Supreme Court Removes Discrimination Protections for a Wide Range of Church-Affiliated Employees

To a degree, the First Amendment shields religious institutions from government involvement in employment disputes. The U.S. Supreme has recently broadened that protection to potentially place hundreds of thousands of parochial school teachers and other church-affiliated workers outside the reach of workplace discrimination laws. Our Lady of Guadalupe School v. Morrissey-Berru (July 8, 2020)

Two elementary teachers employed at Southern California Catholic schools claimed discriminatory termination, for age and disability respectively. While denying those allegations, the schools claimed they were in any event beyond the reach of the federal Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA) because each teacher fell within the “ministerial exception” to these laws.

Seven justices of the Court agreed with the schools. Although neither employee held the title of minister or any equivalent church leadership designation, the majority found them unprotected by discrimination laws as each functioned as “teacher of religion” by the inclusion of some degree of Catholic indoctrination and practice in their otherwise secular curricula. The justices concluded that they must respect the schools’ self-declared exemption from the ADEA and ADA because the First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

Justice Sotomayor’s dissent pointed up the decision’s potentially staggering applications. Previously, the ministerial exemption applied only to individuals demonstrably in leadership positions of respective denominations.  Justice Sotomayor observed that so long as the religious employer determines that a worker’s “duties” are “vital” to “carrying out the mission of the church,” that employer now appears able “to make employment decisions because of a person’s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.”

Pulling no punches, the justice remarked that “sources tally over a hundred thousand secular teachers whose rights are at risk … [to say] nothing of the rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions. All these employees could be subject to discrimination for reasons completely irrelevant to their employers’ religious tenets.”

Whether this Our Lady decision leads to such a broad loss of discrimination protections for workers in the faith sector remains to be seen. All justices acknowledge future cases must of necessity proceed on a case-by-case basis. However, the ruling does provide church institutions a roadmap on how best, in good faith, to position particular employee job duties to the exclusion of those protections.

See also:

• Know Your Boundaries, New Employer Restrictions on Hiring Notices and Interviews (June 13, 2020)
• Faith and the Pandemic; State and Local Governments Now Agree Churches Are Essential (June 4, 2020)
• Accommodating Religion in the Workplace: Avoid Employment Discrimination Gallows (March, 2011)
• Religion in the Workplace, Have Faith in the Law (September, 2009)

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles

July 16, 2020