Labor & Employment Law Daily Ministerial exception no bar to ADA claims of Catholic school teacher fired after breast cancer diagnosis
Wednesday, December 19, 2018

Ministerial exception no bar to ADA claims of Catholic school teacher fired after breast cancer diagnosis

By Kathleen Kapusta, J.D.

Reversing summary judgment against the ADA claims of an employee who was fired from her fifth grade teaching position at a Catholic school after she told her employer she had breast cancer and would need time off for chemotherapy, the Ninth Circuit found 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 appeals court 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. Dissenting, Judge Fisher argued that the substance reflected in the teacher’s title and the important religious functions she performed outweighed her formal title and whether she held herself out as a minister (Biel v. St. James School, December 17, Friedland, M.).

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.

Job duties. 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.

Diagnosis and termination. 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 “it was not fair . . . to have two teachers for the children during the school year.” She then sued, asserting disability discrimination in violation of the ADA and the district court, finding that the First Amendment’s ministerial exception to generally applicable employment laws barred her claims, granted summary judgment to her employer.

Hosanna-Tabor. In Hosanna-Tabor, the Ninth Circuit pointed out, the Supreme Court expressly declined to adopt “a rigid formula for deciding when an employee qualifies as a minister,” and instead considered “all the circumstances of [the plaintiff’s] employment.” The Court focused on four major considerations—(1) whether the employer held the employee out as a minister, (2) whether the employee’s title reflected ministerial substance and training, (3) whether the employee held herself out as a minister, and (4) whether the employee’s job duties included “important religious functions”—in determining that under the totality of the circumstances, a former teacher at a Lutheran school qualified as a minister for purposes of the ministerial exception.

Applying those considerations here, the court found that the employee had none of the Lutheran teacher’s credentials, training, or ministerial background. Although the Hosanna-Tabor plaintiff joined the Lutheran teaching ministry as a calling, the employee here appeared to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school. Nor did the employee’s Catholic school employer 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. Rather it gave her the title “Grade 5 Teacher” 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.

While the employee and the Lutheran teacher both taught religion in the classroom, “We do not, however, read Hosanna-Tabor to indicate that the ministerial exception applies based on this shared characteristic alone,” said the court, finding that even the employee’s role in teaching religion was not equivalent to that of the Lutheran teacher’s. Her role in Catholic religious education was limited to teaching religion from a book required by the school and incorporating religious themes into her other lesson.

Grussgott. Although the school pointed to the Seventh Circuit’s 2018 decision in Grussgott v. Milwaukee Jewish Day School, Inc., which held that the ministerial exception barred a Hebrew teacher’s employment discrimination suit against a Jewish primary school that fired her after she was diagnosed with a brain tumor, the Ninth Circuit explained that even assuming Grussgott was correctly decided, the plaintiff in that case more closely resembled the Hosanna-Tabor plaintiff than did the employee here. Similarly, the other post-Hosanna-Tabor cases on which the school relied were likewise not analogous to this one as all of the plaintiffs in those cases had responsibilities that involved pronounced religious leadership and guidance. Declining to read Hosanna-Tabor to exempt from federal employment law all those who intermingle religious and secular duties but who do not “preach [their employers’] beliefs, teach their faith, . . . carry out their mission . . . [and] guide [their religious organization] on its way,” the court reversed and remanded the decision of the court below.

Dissent. In a lengthy dissent, Judge Fisher, considering the complete picture of her employment, was “struck by the importance of her stewardship of the Catholic faith to the children in her class.” While her Grade 5 Teacher title may not have explicitly announced her role in ministry, the dissent asserted that the substance reflected in her title demonstrated she was a Catholic school educator with a distinctly religious purpose. Further, she expressly acknowledged this purpose in her contract, and committed herself to performing all “duties and responsibilities . . . within [the] overriding commitment” of the school to “develop and promote a Catholic School Faith Community within the philosophy of Catholic education.”

Looking at each of the Hosanna-Tabor factors, and considering the evidence in its totality without adherence to a formulaic calculation, it appeared to Judge Fisher that the employee was a minister, though perhaps not as obviously as the teacher in Hosanna-Tabor. “But the majority misses the point of the ministerial exception, 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,” he argued.

Not without cost. “This case,” he wrote, “demonstrates that the First Amendment’s guarantees are not without cost. The ADA protects some of the most vulnerable people in our society from discrimination. It is an incredibly important statutory protection. But ‘[t]he First Amendment, of course, is a limitation on the power of Congress,’ and any exercise of statutory rights under the ADA requires the courts ‘to decide whether that [is] constitutionally permissible under the Religion Clauses of the First Amendment.’ We are necessarily bound by the Supreme Court’s adoption of the ministerial exception, and its guarantee of noninterference in religious self-governance. If the exception is to provide sufficient protection for religious freedom, courts must give the exception a broad application.”

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