As the controversial recent bills that were proposed but ultimately not enacted in Arizona and several other states indicate, there is a passionate debate ongoing between civil rights advocates and the religious freedom movement. Another example of this conflict is the “ministerial exception,” which rests at the intersection between federal employment discrimination laws, on one hand, and the Religion Clauses of the First Amendment on the other.
Under the ministerial exception, claims of employment discrimination brought by ministers against their religious organizations are precluded. Because the term “minister” is not defined by, or contained in, the various statutes, however, courts have been left to fill the (understandably confusing) void. The Western District of Pennsylvania was recently called upon to further clarify how to resolve this tension in Hough v. Roman Catholic Diocese of Erie, No. 1:12-cv-00253 (W.D. Pa. Mar. 4, 2014). Before examining the Hough case, however, a brief bit of background may be useful.
The Supreme Court recently considered the scope of the “ministerial exception” for the first time in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, ___ U.S. ___, 132 S. Ct. 694 (2012). In Hosanna-Tabor, the Court unanimously agreed, on the facts of the case, that a “called” teacher who had undergone “a significant degree of religious training” by completing eight college-level courses in biblical interpretation, church doctrine, and the ministry of the Lutheran teacher, who had taught religious doctrine to her students four days a week and led them in prayer three times a day, who was issued a “diploma of vocation” and given the title “Minister of Religion, Commissioned,” and who both held herself out and was held out by the church as a minister, was a ministerial employee. Consequently, the teacher, who suffered from narcolepsy, could not sue the church under the ADA.
The Hosanna-Tabor Court, however, declined to set forth “a rigid formula” for who qualifies as a ministerial employee. Instead, it explained, the analysis rests on the totality of the circumstances. What is clear, however, is that the ministerial exception is an affirmative defense; that is, the religious organization bears the burden of demonstrating that a given employee is covered by the ministerial exception. In his concurrence, Justice Thomas alone would have deferred to the church and held that the exception applied based solely on the church’s “sincere determination” that its employee was ministerial.
In Hough, three teachers of the Notre Dame School – all of whom are female and over 50 years old – were not rehired by their school system after Notre Dame was consolidated with two other regional Catholic schools. In response to their complaint under the Age Discrimination in Employment Act (ADEA), the school system moved for summary judgment before discovery had occurred, claiming that the suit was barred under the ministerial exception.
The Western District of Pennsylvania disagreed. Following the lead of the Southern District of Ohio in Dias v. Archdiocese of Cincinnati, No. 1:11-cv-00251 (S.D. Ohio Mar. 29, 2012), the Hough Court acknowledged the affidavit submitted by the Diocese, but was not persuaded that the “because I said so” nature of the affidavit was sufficient for the exception to apply as a matter of law. According to the district court, there must be “a well-developed record with evidence of [a given plaintiff’s] job duties and functions” in order for courts to properly and independently analyze whether a given employee is, in fact, a minister. Because there were no details yet provided about each teacher’s job responsibilities, the court was unable to independently conclude that they were, in fact, covered by the exception. The case will, therefore, proceed.
Like other employers, religious organizations would be well-served, like other employers, by making a habit (excuse the pun) of maintaining job descriptions and monitoring the roles and functions actually carried out by their employers. If the Hough and Dias cases are any indication, it may well be necessary to spend the time and resources assembling specific evidence in order to persuade secular courts that a particular individual is a minister.