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Biel v. St. James School, No. 17-55180 (9th Cir. Dec. 17, 2018)

The Ninth Circuit, substantially parting with the reasoning of the Seventh, holds (2-1) that a fifth-grade parochial school teacher did not fall within the ministerial exception articulated in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).

Biel v. St. James School, No. 17-55180 (9th Cir. Dec. 17, 2018):

Ms. Biel sued the St. James Catholic School over her termination from teaching position, "after she told her employer that she had breast cancer and would need to miss work to undergo chemotherapy." The district court held that her ADA claim was barred by the First Amendment ministerial exception declared in Hosanna-Tabor.

While the school's contract, mission statement, and faculty handbook stress the school's role in providing a Catholic education, Ms. Biel's religious function was modest: teaching a standard religion course (two hours a week), participating in twice daily school prayers, and attending Mass with her class monthly. "There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited."

The Ninth Circuit holds (2-1) that Ms. Biel did not meet the standards set in Hosanna-Tabor. In that case:

"The [Supreme] Court focused on four major considerations to determine if the ministerial exception applied: (1) whether the employer held the employee out as a minister, (2) whether the employee's title reflected ministerial substance and training, (3) whether the employee held herself out as a minister, and (4) whether the employee's job duties included 'important religious functions.'"

The panel majority holds, with respect to the first element, that St. James did not "hold Biel out as a minister by suggesting to its community that she had special expertise in Church doctrine, values, or pedagogy beyond that of any practicing Catholic." St. James gave her the title "Grade 5 Teacher," bereft of any ministerial function Further, "nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community."

The panel majority recognizes that at least on the fourth element, "important religious functions," the school presented some evidence about Ms. Biel's religious duties. Yet this one element alone was not enough to carry the day. The teacher in Hosanna-Tabor lead prayers and religious services, in contrast to Ms. Biel's much smaller role.

While the Seventh Circuit had ruled in favor of the defendant school in a comparable case, Grussgott v. Milwaukee Jewish Day School, Inc., 882 F.3d 655 (7th Cir. 2018) - involving a Hebrew teacher's employment discrimination suit against a Jewish primary school - the panel majority does not follow that case here. "Even assuming Grussgott was correctly decided, which we are not sure it was," the plaintiff in Grussgott more closely resembled the situation in Hosanna-Tabor than Biel does. "In certification in a Jewish curricular program called Tal Am-a curriculum that involved integrating religious teachings into Hebrew lessons, as the Seventh Circuit noted in its analysis of [Grussgott]'s job title."

In dissent, visiting Third Circuit Judge Fisher would hold that the school established the defense as a matter of law. "Looking at each of the Hosanna-Tabor factors, and considering the evidence in its totality without adherence to a formulaic calculation, it appears that Biel was a minister, though perhaps not as obviously as the teacher in Hosanna-Tabor. However, the teacher in Hosanna-Tabor was within the Protestant Christian framework, and therefore the terminology of her employment very neatly fit within the ministerial exception. We must not make the mistake of tethering the exception too close to the Protestant Christian concept of ministers."

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