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Hiring and Firing in Religious Organizations: The Ministerial Exception

Updated: Sep 8

Written by Gordon Behr


On July 8th the Supreme Court broadened the ministerial exception in the Our Lady of Guadalupe School v. Morrissey-Berru case. Two employment discrimination claims from two Catholic elementary school teachers had their cases combined for the Court to decide if the teachers could bring a claim against the religious schools who did not renew their contracts. The court held they could not bring suit, and further defined how the ministerial exception will apply to religious schools and other religious organizations in the future.



What is the Ministerial Exception?

The ministerial exception was first developed by the lower courts who found a first amendment right for churches to be protected in employment decisions. The foundation for this exception was based in the Constitutional principle of church autonomy. Justice Alito in the majority opinion of the July 8th case explained the exception, “Religion Clauses of the 1st Amendment protect the right of churches and other religious institutions to decide matters of faith and doctrine without government intrusion.” The exception binds courts to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.



How to Use the Ministerial Exception in my Religious Organization?

In the majority opinion of the Our Lady of Guadalupe case, Justice Alito explained how the court determines if the ministerial exception applies. They must look at what the employee in question does for the organization. Justice Alito gave factors that the court sees as demonstrating an employee fits in the exception:

  • Abundant record that employees perform vital religious duties.

  • Educating, promoting, or developing religion is at the core of the organization’s mission.

  • Employee agreements and faculty handbooks specify part of the job is to help carry the religious organization’s core mission.


Following these factors ensures that a religious school or organization can correctly assert a right to the ministerial exception. Here are actions a religious organization should take to assert a right to the ministerial exception:


1. A religious organization should have all employee agreements and faculty handbooks state:

  • The religious organization’s core mission includes the promotion, development, or education of religion.

  • Employees of the organization have a vital duty to aid in the promotion and development of the organization’s core mission.

  • Employee hiring and firing would be consistent with the organization’s mission and values.

2. It would also be helpful to list in the employee agreements and faculty handbook each employee’s specific duties and responsibilities that are religious.



How Will the Ministerial Exception Apply to my Religious Organization?

Religious Schools:

In the Our Lady of Guadalupe case, the court asserts the exception applies to teachers of religious schools, “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” Justice Alito and the majority deem the responsibility given to religious educators so crucial to the mission of religious schools that it cannot be interfered with by the courts. This means religious schools will be free to hire and fire under their own discretion, and not be subjected to employment rules found in Title VII of the 1964 Civil Rights Act and other statutes. There has been some debate as to whether the ministerial exception will apply to religious high school teachers who only teach one secular subject. Until that question reaches the Supreme Court, following the steps given above is still the best protection of the ministerial exception for all religious schools.


Other Religious Organizations:

Although the Our Lady of Guadalupe case was decided on claims from two Catholic elementary school teachers, Justice Alito argues the same factors should be used with employees from all kinds of religious organizations. In her dissent, Justice Sotomayor listed off how many employees of religious organizations could fall under the ministerial exception, “Countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions.” The court did not limit this exception to churches and religious schools.



Conclusion

There are still disagreements about how broadly the Ministerial Exception will be understood in the future, but the majority in the Our Lady of Guadalupe case has made the protection more available for religious organizations. Contact an attorney from Mauck & Baker soon to get help revising your employee handbook to include protections contained in the ministerial exception.


This article is for general purposes only and not as legal advice. A tailored review and analysis by an attorney is strongly recommended for any business or organization. You can contact a Mauck & Baker attorney at (312) 726-1243.

1 North LaSalle St.

Suite 600

Chicago, IL 60602

info@mauckbaker.com

312-726-1243

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