Monthly Archives: January 2012

“Called” Teacher Cannot Pursue Discrimination Claims Against Religious Employer

Last week the U.S. Supreme Court for the first time found that there is a “ministerial exception” to discrimination law.  In other words, Title VII of the Civil Rights Act of 1964 and similar statutes do not apply to employees holding ministerial positions.


The Supreme Court addressed the issue in addressing the employment of Cheryl Perich, who was a teacher atHosanna-TaborEvangelicalLutheranChurchand School.  The school had “lay” teachers and “called” teachers.  “Called’ teachers are regarded as having been called by God.  They must complete certain academic requirements, including a theological course of study.  Ms. Perich began as a “lay” teacher and during her course of employment became a called teacher.  In this case, in addition to teaching secular subjects, Ms. Perich taught a religion class, led her students in daily prayer, and devotional exercises.  She also took her students to weekly chapel and twice a year led the chapel service.


Later, Ms. Perich had problems and was diagnosed with narcolepsy.  She then took a leave of absence.  While she was gone, the school selected a “lay” teacher to fill her position.  Ms. Perich contacted the principal seeking to return to work and he informed her that her position had been filled.  He also expressed concern that she was not ready to return.  The school tried to persuade her to resign and agreed to cover her health insurance.  Ms. Perich refused to resign.  Ms. Perich then presented herself to the school and refused to leave until the school produced documentation stating that she presented herself for work.  The congregation voted to rescind Ms. Perich’s call for insubordination and terminated her employment.


Ms. Perich sued the school claiming discrimination and retaliation under the Americans with Disabilities Act.  The trial court entered summary judgment in favor or the school citing the “ministerial exception.”  According to this doctrine, the First Amendment of the Constitution bars claims involving the employment relationship between a religious institution and one of its ministers.  Ms. Perich filed an appeal and the U.S. Court of Appeals for the Sixth Circuit reversed the decision ruling that Ms. Percich’s position did not meet the qualifications of a minister.  In a unanimous decision, the Supreme Court disagreed.


In the opinion, Chief Justice Roberts discussed the history of the Constitution’s religious clauses.  He wrote that the Establishment Clause prevents Government from appointing ministers and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.  The Court recognized the application of “ministerial exception” and affirmed its use in the employment relationship.  The Court noted that requiring a church to retain or accept an unwanted minister or punishing a church for failure to do so, interferes with the internal governance of the church.  The Court ruled that this deprive the church control of the selection of those who will personify its beliefs.  The Court was careful to note that it was not imposing a rigid formula for deciding when an employee qualifies as a minister.  The Chief Justice also noted that it would not use a stopwatch to make the determination of whether an employee was truly a minister.


The unanimous decision revealed that the Court did not have difficulty reaching its conclusion.  As is often the case, there are issues that were not addressed by the Court in this decision.  For instance, what criteria should the lower courts use in determining whether an employee is a minister.  Will all teachers at religious schools be considered ministers?  Will the title be limited to teachers providing religious instruction?  Would a math teacher qualify as a minister?  Also, would a church secretary qualify.  Also, as one of the concurring opinions noted, a question could surface for other religions that do not use the term “minister.”  The courts will certainly be challenged as more arguments are presented regarding the boundaries of the “ministerial exception.”

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Posted by on January 21, 2012 in Uncategorized