Heather Bussing, Editor, HR Examiner Editorial Advisory BoardHeather Bussing is an employment attorney and is the Editorial Advisory Board editor at HR Examiner. Full Bio »

What you should know about religious entities and discrimination laws.

The United States Supreme Court recently held that a church can fire a teacher/minister for her disability in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC 565 U.S. ____ (January 11, 1012.)

What the Case Was About

Cheryl Perch starting teaching at a small parochial elementary school in Michigan.  She was originally hired as a “lay teacher.”

The school classified its teachers as either ‘Lay” or “Called.” Lay teachers were not required to be Lutheran, and were hired by the school board for a one year term.

“Called” teachers had to complete training at a Lutheran college, take courses in specific theology, and pass an oral exam by the school’s faculty. The teacher then became a “Minster of Religion, Commissioned,” and was essentially tenured.

Lay teachers and Called teachers had exactly the same duties–teaching. Although, Called teachers also led a school wide chapel service once or twice a year.

After teaching four years, Perch went on disability for narcolepsy. She received treatment and was ready to return to work. The school expressed concerns about whether she was physically able to come back. It had already hired a Lay teacher to replace her.

At a meeting to discuss Perch’s employment, school administrators told the congregation that Perch was not capable of returning. They offered her a “peaceful release” of continued health insurance in exchange for her resignation.

Perch refused and showed up at work. The church sent her home, then fired her for “insubordination and disruptive behavior,” and for “threatening to take legal action.”

There Was Disability Discrimination and Retaliation

Let’s recap.  A tenured teacher goes on disability leave and is cleared to return to work. But the employer had already replaced her. When she asserts her rights, she is fired.

Looks like a disability and retaliation claim to me.

The ADA allows religious entities to give preference in employment based on religion and allows a religious entity to require employees “to conform to the religious tenets” of the organization. (42 U.S.C. sections 12113(d).) Although neither of these exceptions applies to retaliation claims.

This makes sense.  Religious organizations who teach religion would prefer to have teachers who believe what they are teaching.

Yet, Perch was not fired for her religious tenets or for failing to teach her employer’s religion.  She was fired because of her disability and insistence on coming back to work after treatment. This does not fall within the ADA exceptions.

The First Amendment Trumps Discrimination Laws for Ministers.

The Supreme Court never looked whether there was disability discrimination or retaliation. Instead, the Court focused on Perch’s title as a “minister” and asked  whether the government could interfere with a religious institution’s ability to select its ministers.

Okay. The government should not be able to tell a church who to appoint as a minister.  That is clear under the First Amendment that prohibits the government from the “establishment of religion, or prohibiting the free exercise thereof.” That’s also covered in the ADA exceptions that allow churches to discriminate based on religion.

How did the Court get from churches can discriminate based on religion to churches are exempt from all discrimination laws?

After an exhaustive discussion of the tension between Church and State beginning with the Magna Carta, the Court decided that churches should be able to pick whomever they want in “conveying the Church’s message and carrying out its mission.”  Under the First Amendment, churches have that freedom, even if it’s decision is based on discriminatory factors that are unrelated to the religious beliefs.

So in hiring and firing ministers, the First Amendment trumps ALL discrimination laws.

Was This Really About a Minister?

The Court then looked at whether Perch was a minister.  They found she was because she taught religion, led students in prayer, and took students to chapel. Of course, these were the same duties Lay teachers had.

In addition, Perch had to qualify with rigorous religious training; she was designated as a minister by the Church; she held herself out as a minister; and she deducted a portion of her home as a “parsonage.”  (I guess the word of God and the word of the IRS both hold significant weight in these matters.)

Before the case reached the Supremes, the Court of Appeal decided that Perch was not a “minister.” I agree. There were no significant differences between what Called and Lay teachers did. She was also not in a leadership role in the church. They replaced her with a Lay teacher. She was a teacher with advanced studies in her subject.

However, I do understand that the minute a court gets too specific about the role or duties required to be a “minister,” it begins to tread on church’s territory. And that itself, would violate the First Amendment.

What You Should Know About Religious Entities and Discrimination Laws.

  • Religious organizations can discriminate based on religious beliefs in hiring and firing employees. This is true under both federal and state laws because it is based on the First Amendment of the US Constitution.
  • Under the Hosanna-Tabor case, religious organizations have wide discretion in hiring and firing decisions when the person is a “minister” or the equivalent role for that religion.
  • For non-leadership roles, religious organizations are still generally subject to state and federal laws that prohibit discrimination in employment, but can still discriminate based on religion.
  • There are also special laws and exceptions that apply to religious organizations that provide health care including hospitals and clinics. Generally, they are permitted to discriminate based on religion and religious beliefs, for example regarding abortion or birth control.
  • Since it is difficult to make clear definitions about what beliefs, practices, and roles are exempt from discrimination laws, the cases can be confusing. For example, the EEOC has taken the position that religious organizations cannot pay women less than men even if their religious beliefs sanction it.
  • The Supreme Court was also clear in the Hosanna-Tabor case that the ministerial exception would not bar criminal prosecutions for actions that are crimes, and would not bar actions for breach of contract or other tortious conduct by the employer.

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