earlier discussion of the case.  

 

A federal appeals court which decided its first post-Hosanna-Tabor case has just held that a church music director who was fired could not sue under the ADEA or the ADA because of the “ministerial exception.”  The employee claimed that he was not a minister, was not ordained and lacked the education, training, and experience to be considered a minister, had purely-secular duties, and that “he merely played the piano at Mass and that his only responsibilities were keeping the books, running the sound system, and doing custodial work, none of which was religious in nature.”

 

 

 

The Church, on the other hand, contended that the music director “foster[s] the active participation of the ‘liturgical assembly’ in singing, and promoting the various musicians—choir members, psalmists, cantors, and organists—all of whom play instruments in service of the liturgy. Thus, the person who leads the music during Mass is an integral part of Mass and ‘a lay liturgical minister actively participating in the sacrament of the Eucharist.’”

 

 

 

The Court found for the Church, noting that Hosanna-Tabor sets “no rigid formula” for determining who is a minister and mandates a fact-intensive, totality-of-the-circumstances analysis.  Analyzing the facts, the Court held that the music director fell within the "ministerial exception" because “there is no genuine dispute that [he] played an integral role in the celebration of Mass and that by playing the piano during services, [he] furthered the mission of the church and helped convey its message to the congregants.”

 

 

Since finding a "ministerial exception" is a fact-intensive inquiry, it is hard to draw a conclusion as to the significance of this new decision.  Suffice it to say that it may mean that courts may very well bend over backwards to find such an exception, since the music director here had no indicia of being a minister.  The Court credited his piano playing at Mass as "further[ing] the mission of the church and help[ing] convey its message to the congregants.”  But even the janitor can be deemed to be furthering the mission of a church simply by keeping it clean, and even a lay secretary or clerk can be deemed to be helping convey a church message by typing and mailing church correspondence.   

 

 

Let’s see what other courts do.