Recent Seventh Circuit Opinion Provides Further Instruction on the “Ministerial Exception”
By Maureen A. Murphy
Grussgott v. Milwaukee Jewish Day School, Inc., No. 17-2332 (7th Cir. February 13, 2018)
In its first opinion to date on the “ministerial exception” since the Supreme Court’s ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC et al, 132 S.Ct. 694, 706 (2012), the Seventh Circuit has ruled that a Hebrew teacher at a Jewish day school is a ministerial employee and therefore, her employment discrimination case against the school is barred. In Grussgott v. Milwaukee Jewish Day School, Inc., No. 17-2332 (7th Cir. February 13, 2018), a former Hebrew teacher at the school sued her employer, alleging that she was terminated due to her disability in violation of the Americans with Disabilities Act. Her employer argued that the teacher was a ministerial employee and that her claim was therefore barred by the “ministerial exception”. The district court granted summary judgment on this issue to the employer and the teacher appealed that decision to the Seventh Circuit which, on February 13, 2018, affirmed the district court’s decision.
The “ministerial exception” is a legal doctrine, based upon the First Amendment, that bars employment discrimination claims of ministerial employees on the theory that government interference in these employment decisions interferes with the internal governance of the church.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC et al., 132 Sect. 694, 706 (2012). Non-ordained employees of a religious institution are ministerial employees when they are responsible for teaching the faith, conveying the Church’s message, and carrying out the Church’s mission, Hosanna-Tabor, 132 S.Ct. at 708. When the ministerial exception applies, a court may not get into the merits of the discrimination claim itself. The Hosanna-Tabor case involved a lay, “called” teacher in a Lutheran elementary school. The Supreme Court held that the “ministerial exception” does exist, and that, based upon the facts of this particular case, the teacher was a ministerial employee. Since the Hosanna-Tabor decision, only one federal appellate court, the Sixth Circuit, had rendered an opinion on the ministerial exception. In that case, Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 833-834 (6th Cir. 2015), the court held that the ministerial exception applies to religious organizations other than “churches” and is applicable to evangelical campus mission organizations.
The Seventh Circuit’s ruling is significant in providing further guidance on how to determine whether the ministerial exception applies in a particular situation:
- Are private, independent religious schools considered religious institutions? The Seventh Circuit rejected the argument that a religious institution must employ “ordained clergy” at the head of an “ecclesiastical hierarchy” to qualify as a religious organization.
- Does a religious organization waive its right to claim the ministerial exception if it has a nondiscrimination policy? The Seventh Circuit stated that “a religious institution does not waive the ministerial exception by representing itself to be an equal-opportunity employer . . . [w]e therefore should not use the school’s promotion of inclusion as a weapon to challenge the sincerity of its religious beliefs.”
- How does a court determine whether an employee is a ministerial employee? The Seventh Circuit concluded that the Hosanna-Tabor decision imposes a “totality-of-the-circumstances” test to determine whether an employee is a ministerial employee. Those circumstances include the factors identified by the Supreme Court in Hosanna-Tabor: “(1) ‘the formal title’ given by the Church, (2) ‘the substance reflected in that title,’ 93) ‘[the teacher’s] own use of that title,’ and (4) ‘the important religious functions she performed for the Church.’” Hosanna-Tabor, 565 U.S. at 192.