Employment Law Daily En banc review denied in Ninth Circuit ministerial exception case allowing Catholic school teacher’s ADA claim
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Thursday, June 27, 2019

En banc review denied in Ninth Circuit ministerial exception case allowing Catholic school teacher’s ADA claim

By Lisa Milam, J.D. and Kathleen Kapusta, J.D.

The panel denied a petition for rehearing and then the full Ninth Circuit rejected en banc review, in an order that drew a dissent from Judge Nelson, joined by eight appellate judges.

The Ninth Circuit will not disturb its December 2018 panel decision holding that a Catholic grade school should not be shielded from a disability discrimination suit brought by a fifth grade teacher who was let go after being diagnosed with breast cancer and seeking time off for treatment. After the original panel denied the school’s petition for panel rehearing, the full Ninth Circuit rejected a motion for en banc rehearing. The circuit panel held 2-1 that to allow the school to invoke the First Amendment’s ministerial exception in this case would stretch the exception far too thin. That ruling stands, an outcome lamented by a dissenting Judge Nelson who, joined by eight judges, offered a lengthy discourse on the ministerial exception and traced its historical and jurisprudential underpinnings from the Founders to the U.S. Supreme Court’s holding in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, (Biel v. St. James School, June 25, 2019, denying en banc rehearing).

Catholic school teacher. Hired by the Catholic school in 2013 as a long-term substitute teacher, the employee became a full-time fifth grade teacher at the end of the year. Although she was Catholic, that was not a requirement for a teaching position. Her only training in Catholic pedagogy came from the school in the form of a single half-day conference where topics ranged from the incorporation of religious themes into lesson plans to techniques for teaching art classes.

The employee taught fifth graders all their academic subjects, including a standard religion curriculum she taught for about 30 minutes a day, four days a week, using a workbook on the Catholic faith prescribed by the school administration. She also joined students in twice daily student-led prayers and attended a school-wide monthly mass where she was charged with keeping her class quiet and orderly.

Pursuant to her contract, she was required to work within the school’s overriding commitment to church doctrines, laws, and norms and to “model, teach, and promote behavior in conformity to the teaching of the Roman Catholic Church.” The school’s faculty handbook required that teachers “participate in the Church’s mission” of providing “quality Catholic education to . . . students, educating them in academic areas and in . . . Catholic faith and values.” It further instructed teachers to follow not only archdiocesan curricular guidelines but also the state’s public school curricular requirements.

Discharged after breast cancer diagnosis. Six months after receiving a positive teaching evaluation, the employee was diagnosed with breast cancer. She told the school she needed to take time off for treatment and several weeks later, the school informed her that it would not renew her contract for the next academic year because her “classroom management” was “not strict” and that it was unfair to the students to have two different teachers during the school year. She filed an ADA suit asserting disability discrimination.

The district court granted summary judgment to the school, finding that the First Amendment’s ministerial exception to generally applicable employment laws barred her claims.

The panel decision. Reversing summary judgment, the Ninth Circuit panel held that at most, only one of the four Hosanna-Tabor considerations weighed in favor of the school and that no other federal appeals court has applied the First Amendment’s ministerial exception to a case that bears so little resemblance to Hosanna-Tabor. Declining the school’s invitation to be the first, the panel explained that while the First Amendment “insulates a religious organization’s ‘selection of those who will personify its beliefs,’” it does not provide carte blanche to disregard antidiscrimination laws when it comes to other employees who do not serve a leadership role in the faith.

Hosanna-Tabor. Applying Hosanna-Tabor’s four major considerations in determining who qualifies as a minister such that the ministerial exception applies, the appellate panel had found that the employee had none of the credentials, training, or ministerial background that the Lutheran teacher in the Supreme Court case possessed. Nor did the school hold her 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. Her “Grade 5 Teacher” title did not reflect ministerial training and her employment was at-will. Further, there was no record evidence indicating she considered herself a minister or presented herself as one to the community.

Panel dissent. Judge Fisher, a Third Circuit jurist sitting by designation, had issued a lengthy dissent from the panel decision (and recommended granting the petition for rehearing en banc). Fisher noted that the Catholic school educator had a distinctly religious purpose, that she expressly acknowledged this purpose in her contract, and that she had committed herself to performing her duties in accordance with the school’s “overriding commitment” to “develop and promote a Catholic School Faith Community within the philosophy of Catholic education.” To Fisher, the teacher was a minister.

“But the majority misses the point of the ministerial exception,” he argued, “which is to shield the relationship between a church and its ministers from the eyes of the court without requiring the church to provide a religious justification for an adverse employment decision.”

Dissent from denial of rehearing. “By declining to rehear this case en banc, our court embraces the narrowest construction of the First Amendment’s ‘ministerial exception’ and splits from the consensus of our sister circuits that the employee’s ministerial function should be the key focus,” wrote Judge Nelson, dissenting from the decision to deny rehearing.

“The panel majority’s approach conflicts with Hosanna-Tabor, decisions from our court and sister courts, decisions from state supreme courts, and First Amendment principles. And it poses grave consequences for religious minorities (collectively, a substantial plurality of religious adherents in this circuit) whose practices don’t perfectly resemble the Lutheran tradition at issue in Hosanna-Tabor.” (Notably, five different amici had urged the court to correct itself—”coalitions of religiously diverse organizations and law professors,” he added.).

As Nelson saw it, the panel majority’s test requires a religious organization to show that the employee in question “served a significant religious function” and the presence of at least one additional ‘consideration’ in order for the ministerial exception to apply. “But Hosanna-Tabor mandates no such requirement,” according to Nelson. “It did not establish a test or set any legal floor that must be met for the exception to apply. It held only that the exception exists, applies to ADA claims, and covered the teacher here.” In ruling to the contrary, the majority “embraced the narrowest reading of the ministerial exception and diverged from the function-focused approach taken by our court previously, our sister courts, and numerous state supreme courts.”

“Not once, not twice, but three times now in the last two years, we have departed from the plain direction of the Supreme Court and reversed our district courts’ faithful application of Supreme Court precedent,” Nelson wrote. “And in each successive case, we have excised the ministerial exception, slicing through constitutional muscle and now cutting deep into core constitutional bone.”

“This is precisely the case warranting en banc review.”

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