Earlier this term, the Supreme Court clarified that employment decisions based on “[a]n individual’s homosexuality or transgender status” are discrimination “based in part on sex” and in violation of Title VII of the Civil Rights Act. Bostock v. Clayton County, Georgia, 590 U.S. __ (2020). In writing the majority opinion, Justice Gorsuch clarified that the opinion did not go to the merits of certain defenses – such as the “ministerial exception” or Religious Freedom Restoration Act – that might apply, and he indicated that the usual defenses would continue to apply to claims of sexual orientation or gender identity discrimination.
As if on cue (or, more likely, as if Justice Gorsuch knew the other decisions to be published this term), the Supreme Court has expanded the “ministerial exception” to the Civil Rights Act to hold that any teacher whose duties include religious education cannot bring a claim against a religious school for employment discrimination. Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. __ (2020).
The ministerial exception developed under the First Amendment and was stated explicitly by the Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC¸ 565 U.S. 171 (2012). The First Amendment protects the right of churches and religious institutions to decide matters “of faith and doctrine” without government interference. Hosanna-Tabor, 565 U.S. at 186. Such matters include “matters of church government” such as deciding who will fill a role involved with transmitting the faith. In Hosanna-Tabor, the Court held that the exception applied to a teacher at a religious school who held the title of minister (a “called” teacher vs. a “lay” teacher), who had received significant religious training and a formal commission, who held herself out as a minister (including by claiming certain tax benefits) and whose job duties “reflected a role in conveying the Church’s message and carrying out its mission.” Id. at 191-92.
Although the doctrine has often been invoked regarding employment decisions based on morality or religious practices, Morrissey-Berru usefully illustrates the rule’s broad reach. Neither of the teachers was allegedly terminated for reasons relating to “immoral” conduct – one teacher alleged that she was discharged because she requested a leave of absence to obtain breast cancer treatment, while the other alleged she was demoted so that the school could replace her with a younger teacher. Nevertheless, where it applies, the ministerial exception is absolute.
The Court found the teachers to be ministers despite their lack of clerical titles, limited formal religious education or training, and formulaic instruction based on standardized textbooks. The Court concluded that because the teachers’ areas of instruction and duties involved matters of religion, the ministerial exception applied.
It will be interesting to see how Morrissey-Berru affects cases in the lower courts, given the Court’s broad language regarding employees’ job duties. It is clear from the decision that any teacher who specifically teaches religion would be considered a minister. But religious schools might require a science teacher, for example, to teach only principles that are consistent with church doctrine. Or a school might require custodians to attend and participate in in-school religious services, to set an example for the students. At least arguably, these job duties would bring those employees within the exception as well.
Taken together, Morrissey-Berru and Bostock are likely best understood as extensions of existing principles under the Civil Rights Act caselaw, and employers now operate under a regime much like what existed before both decisions. When uncertainty arises, however, employers can continue to rely on experienced employment counsel to help them stay up to date on legal developments and make the decisions that are best for their businesses.