The “Ministerial Exception,” a First Amendment Free Exercise rule implied by federal courts into civil rights laws, gets another run around the block by the Sixth Circuit, which holds that a grade school teacher at a religious school who taught primarily secular topics falls outside the exception and may pursue her claim under the ADA.
EEOC v. Hosanna-Tabor Evangelical Lutheran Church and school, No. 09-1134 (6th Cir. Mar. 9, 2010): The defendant employer offered an avowedly “Christ-centered education” intended (according to its website) to help parents by “reinforcing bible principals [sic] and standards.” (I write “offered” because the school is apparently now closed, and merged with another program, as of last year.) “In all, activities devoted to religion consumed approximately forty-five minutes of the seven hour school day.”
The employee, Cheryl Perich, taught third and fourth grade classes. After passing out during a church golf outing, she was diagnosed with narcolepsy and took an extended leave of absence. She was medically cleared to return to work, but among the administration, there was “concern that Perich’s condition would jeopardize the safety of the students in her care.” When Perich insisted to her principal “that she would assert her legal rights against discrimination if they were unable to reach a compromise,” she was charged with “insubordination and disruptive behavior” and eventually fired. The EEOC brought suit on the basis of discrimination and retaliation under the ADA. The district court granted dismissal on subject-matter jurisdiction grounds (Rule 12(b)(1)).
The panel reverses. It notes that the ADA has a religious exemption in place, which allows religious entities to give “preference in employment to individuals of a particular religion” and to “require that all applicants and employees conform to the religious tenets of such organization.” 42 U.S.C. § 12113(d). This section did not apply to the present case because the claim did not involve a partiality for employees of the same faith. But the First Amendment, as noted, implies a safe harbor for places of worship to make employment decisions about staff free from judicial intrusion. “For the ministerial exception to bar an employment discrimination claim, two factors must be present: (1) the employer must be a religious institution, and (2) the employee must be a ministerial employee.”
The panel finds that the defendant failed to make out a case for factor (2). “The overwhelming majority of courts that have considered the issue have held that parochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception.” Reviewing her primary duties, the panel finds that “the district court erred in its legal conclusion classifying Perich as a ministerial employee. Perich spent approximately six hours and fifteen minutes of her seven hour day teaching secular subjects, using secular textbooks, without incorporating religion into the secular material.”
The panel finds that the district court erred in taking too literally the church’s bestowal of a “ministry” on its teachers. “In finding that Perich was a ministerial employee, the district court relied largely on the fact that Hosanna-Tabor gave Perich the title of the commissioned minister and held her out to the world as a minister by bestowing this title upon her. However, the title of the commissioned minister does not transform the primary duties of these called teachers from secular in nature to religious in nature.”
The employer also sought to challenge the claims as an intrusion on the church’s governance. The panel holds:
“In the instant case, Hosanna-Tabor has attempted to reframe the underlying dispute from the question of whether Hosanna-Tabor fired Perich in violation of the ADA to the question of whether Perich violated church doctrine by not engaging in internal dispute resolution. However, contrary to Hosanna-Tabor’s assertions, Perich’s claim would not require the court to analyze any church doctrine; rather a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich.”
Concurring, Judge Helene White notes that while courts are divided over the issue of whether teachers might be considered “religious” within the scope of the exception, “Tipping the scale against the ministerial exception in this case is that, as the majority points out, there is evidence here that the school itself did not envision its teachers as religious leaders, or as occupying ‘ministerial’ roles. Hosanna-Tabor’s teachers are not required to be called or even Lutheran to teach or to lead daily religious activities. The fact that the duties of the contract teachers are the same as the duties of the called teachers is telling.”