Labor & Employment Law Daily Lay teachers at religious schools not shielded from employment discrimination
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Friday, July 10, 2020

Lay teachers at religious schools not shielded from employment discrimination

By Joy P. Waltemath, J.D.

Expanding the rationale set forth in its 2012 Hosanna-Tabor decision, the Court determined that two lay elementary teachers in Catholic schools who had minimal formal religious training were not protected by employment discrimination laws.

Reversing and remanding decisions of the Ninth Circuit in cases involving the removal of two elementary school teachers in Catholic schools, the Supreme Court held 7-2 that the two, who were employed under agreements that identified their roles as implementing the schools’ mission to develop and promote a Catholic School faith community, could successfully invoke the ministerial exception doctrine it first recognized in 2012’s Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Although here, the teachers lacked the ministerial title and formal religious training of the teacher in Hosanna-Tabor, the majority reasoned that their core responsibilities were essentially the same; they had a vital role in carrying out the church’s mission (Our Lady of Guadalupe School v Morrissey-Berru, July 8, 2020, Alito, S.).

“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” wrote Justice Alito for the majority. “Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh, joined Alito’s majority opinion. Justice Thomas filed a concurring opinion, in which Justice Gorsuch, joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined

The decisions below. The consolidated cases decided here are Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. Both sought review of Ninth Circuit decisions addressing the First Amendment’s ministerial exception.

At St. James School. Below, in Biel, the fifth-grade teacher at a Catholic school (she taught all subjects, including religion) was diagnosed with breast cancer only six months after receiving a positive teaching evaluation. 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.

However, on appeal, the Ninth Circuit reversed summary judgment. At most, only one of the four considerations mapped out in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC weighed in favor of the school. Moreover, no other federal appeals court had applied the First Amendment’s ministerial exception to a case that bore so little resemblance to Hosanna-Tabor. Declining the school’s invitation to be the first, the appellate 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.

At Our Lady of Guadalupe School. In the unpublished Morrissey-Berru decision, the employee, also a teacher at a Catholic school, brought a claim under the ADEA. The Ninth Circuit reversed summary judgment in favor of the school and the district court’s conclusion that the employee was a “minister” for purposes of the ministerial exception. Unlike the employee in Hosanna-Tabor, this employee’s formal title of “teacher” was secular. “Aside from taking a single course on the history of the Catholic church, [the employee] did not have any religious credential, training, or ministerial background,” wrote the appeals court, adding, she also “did not hold herself out to the public as a religious leader or minister.” Citing to its Biel ruling, the appeals court also said that “an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework.”

The teachers’ duties. The majority opinion characterized the two elementary school teachers, who both taught at Roman Catholic schools in the Archdiocese of Los Angeles, as having teaching responsibilities similar to the teacher in Hosanna-Tabor. Both were employed under very similar agreements that set out the schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teachers’ performance would be reviewed by those criteria. Each was considered a “catechist,” a teacher of religion. Each taught religion in the classroom, worshipped with her students, prayed with her students daily, and had her performance measured on whether “Catholic values” were infused in all their teaching.

The ministerial exception. In the court’s view, the independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in “matters of church government.”

“This does not mean,” said the majority, “that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.” As such, courts must “stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”

No rigid test. In Hosanna-Tabor, the teacher’s church had given her the title of “minister, with a role distinct from that of most of its members.” Her position “reflected a significant degree of religious training followed by a formal process of commissioning.” She “held herself out as a minister of the Church” and claimed certain tax benefits, and her “job duties reflected a role in conveying the Church’s message and carrying out its mission.” But according to the Supreme Court this term, the recognition of the significance of those Hosanna Tabor factors does not mean that they must be met”—or even that they are necessarily important—in all other cases,” stressed the Court. “What matters, at bottom, is what an employee does.”

Role of religious education. Citing the role of religious education in Catholic, Protestant, Jewish, Muslim, Mormon/LDS, and Seventh-Day Adventist schools, the Court emphasized that a religious institution’s explanation of the role of such employees in the life of the religion in question is important. It disagreed with what it called the Ninth Circuit’s rigid test based on Hosanna-Tabor, finding it “produced a distorted analysis.” Thus, while the teachers here did not have titles that included the term “minister,” and they had less formal religious training than the teacher in Hosanna-Tabor, “their core responsibilities as teachers of religion were essentially the same.” And the schools expressly saw them as playing a vital role in carrying out the church’s mission. Accordingly, the ministerial exception applied, and the First Amendment’s Religion Clauses foreclosed the adjudication of the two teachers’ employment discrimination claims.

What the Ninth Circuit got wrong. According to the Court, the Ninth Circuit misunderstood the Hosanna-Tabor decision, treating it as a checklist of items to be assessed and weighed against each other in every case (the Court majority criticized the dissent for doing the same). However, the majority stressed that courts were “to take all relevant circumstances into account and to determine whether each particular position implicated the fundamental purpose of the exception.”

Titles. First, said the Court, the Ninth Circuit invested “undue significance” in the fact that the two teachers lacked clerical titles. But they did have titles—they were Catholic elementary school teachers and were their students’ primary teachers of religion. “The concept of a teacher of religion is loaded with religious significance,” noted the Court, pointing out that the term rabbi means teacher, and Jesus was frequently called rabbi.

Formal religious education. Next, the Ninth Circuit assigned too much weight to the teachers’ relative lack of formal religious schooling than was present in Hosanna-Tabor. Because the religious schools here obviously believed the two teachers had a sufficient understanding of Catholicism to teach their students, “judges have no warrant to second-guess that judgment or to impose their own credentialing requirements.”

Duties. In addition, specifically targeting the Ninth Circuit’s St. James panel, the Court explained that it inappropriately diminished the significance of the teacher’s duties because they did not evince “close guidance and involvement” in “students’ spiritual lives.” The Court took issue with that panel’s suggestion that the teacher merely taught “religion from a book required by the school,” “joined” students in prayer, and accompanied students to Mass in order to keep them “‘quiet and in their seats.’” But “this misrepresents the record and its significance. For better or worse, many primary school teachers tie their instruction closely to textbooks, and many faith traditions prioritize teaching from authoritative texts,” the Court observed.

Religious preference exception. In St. James, the Ninth Circuit also suggested that the Hosanna-Tabor exception should be interpreted narrowly because the ADA and Title VII contain provisions allowing religious employers to give preference to members of a particular faith in employing individuals to do work connected with their activities. But the Hosanna-Tabor exception serves an entirely different purpose, said the Court. It went on to take issue with the idea that an employee would have to be a practicing member of the same religion in which they taught to come within the ministerial exception. Although schools likely would try to select employees who practiced the same religion, “insisting on this as a necessary condition would create a host of problems.”

First, determining whether a person is a practicing member of the same religion will not always be easy. (For example, are Orthodox Jews and non-Orthodox Jews the same religion? “Would Presbyterians and Baptists be similar enough? Southern Baptists and Primitive Baptists?” Deciding such questions would risk judicial entanglement in religious issues. And excluding those who no longer practiced the faith would be even worse: Would the test turn on the individual’s decision, or “whether the faith tradition in question still regarded the person as a member in some sense?”

Consequently, the Court concluded, “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.”

Concurrence. Justice Thomas, with whom Justice Gorsuch joined, concurring in the majority opinion, wrote separately to reiterate his view that the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is ministerial. Judges lack the requisite “understanding and appreciation of the role played by every person who performs a particular role in every religious tradition.” Because what qualifies as ministerial is an inherently theological question, it is one that cannot be resolved by civil courts through legal analysis, the concurrence suggested.

Dissent. Justice Sotomayor, joined by Justice Ginsburg, stressed in dissent an aspect of the cases below that the majority opinion glossed over: that the two teachers were fired “allegedly because one had breast cancer and the other was elderly,” yet the majority protected their employer from employment discrimination claims, holding they “could be fired for any reason, whether religious or nonreligious, benign or bigoted, without legal recourse.” The dissent emphasized that the “teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.” The dissenting justices believed the majority’s approach inappropriately reduced Hosanna-Tabor’s careful analysis into a single question: “whether a church thinks its employees play an important religious role.”

After discussing the ways in which, consistent with the First Amendment, the Government may compel religious institutions to pay minimum wages and enforce child labor protections (among other obligations), the dissent also pointed to statutory exceptions in federal law that protect a religious entity’s ability to make employment decisions— hiring or firing—for religious reasons. Further, when the ministerial exception applies, it is “is extraordinarily potent: It gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability, or other traits protected by law when selecting or firing their “ministers,” even when the discrimination is wholly unrelated to the employer’s religious beliefs or practices … . That is, an employer need not cite or possess a religious reason at all; the ministerial exception even condones animus.”

Arguing for a more narrow interpretation, the dissent pointed out that, “wary of the exception’s “potential for abuse,” federal courts took a cautious approach “in determining which employees are ministers exposed to discrimination without recourse.” Formerly, Hosanna-Tabor’s approach ensured that a church could not categorically disregard generally applicable antidiscrimination laws for nonreligious reasons, stressed the dissent. “Only by rewriting Hosanna-Tabor does the Court reach a different result.”

Continued Justice Sotomayor, “Indeed, today’s decision reframes the ministerial exception as broadly as it can, without regard to the statutory exceptions tailored to protect religious practice. As a result, the Court absolves religious institutions of any animus completely irrelevant to their religious beliefs or practices, and all but forbids courts to inquire further about whether the employee is in fact a leader of the religion. Nothing in Hosanna-Tabor (or at least its majority opinion) condones such judicial abdication.”

Expert commentary. Christian Poland, a litigation partner with Bryan Cave Leighton Paisner, who authored an amicus brief in this case, noted that “There is occasional and unavoidable tension between religious autonomy and enforcement of societal expectations regarding nondiscrimination. … While some may view today’s decision as ‘immunizing’ religious groups from complying with statutory nondiscrimination directives, the First Amendment required the outcome of the Our Lady case. A religious institution’s mission and identity is protected from governmental intrusion when it comes to the selection and retention of its message bearers.”

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