High Court to Weigh Bias Exemption for Religious Teachers

By Mark Walsh — March 28, 2011 3 min read

The U.S. Supreme Court on Monday agreed to decide whether a private school teacher involved in secular and religious instruction falls under a widely recognized exception to employment-discrimination laws for ministers and other church leaders.

The appeal by a Lutheran church and elementary school in Redford, Mich., was joined by a number of religious organizations and scholars, who argued that there are widely disparate rulings in the lower courts about whether religious-school teachers are subject to the “ministerial exception” to job-bias laws.

The exception, recognized by virtually every federal circuit court of appeals, bars lawsuits that interfere in the relationship between a religious organization and employees who perform religious functions. It is separate from the specific religious exemption in Title VII of the Civil Rights Act of 1964, which applies to any employee of a religious organization, but only with respect to claims of religious discrimination.

The federal appeals courts are split on the legal standard to be applied and the scope of the employees covered by the ministerial exception.

The case accepted by the Supreme Court, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (No. 10-553), involves Cheryl Perich, a 4th grade teacher at the school who got into a dispute over her return from a medical leave for narcolepsy in the 2004-05 school year.

Perich was a “called teacher” under the Lutheran Church-Missouri Synod, which meant she was trained in the church’s theology and selected for her job by voting members of the church. She taught a secular 4th grade curriculum, but also taught religion classes on some days and led devotional exercises, among other religious duties, according to court papers.

Amid the dispute over her medical leave, the church rescinded her “call,” effectively terminating her. She filed a charge of discrimination and retaliation with the federal Equal Employment Opportunity Commission, which took her side and filed a retaliation suit against the church and school under the Americans with Disabilities Act.

A federal district court ruled for the church, but in March 2010, a panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 for the teacher. The court applied a “primary duties” test, and held that Perich was not subject to the ministerial exception because she “spent the overwhelming majority of her day teaching secular subjects using secular textbooks.” The court also said that “called” and “lay” teachers at the school had primarily the same duties.

The church and school appealed to the Supreme Court with the support of the Becket Fund for Religious Liberty.

“The decision below conflicts with this court’s cases forbidding secular courts from interfering in religious disputes,” says the brief on the church’s behalf, co-written by Douglas Laycock, a prominent law and religion scholar and a professor at the University of Virginia. “The courts here have no business reinstating a commissioned minister and called teacher who teaches religion and leads children in worship.”

Among the groups filing friend-of-the-court briefs on the church’s side were the Association of Christian Schools International, the Council of Hindu Temples of North America, and the Union of Orthodox Jewish Congregations of North America.

The EEOC filed a brief urging the court not to review the case, noting that the 6th Circuit had conducted a “fact-intensive” review of Perich’s duties at the school.

“The fact that Perich led chapel twice a year in rotation with other teachers did not make her a minister for purposes of the ministerial exception, the [6th Circuit] court noted,” the EEOC brief said.

In a brief filed on behalf of Perich, her lawyer also urged the high court not to take the case, saying that religious organizations are seeking “wide leeway to avoid the federal statutory prohibitions on discrimination.”

The court will hear arguments in the case during its term that begins next October.

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A version of this news article first appeared in The School Law Blog.

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