When Are Church Employment Practices Subject to the ADA?

Understanding the church’s employer duties and avoiding potential landmines.

A church office manager has been slipping in job performance lately and has taken many days off for doctor’s appointments. When confronted by the supervisor, the employee admits to struggling at work due to life circumstances and feeling depressed. The supervisor warns the employee to improve job performance or else termination may be necessary. As time passes, the employee’s performance continues to decline. The employee takes more time off from work, and sends the church an email from her doctor requesting four weeks off to recover from depression. The church’s business administrator doubts the office can operate effectively for that long without the office manager. The next day, the church terminates her for poor job performance.

The church is sued by the office manager for disability discrimination and failing to accommodate her disability of chronic depression. In disbelief, the executive pastor of the church tells an employment attorney he did not know the employee was disabled and that the reason for termination was poor job performance. The church is surprised to hear that it could be found liable, even if it did not have actual knowledge of the office manager’s disability. Where did the church go wrong?

Disability discrimination is a growing and highly litigated area of employment law. In 2016, about a third of the charges filed by individuals with the US Equal Employment Opportunity Commission (EEOC) were for disability discrimination—the highest ever for this protected class. Of the protected classes (race, sex, national origin, color, age, and disability), disability accounted for the second highest amount of charges with the EEOC, falling just behind the class of race. In my experience, such claims often result from a lack of understanding by employers of their legal obligations. Below I address these legal obligations for churches and the landmines to avoid in order to prevent these types of claims.

How the ADA May Apply to Your Church

Your church may be required to comply with the Americans with Disabilities Act (ADA). In the employment context, disability discrimination under federal law is prohibited by the ADA, though many states also prohibit such discrimination under state law. Under the ADA, the church is considered an “employer,” and thus required to comply with the ADA, if it (1) has 15 or more employees and (2) affects interstate commerce.

The church will meet the 15-employee threshold if it has at least 15 employees for each working day in each of 20 or more calendar weeks in the current or preceding year. The focus is on the number of employees on payroll as opposed to those actually working on a given day.

Regarding the effect on interstate commerce, only a minimal amount of activity is needed to trigger the ADA. Thus, activities such as using interstate communications, soliciting out-of-state employee applicants, or receiving out-of-state donations can be considered sufficient. A church should not make a determination about whether its activities affect interstate commerce without the assistance of legal counsel.

The church has some protections, though not absolute. Even if the ADA applies, the church is afforded two religious-based exceptions from its application. As demonstrated in the US Supreme Court’s unanimous decision in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission in 2012, under the “ministerial exception,” a discrimination claim by an employee will be dismissed if the church can successfully prove, as an affirmative defense, that the employee is a minister of the church. In fact, the employee in Hosanna-Tabor alleged an ADA claim for retaliation based on disability. In addition to the ministerial exception, a church may require its employees to conform to its religious tenets. However, with the exception of ministers, applicants or employees who satisfy the religious criteria and are otherwise qualified for a position may not be discriminated against on the basis of disability.

LANDMINE: The Church’s Obligations under the ADA Extend Beyond Not Engaging in Discrimination

A church subject to the ADA should not take comfort in dismissing the law as having little relevance to it so long as the church does not engage in what it considers to be discrimination. This could be a grave mistake. In addition to the prohibition on disability discrimination, which is quite complex (as demonstrated below), employers have a duty to provide a reasonable accommodation for an employee’s disability, and a duty to engage in a good-faith interactive process to identify reasonable accommodations. Failure to comply with these additional duties is often the culprit behind a disability discrimination lawsuit. The cost of such a suit could be more than a church could afford, as it may potentially be liable for punitive damages and attorney’s fees in addition to other damages. These additional duties are addressed in further detail below.

LANDMINE: “Disability” Means More Than It Seems

To establish disability discrimination, the three prongs an employee must show is he or she: (1) has a “disability”; (2) is a “qualified individual” capable of performing the essential functions of the job either with or without reasonable accommodation; and (3) was unlawfully discriminated against because of his or her disability.

Far too many church leaders have a very limited understanding of what qualifies as a “disability.” Under the ADA, disability has three possible definitions: (1) a physical or mental impairment that substantially limits one or more major life activities; (2) having a record of such impairment; and (3) regarded as having such an impairment. The first aspect of the definition deals with physical or mental impairments. Some examples of impairments typically considered disabilities under the ADA include major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, autism, cancer, and diabetes. Though this list is not exhaustive, these impairments have been highlighted because they might not be as apparent compared to other disabilities. Even though some conditions are usually categorized as a disability, a disability is not limited to certain diseases or diagnoses, but rather can consist of virtually any impairment so long as it substantially limits a major life activity. The term “major life activity” is broadly defined, and includes walking, learning, reading, speaking, thinking, communicating, and working, to name a few.

Returning to the scenario at the beginning of this article, did the office manager have a disability—a physical or mental impairment that substantially limits a major life activity? We know the employee told the church she was depressed, and that her doctor’s note notified the church of the employee’s need to take four weeks off from work for depression. The employee would likely allege that her depression was a mental impairment that substantially limited her ability to work. The church might argue that the employee’s depression did not substantially limit her ability to work. However, such a determination may ultimately be left to a jury. A church might not be comfortable taking such a gamble. The church may also try to argue that it was not aware of the condition of “chronic depression,” but that it was merely informed the employee was depressed—a common emotion. However, the employee can address this in two ways. One, she may say that the conditions of her disability were so obvious that the church cannot reasonably claim it did not have knowledge of it. Two, she may allege that the church “regarded” her as having a disability, which falls under the definition of disability.

“Regarded as” being disabled is still disabled. An individual may have a disability if he or she is regarded as having a mental or physical impairment, regardless of whether or not the said impairment limits, or is perceived to limit, a major life activity. Since the “substantially limits” requirement is not part of this definition as it is in the first two parts of the disability definition, the employee has a lower burden to meet when alleging a perceived disability. In addition, the employer need not have actual knowledge of the impairment, nor is the employer required to be accurate in its perception! Returning to our scenario, the church might be held liable if it perceived the employee as having a disability, such as chronic depression.

One exception might come to the church’s rescue in this scenario. Minor and transitory impairments having an expected duration of six months or less do not qualify for the “regarded as” part of the disability definition. In our scenario, the employee’s condition was likely perceived for six months or less (if at all). Thus, the church may be able to successfully defend against such an argument. The “regarded as” part of the disability definition should cause churches to evaluate what they objectively perceive about an employee’s condition before they take an adverse employment action (e.g., termination, discipline, demotion, and so on).

Finally, even if an individual does not currently have an impairment, that individual may have a “disability” if he or she has a “record” of a mental or physical impairment that substantially limits a major life activity. A “record” includes having a history of such an impairment, or the employer incorrectly believing such a history exists. Thus, if an applicant or employee currently has no impairment, but recovered months ago from such an impairment–such as cancer or a heart attack–there may be a “record.” The concern Congress had that led to this aspect of the law is that an employer may be worried about the impairment occurring again, or is concerned about future health benefit costs, and may unfairly target the employee as a result. Thus, churches should evaluate what is known about an employee’s medical history before it takes an adverse employment action.

LANDMINE: Performing Essential Functions with Reasonable Accommodation

In addition to alleging having a disability, an individual must demonstrate he or she is a qualified individual capable of performing the essential functions of the job either with or without reasonable accommodation. To determine whether an individual is qualified, the employee must both possess the requisite skills and be capable of performing the “essential functions” of the position.

Returning to our scenario, the church might argue that the office manager does not satisfy her claim because she could not do the essential functions of her job, which required her to be physically present and adequately manage the church’s office affairs. But that is not where the inquiry ends. The proper inquiry is whether the employee can perform the essential job functions with or without reasonable accommodation. The office manager would argue that had she been provided the reasonable accommodation of four weeks of leave, she would have been able to perform her essential job duties. Providing leave from work is considered a form of reasonable accommodation. If an employee cannot perform the essential job functions, even with reasonable accommodation, the employee has no discrimination claim. Thus, to prevent a discrimination argument, churches should be sure to have job descriptions for each position that detail the requisite skills and essential job functions.

LANDMINE: Discrimination Extends Beyond Termination

We finally arrive at the third and final prong for a discrimination claim. Employers are prohibited from discriminating against an individual on the basis of a disability with regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Thus, it is important to note that discrimination can be found, even if the employee is not terminated. For example, reducing hours or demoting the employee may result in discrimination. In addition, failure to provide a reasonable accommodation when there is a duty to do so is considered a form of discrimination.

LANDMINE: Retaliating Against an Employee Requesting Leave

In addition to a disability discrimination claim, an employer may be found liable for retaliation—taking adverse action against an individual as a result of the individual engaging in an activity protected by the ADA (e.g., requesting a reasonable accommodation). An individual does not necessarily have to be disabled to succeed on a retaliation claim. In our scenario, the church could be found liable for retaliation for terminating the office manager a day after her request for leave, especially because the short amount of time between the two events may imply a retaliatory intent.

LANDMINE: Neglecting the Duty to Provide a Reasonable Accommodation

As a separate duty, the employer must provide a reasonable accommodation to disabled individuals, which includes employees and applicants. Unless the employer can show an undue hardship, the employer must make reasonable accommodations to enable an employee or applicant with a known disability to perform a position’s essential functions and enjoy benefits and privileges equal to those enjoyed by nondisabled employees. Whether an accommodation is “reasonable” may be a question for a jury. Examples of reasonable accommodations could include the following: making existing facilities readily accessible to and usable by the disabled individual, job restructuring, modified work schedules, and unpaid (or paid) medical leave. Please note that there is an exception for individuals considered to have a disability under the “regarded as” part of the disability definition. The duty to provide a reasonable accommodation does not extend to individuals merely “regarded as” having a disability.

Under our scenario, the employee could argue that all she needed was four weeks of unpaid medical leave as a reasonable accommodation. The church will have difficulty rebutting this if it did not engage in a good-faith interactive process or did not adequately analyze whether the leave would constitute an undue hardship (both addressed below).

LANDMINE: Proving an Undue Hardship, Not Merely Asserting It

The employer’s duty to provide a reasonable accommodation does not extend to accommodations that would impose an undue hardship on the operation of the business. However, this is an affirmative defense where the employer must prove that the reasonable accommodation would require significant difficulty or expense in light of several factors, including, but not limited to, the nature, cost, and effects of the accommodation on business functions, the facilities involved, and the nature, size, operations, and financial resources of the employer. An employer cannot simply assert that a needed accommodation will cause undue hardship, but it must present evidence and demonstrate that the accommodation will, in fact, cause it undue hardship. In our scenario, the church jumped the gun and presumed that allowing four weeks of unpaid leave would cause an undue hardship, but the church did not engage in a thorough analysis to make that determination.

LANDMINE: Neglecting the Duty to Engage in a Good-Faith Interactive Process

Just as important as the other duties, the employer has a duty to engage in a good-faith interactive process to identify reasonable accommodations for the employee. To comply with this duty, it is critical to understand the nature of the duty, how it is triggered, and what is required of the employer.

The employer’s duty may be triggered by the employee’s request for a reasonable accommodation or upon the employer becoming aware of its potential necessity, regardless of the source. When an employee makes the request, the employee need not use magic words like “reasonable accommodation” or reference the ADA. The employer does not need to know the specific name of the employee’s condition for the duty to be triggered.

Once the employer’s duty is triggered, the employer must initiate an informal, interactive process with the employee to determine the nature of the accommodation necessary to enable the employee to perform the position’s essential functions. This process requires communication and good-faith exploration of possible accommodations. Furthermore, the employer’s duty is ongoing and is not exhausted by one effort or the rejection or failure of an initial accommodation.

LANDMINE: Failing to Assess and Document Proposed Accommodations

When assessing a potential accommodation, the employer must (1) analyze the particular job involved and determine its essential functions, (2) consult with the disabled individual to ascertain the precise job-related limitations and how a reasonable accommodation could overcome those limitations, (3) identify potential accommodations and assess their effectiveness in enabling the individual to perform the essential functions of the job, and (4) consider the individual’s preference and select and implement the accommodation most appropriate for both the employer and the individual. Communications to the employee about potential accommodations should be documented in writing. In addition, the church should document every step taken to demonstrate its good faith in engaging in the interactive process, as well as the assessment of all potential accommodations.

Returning to our scenario, the office manager might argue that the church’s duty to engage in an interactive process was triggered once it first became aware of the employee’s depression when she was confronted by the supervisor. The employee has an even stronger argument that the church’s duty was triggered once it received the email from her doctor requesting four weeks off to recover from depression because it became aware of the need for a reasonable accommodation. The church did not have to be notified by the employee directly and did not have to be told that the exact nature of the disability was “chronic” depression. The employee would argue this was enough information to make the church aware of the necessity to initiate the process to try to reasonably accommodate the disability. The church clearly failed to engage in an interactive process by terminating the employee instead of evaluating the requested accommodation. Even if the church determined, after proper assessment, that the four weeks of leave were unreasonable or an undue hardship, it should have attempted to propose alternative accommodations to the employee.

LANDMINE: Confusing the ADA with the Family and Medical Leave Act (FMLA)

All too often, employers terminate employees merely because the employee’s medical leave exceeds the 12 weeks of protected leave provided under the Family and Medical Leave Act (FMLA). This is folly and an invitation for a lawsuit because the employer is still required to comply with its duty under the ADA to engage in the interactive process and provide a reasonable accommodation, regardless of whether the leave exceeds 12 weeks.


In summary, there are many landmines churches must avoid to prevent an ADA claim. Even Fortune 500 companies with the largest HR departments have difficulty complying with the ADA. There is hope for the church. When church leaders become aware of some of the landmines, they can take proactive measures to be ready for when a duty under the ADA arises. One step churches can take is to designate and train an individual to facilitate ADA duties.

Although an attempt was made to be as informative as possible, this article does not exhaustively address every issue under the ADA and is not to be construed as legal advice. To alleviate the risk of such claims, consult with an employment attorney. Much can also be prevented by following the great commandment to “love thy neighbor as thyself.”

What if the ADA doesn’t apply to your church?

Smaller churches that do not qualify as an “employer” under the ADA may still want to consider some nonlegal reasons for qualifying with the spirit of the law. How a church deals with its employees can affect its witness, especially if people perceive a disabled employee was mistreated. The ADA ensures that employers do not discriminate against disabled employees, and that they engage in good-faith communications with a disabled employee to find a reasonable accommodation to allow the employee to do his or her job. If a church does not engage in such a practice for its disabled employees, it may leave the impression that the ADA or a secular employer is more compassionate than the church. Not only would many churches want to avoid that perception, but they would desire going above and beyond the minimum legal standard in demonstrating compassion and love for their disabled employees. Using the ADA as a guide would provide the church the opportunity to apply the great commandment to love its neighbor. Following that commandment in general would help prevent many employment disputes. If a church decides to use the ADA as a guide for its disability policies, it should ensure it has documented, such as in its handbook distributed to employees, that it is not waiving any rights or protections it enjoys under the law.

For more information on complying with the ADA, see
Pastor, Church & Law
in our Legal Library.

Steven Adamian is a California attorney who enjoys counseling nonprofit organizations and businesses in risk management. He is based in the Los Angeles area.

This content is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. "From a Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations." Due to the nature of the U.S. legal system, laws and regulations constantly change. The editors encourage readers to carefully search the site for all content related to the topic of interest and consult qualified local counsel to verify the status of specific statutes, laws, regulations, and precedential court holdings.

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