“Religious” Employees Have Been Stripped of Their Rights. How Should They and Their Employers Respond?

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“Religious” Employees Have Been Stripped of Their Rights. How Should They and Their Employers Respond?

The Supreme Court is often tasked with discerning where to draw the line when civil rights and religious liberty come into conflict. Earlier this month the Court drew yet another line, favoring religious employers even though workers’ basic civil rights were at stake.

As a result of the Court’s decision in Our Lady of Guadalupe v. Morrissey-Berru, employees who play a role in carrying out the religious mission of their employer have essentially been stripped of all employment protections, including the right to be free from discrimination, sexual harassment, and retaliation. The Court’s decision turned on a judicial invention called the “ministerial exception.”

The exception flows from the 1st Amendment to the Constitution, which includes protections for religious liberty. Courts have long interpreted the Amendment to prohibit governmental “entanglement” in purely “ecclesiastical” affairs, such as an organization’s appointment of its own religious leaders. For decades now, courts have interpreted their duty to stay out of religious affairs to require that they not adjudicate employment disputes involving religious leaders and their religious employers.

This “ministerial exception” carves out religious leaders, or “ministers,” from the usual protections of employment laws. As a result, claims brought by many employees in religious workplaces for racial discrimination, sexual harassment, and retaliation—among many others—have simply been dismissed. These legal cases have rarely involved settling disputes over religious doctrine. They are usually straightforward employment disagreements that would otherwise be litigated. These cases are dismissed, however, because they happen to be brought by a worker employed at a religious institution.

The Supreme Court first recognized a “ministerial exception” to employment discrimination laws in its 2012 case Hosanna-Tabor v. EEOC. A teacher at a Lutheran school complained she was fired on account of her disability. Her school successfully blocked her lawsuit by claiming she taught religious courses, had ministerial training, and used a ministerial title, therefore qualifying her as a “minister” under the law. The Supreme Court ruled that these various factors should be taken into account as part of a “totality of the circumstances” analysis.

A new development in the exception appeared a few weeks ago. The Court heard Our Lady of Guadalupe, which involved two Catholic elementary school teachers. Agnes Morrissey-Berru sued for age discrimination after she, a sexagenarian, was terminated and replaced by a younger teacher. Kristen Biel discovered she had breast cancer and would need time off for surgery and chemotherapy. She was fired shortly after requesting leave and sued for disability discrimination. Regrettably, she passed away before she could see the outcome of her case.

These two women had no title other than “teacher,” had undergone no specialized ministerial training, and were not even required to be Catholic. Most of their instruction time was spent on secular subjects. Nonetheless, the Court fixated on the minimal time they spent in religious instruction and on activities that were tangentially related to religion, such as accompanying students to school Masses and ensuring they were quiet during services. Based on these activities, the Court sided with the employers, found that the women qualified as “ministers” of the Catholic faith, and dismissed their lawsuits.

The Exception’s “Staggering Breadth”

While some people would disagree that the teacher in Hosanna-Tabor qualified as a “minister,” her role did contain some overlap with the roles of traditional religious leaders. The teachers in Guadalupe, however, had practically the same roles as any public elementary school teacher. The religious component to their jobs was minimal and could have been fulfilled by practically anyone employed at the school.

As a result of the Guadalupe ruling, it appears that all Catholic elementary school teachers now qualify as “ministers.” It also seems likely that all Catholic high school teachers, deans, guidance counselors, and other positions will be deemed “ministerial” by the court moving forward, as long as they play a part in leading prayer, teaching about religion, or perhaps even accompanying students to a religious ceremony.

Astonishing to some, employees at religious schools are not spared from the exception if they are of a different faith than their employers. A Muslim who teaches English at a Catholic school, for example, will likely be deemed a “minister” of the Catholic faith if she has students lead prayer at the top of each class, even if she only does so because her school’s administration requires it. What matters to the courts is an employee’s function in overseeing or passing on the religious mission of the school, not the employee’s personal faith commitments.

With Guadalupe, the Court immediately transformed the nation’s more than 150,000 Catholic school teachers into “ministers.” As long as they play some role in passing on their employer’s religion mission, they are now legally defenseless against discrimination, harassment, and retaliation in the workplace.

Given the Court’s reasoning in Guadalupe, the exception seems to apply not only to schools, but to any religious employer. That means approximately 2 million employees across the U.S. likely lost their employment protections as well. Nurses in Catholic hospitals, case workers in Islamic social service organizations, counselors at Jewish summer camps, editors at evangelical Christian media outlets, and many other employees are probably now covered by this exception. Justice Ginsburg said it best: “the breadth of the exemption is staggering.”

What Does This Ruling Mean for Employees?

Like Hosanna-Tabor before it, the Guadalupe ruling will have various implications for employees, even though most workers will not sense palpable changes. Their day-to-day routines and interactions with management and co-workers will likely appear mundane, even though their legal status may have changed. In the wake of this sweeping ruling, the following are a few tips for concerned employees:

  • Be aware. Workers in religious settings who have employment contracts might have seen their agreements expand since the Hosanna-Tabor decision. Many employers started including language meant to portray as many employees as possible as “ministers.” With the recent Guadalupe ruling, there will likely be another push for such additions. Mentions of playing a critical role in the performance of an organization’s religious mission or serving as a representative or an “ambassador” of the mission could signal that your employer is classifying you as a “minister” in case of future litigation. These add-ins might make their way into employment handbooks, job descriptions, and other documents.
  • Attempt to negotiate. If you notice changes to your contract or job description, consider carefully and strategically sharing your unease with your supervisor, management, or HR department. Point out how your current role and functions do not qualify you as playing a crucial role in passing on a religious mission. If you are knowledgeable about the religious tradition of your employer, you can even point to theological arguments or doctrine that help make the case that your job duties do not qualify as religious functions, nor should you be considered a representative of the faith to your customers, clients, patients, or students.
  • Organize. If behavior in your workplace is truly troubling, lean on your union for support. Your union could try to bargain for language in employment contracts that explicitly classifies employees as non-ministerial for purposes of the law. Know that this will be a difficult battle. If you do not currently have a union, you could consider carefully and discreetly asking trusted co-workers if they have any interest in forming one. If so, you could be on your way to organizing your workplace. Just know that labor organizing can be a very difficult task and is additionally complicated in religious workplaces.

Unfortunately, employees in religious institutions do not have many places to turn in the wake of this ruling. If you are truly afraid, the best option might be to start looking for work in a non-religious workplace where you will enjoy the full protections of employment laws.

What Does This Ruling Mean for Employers?

Courts have traditionally given wide discretion to employers’ assertions about whom they consider to be passing on their mission, and thus whom they can claim are unprotected by employment laws. In fact, Guadalupe permits them to cast their employees as “ministers” on only a de minimis showing, essentially providing religious employers blanket immunity from employment laws. While this might sound like great news for management, organizations with a religious bent should take cues from the teachings of the world’s great religions on unfettered freedom: it usually isn’t a good thing. Put another way: just because you can doesn't mean you should.

There are several reasons why you should carefully discern whether you want to invoke the “ministerial exception” in potential litigation. While using the exception can protect you legally, and can come in handy against totally unfounded claims, it might expose you to different kinds of risk that are potentially more damaging. The following are some reasons why you might want to forego use of the exception in many cases, if not altogether:

  • It can damage your public image. When an organization decides not to adjudicate a legitimate claim openly and fairly, it could imply that you are not concerned for your employees’ well-being, and at worst it could indicate that you have something to hide. If you attempt to use the exception to evade claims of discrimination or harassment, it may appear that your organization is disinterested in straightforwardly addressing unethical practices. And raising the exception against allegations that your organization ignored or hid misconduct, such as a retaliation or whistleblower claim, projects a particularly bad look: it smacks of bad faith and may appear simply to be a smokescreen.
  • It can harm workplace culture and morale. If employees learn that your company used the exception against one of their co-workers, whom they believe to have had a legitimate claim, they will likely view this as a sign that you care more about avoiding legal liability than you do about creating an inclusive workplace environment. Think about how Ms. Biel’s fellow teachers must have felt, knowing their employer used the exception to evade analysis of whether it fired their colleague because she was diagnosed with cancer. Feeling disposable or devalued by management can lead your employees to feel lackluster about their work and to seek employment elsewhere, where they will at least enjoy the protections of employment laws.
  • It conflicts with your mission and values. Religious missions usually center respect for the disadvantaged, concern for human dignity, and an emphasis on our common humanity. Deflecting credible claims of discrimination, harassment, or other misconduct by claiming an employee is a “minister” runs contrary to the humanistic mission and spiritual values of most, if not all, religious employers. In fact, it is likely a corruption of a business’ religious mission to use it to block an employee’s quest for justice. Your business undoubtedly strives to maintain consistency not only in the services or products it offers, but also in its external and internal messaging. You must seriously ask yourself if using the exception helps accomplish your organization’s mission or muddles its message.
  • It relies on a twisted irony. While it is disturbing that an organization’s mission can be used to block any employee from exercising legal rights, it is further shocking that a religious mission would be turned against the “ministers” who most personify it. Employees subject to the exception would rarely qualify as “ministers” in most people’s minds, yet employers are quick to claim these workers were tasked with such crucial religious functions that they “embodied” the employer’s religious mission. If such employees really did serve as incarnations of the mission, it seems perverse that the same mission could be utilized to deprive them of their legal rights. You must reflect on whether you want to use your organization’s religious mission to deny your most crucial employees their day in court, or if you would rather leverage your mission to foster the respect and dignity that it is supposed to represent.
  • In many cases, it furthers workplace misconduct. The ministerial exception has been used time and again to deflect legal examination of discrimination, harassment, and retaliation, but also breaches of contract, wage and hour disputes, and other employment issues. The lack of judicial oversight allows the underlying misconduct to continue unfettered by a court’s ruling or public scrutiny. As a religious employer, you must seriously consider the exception’s potential to allow unethical practices at your institution to remain unexamined, or even to embolden them.

It is never comfortable to give up certain legal protections, especially if they could save you time and expense. But consider the reputational damage to your organization, as well as the potential erosion of morale and integrity in the workplace. These costs might be far higher than any material drawbacks.

With the Guadalupe ruling, employees are placed in a precarious position while religious employers maintain broad autonomy. Employers’ religious missions and values have been allowed to stand on their own as organizing principles in workplaces and, with little judicial oversight, their integrity is being tested. What will your organization do when no one is looking?

This post also appears on the author's Medium profile.