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  • Writer's pictureBrettner Counsel

Employment Discrimination and the Free Exercise of Religion—Where do we go from here?

Updated: Jan 10, 2022

Earlier this term, the Supreme Court issued a landmark decision extending Title VII to LGBTQ+ employees. Those Title VII rights have now been weakened by a decision on the less well-known ministerial exception. Religious/parochial employers have invoked three main exceptions to Title VII protections— (1) the role model exception; (2) the bona fide occupational qualification exception; and (3) the ministerial exception. On July 8, 2020 in Our Lady of Guadalupe School v. Morrissey-Berru, the Supreme Court broadly interpreted the ministerial exception to shield a larger share of employment decisions from federal employment discrimination law.

Under the ministerial exception, the First Amendment prevents courts from questioning employment decisions of religious employers regarding their “ministers” or clergy.  However, courts have struggled with who would qualify as a minister. For employers and employees, this distinction is incredibly important. If a religious employer is able to treat a math teacher who conducts an hour of bible study every week as a minister, then that employer could legally fire a teacher for coming out as LGBTQ+, pregnant, or as any other class protected under discrimination law.

The Supreme Court established that such a teacher would be a “minister” in Morrissey-Berru. The case involved two elementary school teachers at Catholic schools who taught secular and religious courses. One teacher was required to teach religion for nearly 3.5 hours per week. The Supreme Court determined this amount of time (or mixture of secular and non-secular teachings) was sufficient for the subject teacher to fall within the ministerial exception as “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” This reasoning broadens the application of the ministerial exception and opens its interpretation potentially to include choir instructors, counselors, and coaches, among others. Parochial employees and employers should be mindful of the Supreme Court’s enhanced interpretation of the ministerial exception when executing employment agreement and when taking action that may be discriminatory under federal law.

If you would like more information and/or a more detailed analysis of any particular question regarding the ministerial exception, our attorneys are here to help.


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