In the United States Supreme Court case, Hosanna – Tabor Evangelical Lutheran Church and School v EEOC, 565 US___, (01/11/2011), with which everyone is now trying to bring their employment relationships into alignment, the teacher in question was classified as a “minister” because of her religious licensure and her religious teaching responsibilities. As such, employment decisions could not be reviewed by the courts without violation of the First Amendment Ecclesiastical Abstention Doctrine. Other religious organizations have had the idea based on the case that all of their employees, regardless of expertise, are also religious operatives and so described them in employment contracts and employment policy manuals.
Will it work?
So far, it generally has. It probably will if the job, as described in the policy manual, includes religious education or other religious duties. In the absence of a policy manual or job description, there may be other proof of the religious entanglement of even secular positions. If the religious organization accepts government money there may be the need to trace whether the federal programs in which the employees serves is secular, and funded by government, or secular but related to the religious objectives. Absent a financial entanglement with government, most courts will likely allow church schools to enforce the tenants of their religious sponsors and probably most other types of organizations, too.
Another valid question would be, is it necessary? Most courts will see the reality rather than look only to the form. For now, until a few more court decisions come down the pipeline, the better practice is to revise employment agreements and policy manuals of church schools to make clear the religious nature of the duties of the teachers.
Another method of deflecting employment claims will be the “morality clause” inserted in employment contracts or policy manuals. Most denominations have a central document that sets forth a clear statement of the religious morality expected or sought, too. Evangelical churches that do not have a denominational base document usually have corporate bylaws or other constitutional documents upon which the church school or employment policy manual can be based to achieve the same result.