In a church tradition or denomination that carefully proscribes who may be a “minister,” “priest,” or “pastor,” persons that assist in worship, sacraments, church schools and other vital roles may not have a title of office that would neatly fit in the Ministerial Exception. Often the question with such employees is whether their role is sufficiently vital to religious services and advancement of the needs of the faith to be considered ministerial even if their title is not clearly related.
In Menard v Archdiocese of Boston, Slip Op. (Mass. 2020), the trial court considered the plaintiff’s employment contract and an article the Plaintiff wrote for the church newsletter in which the Plaintiff described the duties incumbent upon Plaintiff’s position. The consideration led to dismissal of the lawsuit pursuant to the Ministerial Exception. The appellate court affirmed. The Plaintiff was a Director of Music Ministries and could not be a priest or pastor. But, her duties as Director of Music “presuppose a significant knowledge of her faith’s musical canon, and the ability to transmit that knowledge and “convey the Church’s message.”” The decision was based on the newest United States Supreme Court pronouncement in Our Lady of Guadalupe Sch. v Morrissey-Berru, U.S. Supreme Ct., Nos. 19-267 & 19-348, slip op. at 18 (July 8, 2020) which taught that “what matters, at bottom, is what an employee does.”
In cases of this type an employment contract is an invaluable documentation of the religious and secular duties of the employee. In this case, because the employee was of some longevity, the employee wrote a church newsletter article that dovetailed with the contract and explained the duties in the Plaintiff’s own words. Church newsletters are often invaluable sources of this type of information. Oddly, many churches do not keep file copies (paper or digital).
As reported herein, the United States Court of Appeals for the 9th Circuit, in Biel v St. James School and in Morrissey-Berru v Our Lady of Guadalupe School, held that elementary school teachers in Catholic schools were permitted to assert federal employment law claims. The 9th Circuit held that the elementary church schoolteachers were not “religious leaders” and their employment duties were not religious enough to require Courts to abstain from such claims pursuant to the Ministerial Exception of the First Amendment. That the teachers taught fundamental religious materials required by the church school did not matter in the 9th Circuit because that was not sufficiently religious or ministerial.
In Our Lady of Guadalupe School v Morrissey-Beru consolidated with St. James School v Biel, Slip. Op. (US 2020), the United States Supreme Court reversed the 9th Circuit in both cases. Furthering the formulation of the Ministerial Exception as applied to a church school teacher in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012), the Supreme Court held that the religious education and instruction duties of the teachers, the very reason for the existence of church schools, was at the core of the mission of the schools. Such duties were “vital religious duties.” Judicial review of church supervision of those duties would entangle the courts in ecclesiastical disputes “the First Amendment does not tolerate.” The duties of the teachers “implicated the fundamental purpose of the exception.” Because determining whether a person “is a co-religionist” would be difficult if not impossible in a secular court, that the teacher may not be a member of the religion about which the school was formed would not be determinative. While seemingly called for by the Concurrence, deference to the religious employer’s “good faith claims that a certain employee’s position is “ministerial” may be a factor but probably is not the stand alone test. The Dissenters interpreted the opinion of the majority as boiling the Ministerial Exception down to a single inquiry: whether the church “thinks its employees play an important religious role.” Likewise, it may be a factor but does not appear to be the standalone test adopted by the majority opinion.
Church schools should in their contracts, employee handbooks and other school governance documents make it explicit that teachers are expected to engage in religious training of students. Such descriptions should be sufficiently detailed to convey the core mission of the school is met by the religious instructional program to be administered by the teachers but not so overstated that litigant former employees will point to it as proof they were not intended to be considered in its scope. Employees that do not have religious instructional duties or similar duties may still be eligible to assert federal employment law claims. Overreaching attempts to include such employees in the Ministerial Exception’s reach will likely not be successful. However, all church school employees can be subjected to a Code of Conduct employment provision that requires life style and other compliance with religious tenants of the school. Such provisions should be acknowledge in writing upon hiring by the employees.