The Ministerial Exception when applicable bars enforcement of most state and federal employment laws against church employers and bars employment claims by most church employees. Church employees are almost always engaged in religious duties in parallel with non-religious duties. Para-church organizations, however, by their hybrid nature force the Courts to inquire more deeply and with some skepticism because the further from the actual church the organization is the murkier the application of the exception probably will be. A church school is a para-church organization if it is a separate corporate or legal entity which for financial and accounting reasons most are.

In Fratello v Archdiocese of New York, 863 F3d 190 (2nd Cir., 2017), the federal appellate court had to decide whether a “lay principal” of a church high school was a “minister” triggering the exception. The Plaintiff’s contract was not renewed for a fifth year as “lay principal.” The Court opinion did not specify the reason for non-renewal. The Plaintiff’s employment contract listed Plaintiff’s job title as “Lay Principal.” But, the courts looked at the actual duties described and performed. Religious instruction by the employee of the students was the primary factor. No formal ordination was required. The Court found that the “lay principal” was delegated religious duties by the local church pastor responsible for the school to the archdiocese. Finding the employee responsible for religious instruction of students triggered the exception and the case was dismissed which the appellate court affirmed.

One lesson from this opinion was that the Court explicitly stated there was no presumption that the principal of a church school was a minister triggering the exception. Counsel with such a case for a church school must convince the church school or its sponsor to search out the record of religious entanglements with the job of the former employee. For example, in Fratello, affidavits or written statements by other school personnel confirmed the Plaintiff’s involvement in religious instruction from the school intercom broadcast of a prayer or other religious message to the actual supervision of religious instruction teachers and classes. There was likely little or no written record of the former and maybe not of the latter.

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