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If you’re a member of a protected class, you probably shouldn’t work for a religious institution.

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al., ___ U.S.___ (2012). Hosanna-Tabor Evangelical Lutheran Church and School employs two types of teachers, which Hosanna designates as “called” teachers and “lay” teachers. A called teacher must complete training that includes theological study, and upon completion of his or her training is designated a “Minister of Religion, Commissioned.” Lay teachers, on the other hand, are not even required to be Lutheran.

Cheryl Perich was asked to become a called teacher at Hosanna and completed the required course of study. Ms. Perich taught secular subjects as well as a religion class, and she led her students in daily prayer. She also accompanied her students to a weekly chapel service and led the chapel service about twice a year.

Ms. Perich was diagnosed with narcolepsy and took disability leave for much of the 2004–2005 school year. In January 2005 she notified the school principal that she would be able to report to work in February, but rather than welcoming her, Hosanna instead asked her to resign. Perich refused to resign, threatened to assert her legal rights, and was terminated.

Ms. Perich filed a charge with the Equal Employment Oportunity Commission (“EEOC”) claiming that her termination was in violation of the Americans with Disabilities Act. The EEOC brought suit on her behalf. Hosanna argued that the suit was barred by the First Amendment’s Establishment and Free Exercise Clauses, also known as the Religion Clauses, which together are interpreted to prohibit a court’s interference with the employment relationship between religious institutions and their ministers. This prohibition is called the “ministerial exception.” (For more on the ministerial exception, see the author’s Note for the Washington and Lee Journal of Civil Rights and Social Justice, here.) The District Court agreed with Hosanna and granted summary judgment in its favor. The Sixth Circuit Court of Appeals vacated the District Court’s decision and sent the case back to the District Court for reconsideration, concluding that Ms. Perich did not qualify as a “minister” under the ministerial exemption. Hosanna appealed the Sixth Circuit’s decision and the Supreme Court of the United States agreed to hear the case.

The ministerial exception is grounded in the judicial system’s hesitance to interfere with the employment decisions of religious institutions. For example, if a woman applied to be a priest in a Catholic church and the church refused to hire her because of her sex, courts would not interfere with the church’s decision. Importantly, the Religion Clauses and the derived “ministerial” exception prohibit that interference not because the decision was based on church doctrine—that women are prohibited from being priests—but instead because it was an employment decision made by a religious institution concerning one of its ministers. Any employment decision regarding a minister is outside the review of a court.

This issue becomes especially complicated when the “minister” has many duties outside of direct ministering, such as the case with teachers like Ms. Perich.

In vacating the decision of the Sixth Circuit, the unanimous Supreme Court recognized the existence of the ministerial exception, which it had never done before, and held that the ministerial exception bars an employment discrimination suit brought on behalf of a minister who challenges the church’s decision to fire her. However, the Court failed to adopt a test or formula for deciding whether an employee qualifies as a minister. Previous courts used the “primary duties test,” which led to inconsistent results. The Supreme Court did not mention any test, instead stating that it was persuaded by Ms. Perich’s formal title given to her by the church, the substance reflected in the title, her own use of that title, and the important religious functions she performed at the church.

The Supreme Court’s decision confirms that the ministerial exception exists, but the lower courts had been applying the exception for years. The problem with the exception lies in determining its boundaries. Ms. Perich was clearly a minister who had undertaken religious training and was formally commissioned by the church to serve as a religious leader. Other cases are not so clear. For example, in Alicea-Hernandez v. Catholic Bishop of Chicago, a church press secretary had not received any special training and was not called a minister until after she filed a lawsuit. In that case the court, deciding in favor of the employer, stated that “in determining whether an employee is considered a minister for the purposes of applying this exception, we do not look to ordination but instead to the function of the position.”  Inapposite to that case is Patsakis v. Greek Orthodox Archdiocese of America, where the court followed the “primary duties” test, examined the job duties of the registrar and administrative vicar for the diocese and determined that she was not a minister.

In Ms. Perich’s case, the Supreme Court did not give much guidance on how to determine whether an employee is inside or outside the exception. Regardless, this case is a signal to religious institutions that formally designating an employee to be a minister—and perhaps even instituting some religious training—can prevent a lawsuit before it arises.

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