In June 2017 we reported the decision of the trial court to grant summary judgment in Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017). The United States Court of Appeals for the 7th Circuit has affirmed. In Grussgott v Milwaukee Jewish Day School, Inc., Slip Op. (7th Cir. 2018), the appellate court held as have others that there is no precise “formula” or set of elements that determine whether an employee is sufficiently “ministerial” to trigger the Ministerial Exception. The Plaintiff was an elementary school teacher whose job was not to teach reading, writing and arithmetic, but rather Hebrew. The Plaintiff taught Hebrew from an integrated curriculum which included religious instruction as a part of the language instruction (or language as part of the religious instruction). Also, the Plaintiff admitted teaching about Jewish Holidays, weekly Torah Readings, and participated even if she did not teach other religious rites. It was not dispositive that Plaintiff claimed she only taught historical and cultural facts and not religion. The school documented that it was intended that Plaintiff’s role contribute to the “school’s Jewish mission.”
Rather than adopt a formulaic test or set of elements, the 7th Circuit adopted what it called the “totality of circumstances” test. Of course, the totality would include many elements. Thus, in this case, Plaintiff’s role as a teacher of the faith to the next generation “outweighed” other considerations.
The lesson for church schools and para-church organizations generally is to link the job with the religious mission. This should be done in employee handbooks, policy manuals, and governing documents. It would not hurt if the new employee signed an acknowledgment of the religious mission of the new employer and also acknowledged the employee’s important role in that mission. It might not be especially specific but it would make ignorance of the mission and the expectation of participation in the mission an untenable claim.