Addressing for the first time the ministerial exception in light of the Supreme Court’s 2012 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC decision, the Seventh Circuit found a Jewish day school teacher’s integral role in teaching her students about Judaism and, importantly, the school’s motivation in hiring her, demonstrated that her role furthered the school’s religions mission. Concluding that she fell under the ministerial exception as a matter of law, the appeals court affirmed summary judgment against her disability discrimination claims (Grussgott v. Milwaukee Jewish Day School, Inc., February 13, 2018, per curiam).
Hired for her extensive experience teaching Judaism, the teacher taught primary school students Jewish Studies and Hebrew—closely interlinked classes—at a Jewish day school. She also had a mental impairment due to a brain tumor, the treatment of which caused her to leave work for a time. During her tenure at the school, she had a confrontation with a student’s parent in which the parent mocked her for her mental limitations. When the school learned of the incident, it fired her. She sued for disability discrimination under the ADA and the school countered that the ministerial exception to employment discrimination claims barred her suit. Agreeing, a federal district court granted summary judgment to the school, ruling that it was a religious institution and that the teacher’s role there was ministerial.
School is religious institution. As a preliminary matter, the Seventh Circuit found the school was a religious institution entitled to assert protection under the ministerial exception. Its decision to cater toward Conservative, Reform, and Reconstructionist Jewish families, as opposed to Orthodox ones, did not deprive it of its religious character and there was no requirement, as suggested by the teacher, that a religious institution employ “ordained clergy” (the school employed a rabbi in an advisory, rather than supervisory, capacity) at the head of an “ecclesiastical hierarchy.” Such a constraint, said the court, would impermissibly favor religions that have formal ordination processes over those that do not.
Promotion of inclusion not a weapon. Nor was the school’s nondiscrimination policy a waiver of the ministerial exception’s protections, said the court, noting that an organization is not required to exclude members of other faiths in order to be deemed religious. Refusing to use the school’s promotion of inclusion “as a weapon to challenge the sincerity of its religious beliefs,” the court explained that a religious institution does not waive the exception by representing itself to be an equal opportunity employer.
No rigid formula. Turning to the closer question—whether the teacher’s role was ministerial—the court noted that the Supreme Court, in Hosanna-Tabor, expressly declined to create a rigid formula for deciding when an employee is a minister. Instead, it conducted a fact-intensive analysis considering four factors: (1) the formal title given by the church, (2) the substance reflected in that title, (3) the teacher’s own use of that title, and (4) the important religious functions the teacher performed for the church. Observing that they provided a useful framework, the court examined each factor.
Job title. Noting that she identified her role as “grade school teacher,” the court found her job title cut against applying the exception. The lay title was distinct from Hosanna-Tabor, in which the plaintiff was a “called teacher” who had been given the formal title of “Minister of Religion, Commissioned.” Even if her title was “Hebrew teacher,” this alone was not enough to show she served a religious role. While her title was relevant, it was not by itself dispositive, said the court, noting that even assuming she had the purely secular title “grade school teacher,” that would not rule out application of the exception.
Use of title. Nor did her use of the title support applying the exception, as there was no evidence she held herself out to the community as an ambassador of the Jewish faith or that she understood her role would be perceived as a religious leader. Instead, she consistently maintained that her teaching was historical, cultural, and secular, rather than religious.
Substance reflected in the title. The substance reflected in her title, however, weighed in favor of applying the exception, said the court, pointing out that the school’s Hebrew teachers were expected to integrate religious teachings into their lessons. Further, the teacher’s resume touted significant religious teaching experience, which the former principal said was a critical factor in the school’s decision to hire her. Thus, the substance of her title as conveyed to her and as perceived by others entailed the teaching of the Jewish religion to students.
Performance of religious functions. As to the fourth factor, the court found the teacher performed important religious functions for the school as she taught her students about Jewish holidays, prayer, and the weekly Torah reading and practiced the religion with them by praying with them and performing certain rituals. While she argued there was a difference between teaching prayer and practicing prayer, and contended that the “Jewish concept of life,” was taught in a historic manner, her opinion did not dictate what activities the school could genuinely consider to be religious.
And while there may be contexts in which drawing a distinction between secular and religious teaching is necessary, the court found it inappropriate when doing so involves the government challenging a religious institution’s honest assertion that a particular practice is a tenet of its faith. Not only “is this type of religious line-drawing incredibly difficult, it impermissibly entangles the government with religion,” the court explained.
School’s expectation. As to the teacher’s contention that she voluntarily performed religious functions but was not required to do so, and thus she remained a secular employee, the court found that whether she had discretion in planning her lessons was irrelevant. It was enough that the school clearly intended for her role to be connected to the school’s Jewish mission. Its expectation that she follow its expressly religious mission and teach its curriculum, which was designed to develop Jewish knowledge and identity in it learners, combined with the importance of her Judaic teaching experience in her being hired, confirmed that the school expected her to play an important role in “transmitting the [Jewish] faith to the next generation.” It was the school’s expectation, said the court, that she would convey religious teachings to her students that mattered.
Observing that at most, two of the four Hosanna-Tabor factors were present here, the court noted that “even referring to them as ‘factors’ denoted the kind of formulaic inquiry rejected by the Supreme Court. And surely, said the court, it would be “overly formalistic to call this case a draw simply because two ‘factors’ point each way.” Agreeing with the court below, the Seventh Circuit explained that the formalistic factors were greatly outweighed by the duties and functions of the teacher’s position.
Teacher of faith. Reading the Supreme Court’s opinion to impose, in essence, a totality-of-the-circumstances test, the court found that under the totality of the circumstances here, the importance of the teacher’s role as a “teacher of faith” to the next generation outweighed other considerations. Refusing to adopt the position asserted in an amicus brief that “function” should be the determining factor as a general rule, the court instead declared that all facts must be taken into account and weighed on a case-by-case basis in determining whether the ministerial exception applies.
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