The First Amendment to the U.S. Constitution states in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The first of these two quoted clauses is known as the Establishment Clause. The second of these two quoted clauses is termed the Free Exercise Clause.
In January 2012, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, No. 10-553, 565 U.S. ___ (U.S. Jan. 11, 2012) (Roberts, C.J.), a unanimous U.S. Supreme Court held that the Establishment and Free Exercise Clauses of the First Amendment prohibit a minister who is employed by a religious institution from suing his employer for terminating him in violation of a statute prohibiting discrimination or retaliation in employment. Such a lawsuit is barred, the Hosanna-Tabor Court held, whether the minister’s lawsuit seeks reinstatement or, instead, damages.
The Hosanna-Tabor decision is a major victory for private educational institutions — including elementary, junior high, and high schools as well as universities and graduate schools — which are affiliated with particular religious denominations.
In the Hosanna-Tabor decision, the U.S. Supreme Court held, for the first time, that there exists a judge-made ” ‘ministerial exception, ‘ grounded in the First Amendment, that precludes application of [employment discrimination] legislation to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church & School, No. 10-553, slip op. at 13.
As the Hosanna-Tabor Court observed, each of the twelve U.S. Courts of Appeals had already recognized the ministerial exception to employment discrimination laws. See Hosanna-Tabor, No. 10-553, slip op. at 13 & n.2. (So, too, New York’s Appellate Division, First Department, had applied the ministerial exception. See O’Connor v. Church of St. Ignatius Loyola, 8 A.D.3d 125, 779 N.Y.S.2d 31 (N.Y. App. Div. 1st Dep’t 2004.)
In Hosanna-Tabor, the U.S. Supreme Court “concluded that the ministerial exception is not limited to the head of a religious congregation.” However, the Court declined “to adopt a rigid formula for deciding when an employee qualifies as a minister” who is unprotected by statutes prohibiting discriminatory or retaliatory termination of employment. Hosanna-Tabor, No. 10-553, slip op. at 13 & n.2.
The Hosanna-Tabor Court reinstated the federal district court’s order granting summary judgment dismissing the claims of the intervenor, a kindergarten and elementary school teacher, that the defendant church and school, a member congregation of the Lutheran Church-Missouri Synod, fired her in retaliation for threatening to file a lawsuit against the church and school under the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. (the “ADA”). In so ruling, the U.S. Supreme Court made clear that, however broad the definition of a “minister” is for purposes of the ministerial exception to employment discrimination laws, that definition is considerably broader than the appellate courts of New York to date have acknowledged.
Specifically, in Hosanna-Tabor, the intervenor individual was a ” ‘called teacher’ ” at the defendant church and school, meaning that the congregation “regarded [her] . . . as having been called to her vocation by God through [the] congregation.” Hosanna-Tabor, No. 10-553, slip op. at 2. To become a ” ‘called’ ” teacher, the intervenor had to, and did, complete eight college level courses, some of which concerned Lutheran church doctrine; obtain the endorsement of her local Synod district; and pass an oral examination by a faculty committee at a Lutheran college. Id. at 16. However, the intervenor spent only 45 minutes of each workday teaching religious subjects or otherwise performing religious duties. Id. at 18. “[T]he rest of her day was devoted to teaching secular subjects.” Id.
The U.S. Supreme Court held that the intervenor “was a minister covered by the ministerial exception” to employment discrimination laws. Hosanna-Tabor, No. 10-553, slip op. at 18.
By contrast, in the only New York appellate opinion recognizing the doctrine to date, New York’s Appellate Division, First Department, relying on a more narrow ” ‘ministerial exception,’ ” affirmed the dismissal of an “employment discrimination” lawsuit brought by the plaintiff, “a pastoral associate and chaplain whose primary function served the spiritual and pastoral mission of the church.” O’Connor v. Church of St. Ignatius Loyola, 8 A.D.3d 125, 779 N.Y.S.2d 31 (N.Y. App. Div. 1st Dep’t 2004).
After Hosanna-Tabor, private educational institutions which are affiliated with particular religious denominations have carte blanche to fire the heads of the institutions for reasons which, if a non-religious institution utilized them to fire an employee, would constitute prohibited discriminatory or retaliatory termination of employment. Sectarian educational institutions’ authority lawfully to terminate “ministers” for reasons that would otherwise be deemed discriminatory or retaliatory extends down these institutions’ hierarchies to some extent. That extent will be explored by the federal and state courts on a case-to-case basis.