Court Applies “Ministerial Exception” to Church Discrimination Case

Employee discrimination claim left to church’s decision.

Church Law & Tax Report

Court Applies “Ministerial Exception” to Church Discrimination Case

Employee discrimination claim left to church’s decision.

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

Key point 8-12.1. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

Key point 8-12.4. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. The Act permits religious organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

A California appellate court ruled that it was barred by the “ministerial exception” from resolving the discrimination claims of a church preschool director who was terminated on the basis of her decision to live with her boyfriend without the benefit of marriage. A preschool operated by a Lutheran church required its teachers to sign a document prior to the start of each school year setting forth professional expectations. The preschool director (the “plaintiff”), who had teaching responsibilities, was required to sign the form. The plaintiff knew the school was “Bible-based.” Although teachers were not required to attend the church, or be Lutheran (the plaintiff is Catholic) they were required to be practicing Christians “involved in a church-based setting on a regular basis.”

The parents of students did not have to be Lutherans, but they, too, had to be practicing Christians.

As director of the preschool, the plaintiff made the classroom arrangements, helped hire teachers, and scheduled their hours and classroom assignments. She also processed the applications for incoming students and made sure the school complied with state mandates. Every week she gave a tour of the preschool to parents of prospective students. During the tour she talked to the parents about the “Christian-based, Bible-based values of the school.” She wanted the parents to understand that if they sent their children to the school, they could expect their children to receive a “Christian education” and Biblebased “Christian values.”

Every week the teachers participated in devotions. They read from a devotional book, took prayer requests from the group, and prayed for each other. As a teacher, the plaintiff taught religion to the preschoolers as a part of the regular curriculum. She spoke to the children about Jesus on a daily basis. Two or three times a week she taught a Bible story in conjunction with the theme being taught that week. The plaintiff claimed that the Christian themes she introduced related to Christianity in general and “not specifically to Lutheran doctrine or teachings.” On occasion when the need to discipline a child arose, she would “bring in some theme from a Bible story or a teaching of Christianity.”

Every Wednesday the preschool classes and their teachers attended chapel for about half an hour. The plaintiff was in charge of the chapel service three to four times a school year. The responsibility of reading a Bible story or performing some other act of religious teaching during chapel rotated among the teachers. The plaintiff led her class in prayer each day: at the beginning of each day, before each meal, and at the end of each day. The plaintiff estimated she spent one hour a week teaching religion, another hour leading the children in prayer, and the remainder of the time she spent teaching—other than those times she was in charge of the chapel service—was spent on “secular subjects, including such things as: numbers and counting; the alphabet and letter concepts; basic science; small motor control; large motor control; social, emotional, physical and language skills; and computer skills.”

The plaintiff was married when she applied to the school for a teaching position. She subsequently divorced and gave birth to a child fathered by her boyfriend. While she was pregnant, she told representatives of the church that she intended to get married, but was not ready to do so just yet. She returned to the school for the following school year. She stated that she believed the school would not punish her for having had a baby out of wedlock. She lived with her boyfriend prior to having the baby, but did not know whether the principal of the school was aware they were living together.

Eventually, the church’s pastor met with the plaintiff. They discussed her living with her boyfriend and he asked whether she intended to marry him. The plaintiff said she and her boyfriend intended to get married, but did not know when. She understood that her living arrangement was “contrary to the religious and moral beliefs of the church.” The plaintiff knew before she became pregnant that living with boyfriend was contrary to the teachings of the Bible.

The school terminated the plaintiff’s employment for living with her boyfriend and raising their son together without being married, a “failure to adhere with the professional expectations of the teaching staff in that her living arrangements were contrary to the religious beliefs of the church and school.”

The plaintiff sued the church, alleging that the church terminated her employment based upon her marital status, in violation of Title VII of the Civil Rights Act of 1964. The court entered judgment in the church’s favor on the ground that the church is a religious institution, and that the plaintiff’s employment was terminated because she violated a church precept. The plaintiff appealed.

Title VII

The plaintiff insisted that “the law does not allow the church to discriminate against non-ministerial employees based on gender or marital status.” But the court pointed out that Title VII does not bar employment discrimination based on marital status, and that the plaintiff failed to cite any law declaring a public policy against marital status discrimination.

The trial court found the church terminated the plaintiff’s employment because she violated a church precept. According to the church, the plaintiff’s employment was terminated not because she had a baby out of wedlock, and not because she remained unmarried, but because she continued to live with her boyfriend in a sexual relationship while unmarried. The court concluded that the evidence supported the church’s position:

After the plaintiff’s marriage ended, she lived with her boyfriend and became pregnant. There is no evidence the school’s principal or the church knew of the plaintiff’s living situation at that time. The church did not terminate her employment for being pregnant. Neither did it fire her when she had the baby out of wedlock. In fact, she gave birth to her son in June 2007 and went back to teaching at the beginning of the next school year, 2007-2008. The plaintiff testified she knew she would not be punished for having had a baby. It was only at the end of 2008, when the principal became aware that parents of children at the school knew of and were talking about the plaintiff living with her boyfriend and raising their child out of wedlock, that the plaintiff was informed by the school that she had to make a choice. The plaintiff knew she was expected to live by the teachings of the Bible and that her living arrangement was “contrary to the religious and moral beliefs of the church.”

Had the plaintiff decided to marry her boyfriend, the church would have been satisfied. But the church would also have been satisfied and the plaintiff would have kept her job even if she decided against marrying him. She could have moved out of their shared residence. In fact, after the plaintiff explained to the school board her hesitancy to remarry, one of the school board members specifically asked her, “Why do you have to live with him?” What the church could not allow was to have the plaintiff, its face and representative to the students and parents of the students who attended its school, to continue living in what it considered a sinful manner. In other words, if the plaintiff stopped living with her boyfriend she could continue in her job. That being the case, the evidence at trial indicates her employment was terminated based upon a matter of religion, not her sex and not her having had a baby out of wedlock.

The court noted that Title VII bans employment discrimination based on race, color, national origin, gender, and religion, but exempts religious organizations “from Title VII liability on the basis of religious discrimination.” Under Title VII’s religious exemption, “the decision to employ individuals of a particular religion … has been interpreted to include decisions to terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” The court continued:

Whereas a religious organization’s termination of an employee’s employment for becoming pregnant would violate Title VII, terminating the employment because the employee committed adultery—a violation of the religious organization’s requirement that the employee live a life in conformity with the fundamentalist beliefs of the church would not be a violation. In this case, the evidence at trial supports a finding that the plaintiff’s employment was terminated because she was living with her boyfriend in a sexual relationship and was raising their child in that living arrangement, and not because she was a woman or became pregnant or had a baby out of wedlock. As the plaintiff admitted on cross-examination, she understood that “living with [her] child’s father and not being married was contrary to the school and church’s expectation of [her] as a Christian, setting a Christian role model.” The judgment in favor of defendant does not violate any public policy rooted Title VII.

the ministerial exception

The court next addressed the church’s claim that the “ministerial exception” barred civil court resolution of the plaintiff’s claims. The court explained the ministerial exception as follows:

The ministerial exception doctrine is based on the notion a church’s appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and termination of employment, is an inherently religious function because clergy are such an integral part of a church’s functioning as a religious institution. Therefore, secular courts will not attempt to right wrongs related to the hiring, firing, discipline or administration of clergy. Implicit in this statement of the rule is the acknowledgment that such wrongs may exist, that they may be severe, and that the administration of the church itself may be inadequate to provide a remedy. The preservation of the free exercise of religion is deemed so important a principle as to overshadow the inequities which may result from its liberal application. In our society, jealous as it is of separation of church and state, one who enters the clergy forfeits the protection of the civil authorities in terms of job rights.

Dismissing an Employee for Violation of a Church’s Moral Teachings

Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:

  1. Is there sufficient evidence to support our decision?
  2. Did we inform the employee, in an employee handbook or other document, that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?
  3. How will we describe the basis for our decision? The best description will refer to the church’s doctrinal tenets, and scriptural citations. Stay away from words such as “pregnancy” that can have a “secular” meaning, and that diminish the “religious exemption” available to churches under most federal and state civil rights and employment laws.
  4. How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally? Or, have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations, but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that an employee who is protected against discrimination by state or federal law is not treated less favorably than other employees in previous cases.
  5. Have we consulted with an attorney before taking final action?
  6. The court explained that the ministerial exception is not limited to churches, but extends to “church-related institutions which have a substantial religious character,” including church-affiliated schools. Further, the exception is not limited to members of the clergy, but encompasses “all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.” The court concluded that the ministerial exception applied to the plaintiff, and barred consideration of her claims. In particular, it noted that the plaintiff: (1) led the students in prayer at the beginning and end of each day and before each meal; (2) was responsible for leading chapel up to four times a year; (3) regularly taught religion in her classes, including secular classes; (4) participated in weekly devotions with the staff at which they would read a devotional-type book and then take prayer requests and pray for each other; (5) led staff prayers; and (6) conducted tours for parents of student applicants, assuring them of the school’s Christian atmosphere. The court concluded: “The minister is the chief instrument by which the church seeks to fulfill its purpose …. One such purpose is to bring people to the church. The plaintiff fulfilled that function by teaching her preschoolers religion, leading them in prayers every day, and leading chapel services. She taught religion and spread the faith. We find the ministerial exception applies in this matter.”

    What This Means For Churches:

    This case is significant for the following reasons.

    First, it illustrates the importance of accurately describing the basis for terminating an employee. As this case illustrates, there is a critical legal difference between dismissing an employee on account of pregnancy (even if out of wedlock) and dismissing an employee on account of adultery (of which pregnancy is merely evidence). The court acknowledged that dismissing a pregnant employee on account of adultery is permissible under Title VII, though dismissing an employee on account of pregnancy is not. It does not matter that pregnancy out of wedlock violates a church’s religious teachings and values. Title VII does not exempt churches from discrimination based on pregnancy. It does exempt churches from discrimination based on adultery. The takeaway point is the importance of correctly and adequately describing the basis for employee terminations and discipline. To avoid confusion, religious organizations that take an adverse employment action against an employee or applicant for employment as a result of the organization’s moral teachings should word their determination with references to relevant passages from scripture and church doctrine. This will make it more likely that a court will view the decision as a protected form of religious discrimination.

    Second, a number of courts have ruled that Title VII’s exemption of religious organizations from the ban on religious discrimination in employment does not apply if a religious organization uses religion as a “pretext” to discriminate against a member of a protected class. This is a very important qualification. Religious organizations can discriminate in their employment decisions on the basis of religion, but they must be consistent. To illustrate, a church that dismisses only female employees on the basis of extramarital sexual relations could not justify this practice on the basis of the Title VII exemption.

    Third, note that most churches are not subject to Title VII, which only applies to employers that have 15 or more employees and are engaged in interstate commerce. However, many states have their own versions of Title VII, and some churches will be covered under these laws. Fortunately, most of them (like Title VII) exempt religious employers from discrimination based on religion. Some exempt religious employers from all the discrimination prohibitions. Evangelical Lutheran Church, 134 Cal.Rptr.3d 15 (Cal. 2012).

    Key point 8-09.1. Many federal employment and civil rights laws apply only to those employers having a minimum number of employees. In determining whether or not an employer has the minimum number of employees, both fulltime and part-time employees are counted. In addition, employees of unincorporated subsidiary ministries of a church are counted. The employees of incorporated subsidiary ministries may be counted if the church exercises sufficient control over the subsidiary.

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