SUPREME COURT HEARS ORAL ARGUMENTS ON MINISTERIAL EXEMPTION IN ADA & RETALIATION CASE

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. At issue is the definition of “minister.” The oral arguments were on 10/5/11 and may be viewed at http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-553.pdf.

The facts of the case are that Cheryl Perich, a teacher, was diagnosed with narcolepsy and given a medical leave of absence with the promise that her job would be held open. However, Hosanna-Tabor ultimately denied Perich’s request to return to work and Perich threatened to sue. There is no doubt that Hosanna-Tabor fired Perich for threatening to sue (they called it “insubordination”), and that there was no “flexible interaction” with respect to reasonable accommodations as required under the ADA. Thus, Perich would be a clear winner on both ADA and retaliation charges if her employer was a public school. The problem is she worked for a Church school.

Generally, churches and church-affiliated institutions are entitled to exemptions. For example, a church may discriminate for any reason for the position of minister (i.e., the “ministerial exception”), and may discriminate based on religion for any non-minister position. What it can’t do is discriminate based on factors other than religion (e.g. race, sex, age or disability) for non-minister positions. Therefore, the key question in this case is whether Perich was a minister. Clearly, there is no problem assessing the ministerial exception for Priests, Rabbis and the like. However, as this case illustrates, it’s not always that clear for other types of positions.

In the present case, Hosanna-Tabor had two different teaching positions: (1) “lay” or “contract” teachers and (2) “called” teachers. The lay teachers were clearly non-ministers by Hosanna-Tabor’s definition, but not so the called teachers. Called teachers had to complete colloquy classes and receive a certificate of admission into the teaching ministry. Once admitted, called teachers received the title of “commissioned minister.” The problem in this case was, with some minor exceptions, Perich’s duties mimicked those of the lay teachers, as she taught mainly secular courses (e.g. math, language arts, social studies, science, gym, art, and music).

The case can be made that the justices were tough on both sides during oral arguments. They induced Hosanna-Tabor’s attorney to state that there two ways to qualify as a minister: (1) to be declared a minister irrespective of what the job description is and (2) to teach primarily religious courses, even in the absence of the title of minister. The justices also drilled the EEOC’s attorney on grounds that the EEOC was arguing that the exemption in this case is not warranted based on the 1st Amendment’s freedom of association, whereas the justices believed the more appropriate route was the Establishment Clause of the 1st Amendment as it applies to entanglement between church and state.

One thing is clear –the ministerial exemption has not been applied in prior lower court cases in which teachers have taught secular courses in religious schools. Thus, in my opinion, the issue here boils down to whether a church can “ordain” a minister who, in effect, has no ministerial duties. The district court granted summary judgment to Hosanna-Tabor and the 6th Circuit reversed. A Supreme Court decision is likely sometime in June 2012.

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