February 2020 Church & State Magazine - February 2020

You're Fired! (And There's Nothing You Can Do About It): Supreme Court To Decide If Secular Employees At Religious Schools Have Any Protections Against Job Dismissals

  Liz Hayes

Kristen Biel was just finishing her first year of teaching fifth grade at St. James School when she was diagnosed with breast cancer in April 2014. The Catholic school outside Los Angeles terminated her contract two months later, just after she went on medical leave to be­gin chemotherapy treatment.

Agnes Morrissey-Berru had years of experience when she was fired from her teaching job in 2015 by Our Lady of Guadalupe School, a nearby Catholic school also operated by the Arch­diocese of Los Angeles. Morrissey-Berru said her age – she was 65 – was the reason she was let go after teaching fifth and sixth grades there for 16 years.

Morrissey-Berru filed a federal age-discrimination lawsuit against Our Lady of Guadalupe School. Biel claimed disability discrimination in her federal lawsuit against St. James School.

The schools claimed the women were let go for performance reasons, but in their petitions to the U.S. Sup­reme Court, the schools say the reasons for the firings don’t really matter. The schools, represented by the Religious Right legal group Becket Fund for Religious Liberty, argue they are exempt from the teachers’ discrimination claims because the teachers count as ministers and the schools, therefore, have unfettered discretion to fire them.

This spring, the U.S. Supreme Court will hear these two cases – St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru – and decide whether the “ministerial exception” to anti-discrimination laws applies to either teacher’s case.

Following the rise of civil rights legislation in the 1960s and ’70s that increasingly prohibited discrimination on the basis of religion, sex, race and other characteristics, courts crafted the “ministerial exception” to protect houses of worship from being forced to employ faith leaders who didn’t fit their theology. Otherwise, a synagogue seeking a rabbi could be accused of religious discrimination if it turned away a non-Jewish applicant, or a Roman Catholic church could be accused of sex discrimination for refusing to hire a woman as a priest.

The ministerial exception was meant to protect the First Amendment rights of faith communities to choose their religious leaders. But religious organizations have tried to push the envelope on who is covered by the exception, and for what reasons.

Americans United voiced concerns about broad interpretations of who is a religious leader and why he or she can be fired in the U.S. Supreme Court’s first case (and only case until now) to consider the ministerial exception – Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC), which was decided in 2012.

‘[A]lthough the ministerial exception serves important religious-liberty interests, it should be applied no more broadly than necessary to address the constitutional concerns that underlie it. These concerns call for the exception to apply only when the adverse employment action at issue was religiously motivated. Moreover, application of the ministerial exception to immunize employment-related conduct unrelated to religion – merely because the affected employee’s duties were primarily religious – would undermine the enforcement of important nondiscrimination laws.’ — AU legal brief

That case began when Cheryl Per­ich of Michigan filed an EEOC disability  discrimination claim against the school. Perich had taken a medical leave of absence to seek treatment for narcolepsy, a chronic sleeping disorder. After she began taking medication that treated the condition, she tried to return to work several months later – but the school refused to let her come back.

Hosanna-Tabor, a conservative Luth­eran Church – Missouri Synod con­gregation, claimed the ministerial exception gave it the right to fire Perich. And in a unanimous decision written by Chief Justice John G. Roberts, the high court agreed.

“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,” Roberts wrote. “When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”

The court determined that several details of Perich’s employment led them to consider her a “minister” for the purposes of the exception: After she was hired, she went through extensive religious training to gain the special designation of a “called” teacher with additional religious duties. It took her more than six years of training, including eight college-level courses in subjects including biblical interpretation, church doctrine and the ministry of the Lutheran teacher.

The school presented her as a minister – at the time of her termination, her title was “Minister of Religion, Commissioned.”

In addition to secular subjects, Perich taught a religion class four days a week, led the students in prayer and devotional exercises each day and attended a weekly school-wide chapel service, which she led about twice a year.

She presented herself as a minister, including by claiming a special housing allowance on her taxes that was available only to people employed “in the exercise of the ministry.”

“In light of these considerations – the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church – we conclude that Perich was a minister covered by the ministerial exception,” Roberts wrote.

The court was not particularly moved by the argument that the ministerial exception should not apply to Perich’s case because she was not fired for a religious reason (although the school disputed this). It was an argument made by the EEOC and Per­ich, as well as by Americans Uni­ted in a friend-of-the-court brief that was joined by four religious freedom advocacy organizations.

“[A]lthough the ministerial exception serves important religious-liberty interests, it should be applied no more broadly than necessary to address the constitutional concerns that underlie it,” AU wrote in its brief. “These concerns call for the exception to apply only when the adverse employment action at issue was religiously motivated. Moreover, application of the ministerial exception to immunize employment-related conduct unrelated to religion – merely because the affected employee’s duties were primarily religious – would undermine the enforcement of important nondiscrimination laws.

“Thus, even if the Court were to conclude that Ms. Perich was a ministerial employee, the ministerial exception should protect [the school] only if the challenged employment decision arose from religious concerns – rather than from secular animus or retaliation,” the brief continued. “Here, the record contains ample evidence that Ms. Perich’s termination was motivated by factors unrelated to … religious beliefs, doctrine, or mission.”

But the court was not convinced: “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful – a matter ‘strictly ecclesiastical,’ – is the church’s alone.”

The court also acknowledged concerns that the ministerial exception will increasingly be interpreted to allow broad employment discrimination.

“The EEOC and Perich foresee a parade of horribles that will follow our recognition of a ministerial exception to employment discrimination suits,” Roberts wrote. “According to the EEOC and Perich, such an exception could protect religious organizations from liability for retaliating against employees for reporting criminal misconduct or for testifying before a grand jury or in a criminal trial. What is more, the EEOC contends, the logic of the exception would confer on religious employers ‘unfettered discretion’ to violate employment laws by, for example, hiring children or aliens not authorized to work in the United States.”

Indeed, a few years after this case was decided, two Religious Right organizations put out a manual advising houses of worship and religious organizations to incorporate at least a small amount of religious duties into the job descriptions of as many employees as possible so they’d be able to take advantage of the ministerial exception and ignore antidiscrimination laws.

As reported in 2015 by Ian Millhiser, a Vox reporter who worked for ThinkProgress at the time, the manual was written by Alliance Defending Freedom and the Southern Baptist Convention’s Ethics and Religious Liberty Commission. Titled “Protecting Your Ministry From Sexual Orientation [&] Gender Identity Lawsuits,” the manual primarily focused on how to deny the civil rights of LGBTQ people. But it also offered general advice on avoiding employment-discrimination lawsuits.

“When feasible, a religious organization should assign its employees duties that involve ministerial, teaching, or other spiritual qualifications – duties that directly further the religious mission,” the manual states. “For example, if a church receptionist answers the phone, the job description might detail how the receptionist is required to answer basic questions about the church’s faith, provide religious resources, or pray with callers. Consider requiring all employees to participate in devotional or prayer time, or to even lead these on occasion.

“Employees with some duties usually performed by (or associated with) clergy are more likely to be viewed as ‘minister-like’ by the courts,” the manual continues. “Consequently, courts are more likely to apply the ministerial exception to employment law claims based on alleged discrimination. As noted above, it is important to bear in mind that the term ‘minister’ applies not only to the head of a religious congregation, such as a pastor or priest, but also to any employee charged with ministering, teaching, or communicating beliefs.”

Millhiser summarized: “In essence, the manual advises that an employer can take a janitor, require them to lead the staff in prayer every so often, and POOF! the janitor is now a ‘minister’ and the employer is free to fire that janitor because they are black, because they are gay, or because they are a woman.”

These are exactly the fears the EEOC, Americans United and others put forth when Hosanna-Tabor was argued.

Roberts indicated that the court’s opinion in Hosanna-Tabor was not creating a strict test for the ministerial exception, and that they were proceeding cautiously with their first case regarding the exception.

“We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote. “It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”

He also wrote: “The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”

Those circumstances have now arisen, and the court must again address the ministerial exception a mere eight years after Hosanna-Tabor was decided.

Attorneys for Biel and Morrissey-Berru have pointed out in court documents why the women’s jobs were less religiously involved than Perich’s to show that the 9th U.S. Circuit Court of Appeals was correct when it ruled the ministerial exception didn’t apply to either woman’s discrimination case.

Neither Biel nor Morrissey-Berru presented herself as a minister, nor did their schools. Biel’s only religious training came during a one-day conference after she was hired, during which she was given advice on how to incorporate God into her lessons.

Morrissey-Berru, who is not a practicing Catholic, had no religious training during her first 13 years of teaching at Our Lady of Guadalupe. In 2012,  she was required to take a course on the history of the Catholic Church.

The only similarity to the criteria used to designate Perich as a minister is that both Biel and Morrissey-Berru had some religious-teaching responsibilities. Morrissey-Berru was required to incorporate Catholic values and teachings into her curriculum, lead her students in daily prayer, teach a religion class, plan the liturgy for a monthly Mass, and direct and produce a student performance during the school’s Easter celebration every year.

Biel’s religious-instruction duties were limited to teaching religion to her students for a total of about two hours per week, which entailed reading and answering questions from a pre-selected workbook, and accompanying her students to Mass once a month in the school’s multi-purpose room (she did not lead the service; her role was to keep children quiet and in their seats).

Attorneys for Biel and Morrissey-Ber­ru have argued that the women’s discrimination lawsuits should be allowed to continue because the women are not ministers and the ministerial exception should not apply: “Hosanna-Tabor did not give religious organizations a green light to engage in unlawful discrimination against its other employees who hold no leadership role in the faith.”

But court watchers are not hopeful that the Supreme Court will rule in a way that protects the rights of these workers.

“There is little doubt that SCOTUS will use Biel and Morrissey-Berru to extend the ministerial exception well beyond Hosanna-Tabor,” wrote Mark Joseph Stern for Slate magazine in December 2019, shortly after the court agreed to hear the cases. “The Sup­reme Court’s conservatives are extremely protective of the religious liberty of Christians, advocating for ever-broader rulings to grant churches new consti­tutional rights.”

Regardless of the court’s decision, it will be too late to help Kristen Biel. She passed away last June, five years after her battles with breast cancer and St. Joseph School began. Her husband, Darryl Biel, continues the fight against her employer on her behalf.             

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