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.
A federal appeals court ruled that it was barred by the “ministerial exception” from resolving a sex discrimination claim by a former employee of a Christian campus ministry. InterVarsity Christian Fellowship/USA (IVCF) is “an evangelical campus mission serving students and faculty on college and university campuses nationwide,” whose vision is “to see students and faculty transformed, campuses renewed and world changers developed.” IVCF’s purpose “is to establish and advance at colleges and universities witnessing communities of students and faculty who follow Jesus as Savior and Lord: growing in love for God, God’s Word, God’s people of every ethnicity and culture and God’s purposes in the world.”
IVCF “believes in the sanctity of marriage and desires that all married employees honor their marriage vows.” It is part of IVCF’s policy that “where there are significant marital issues, IVCF encourages employees to seek appropriate help to move towards reconciliation” and IVCF reserves the right “to consider the impact of any separation/divorce on colleagues, students, faculty, and donors.”
IVCF hires only candidates who agree with its Statement of Agreement: Purpose and Doctrinal Basis.
A woman (the “plaintiff”) began working for IVCF in 1986. In 1988, she married. From 2004 to 2011, the plaintiff was a “Spiritual Formation Specialist” for IVCF staff members, and obtained a certification in Spiritual Direction. Her duties included assisting others to cultivate “intimacy with God and growth in Christ-like character through personal and corporate spiritual disciplines.
In March of 2011, the plaintiff and her husband were considering divorce, and, as required by IVCF policy, she informed her supervisor. Her supervisor placed her on paid leave in an attempt to repair her marriage, as authorized by IVCF policy. The plaintiff claimed her repeated requests to return to work were denied. Her employment was terminated in December of 2011 for “failing to reconcile her marriage.” At that time the plaintiff was still married. She claimed that two or more similarly situated male employees divorced their spouses during their employment, but were not disciplined or terminated. In January 2012, the plaintiff’s husband filed for divorce.
Shortly after her termination, the plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC). The EEOC gave her a right-to-sue letter that also informed her that EEOC would not be filing suit. The plaintiff filed suit in a federal district court in Michigan in 2013, alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964. IVCF filed a motion to dismiss the lawsuit, asserting the ministerial exception as an affirmative defense. The district court granted the motion to dismiss, and the plaintiff appealed to a federal appeals court.
The ministerial exception, which is rooted in the First Amendment’s religion clauses, bars the civil courts from resolving employment disputes between churches and ministers. It was explicitly affirmed by the United States Supreme Court in a 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 132 S.Ct. 694 (2012). In Hosanna-Tabor, the Supreme Court concluded that the ministerial exception prevented it from resolving a claim by a teacher in a church-operated school that her dismissal violated the federal Americans with Disabilities Act. The Court noted that the ministerial exception “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.”
The appeals court then addressed five issues, including: (1) Did the ministerial exception apply to IVCF? (2) Was the plaintiff a “minister”? (3) Did IVCF “waive” the ministerial exception?
(1) Did the ministerial exception apply to IVCF?
Did the ministerial exception apply to an organization like IVCF that was not a “church”? The court concluded that it did:
It is undisputed that InterVarsity Christian Fellowship is a Christian organization, whose purpose is to advance the understanding and practice of Christianity in colleges and universities. It is therefore a “religious group” under Hosanna-Tabor … . The ministerial exception’s applicability does not turn on its being tied to a specific denominational faith; it applies to multidenominational and nondenominational religious organizations as well … . A religiously affiliated entity is one whose mission is marked by clear or obvious religious characteristics … . That is clearly the case for IVCF, with not only its Christian name, but its mission of Christian ministry and teaching.
(2) Did the ministerial exception apply to the plaintiff?
In Hosanna-Tabor, the Supreme Court addressed a Lutheran church school’s decision to terminate a teacher and “commissioned minister” who the school believed was not able to perform her duties because of a disability. The Court held that the ministerial exception precluded the courts from entertaining claims that the teacher’s employment had been terminated because of her disability or in retaliation for her filing a complaint with the EEOC alleging disability discrimination. Though the Court did not “adopt a rigid formula for deciding when an employee qualifies as a minister,” it identified four factors that led it to conclude that the teacher was a minister covered by the exception: (1) the formal title given to her by the church, (2) the substance reflected in that title, (3) her own use of that title, and (4) the important religious functions she performed for the church.
The appeals court concluded that the plaintiff satisfied the first and fourth factors, but not the second and third, and so “two of the four Hosanna-Tabor factors are clearly present.” The Supreme Court declined to rule upon whether the exception would apply in the absence of one or more of those factors. But the appeals court ruled that “where both factors—formal title and religious function—are present, the ministerial exception clearly applies and so IVCF may assert the ministerial exception regarding the plaintiff’s former position.”
(3) Did IVCF “waive” the ministerial exception?
The plaintiff insisted that the ministerial exception did not preclude her claims because IVCF had “waived” it. She pointed to the following statement on the IVCF website:
InterVarsity Christian Fellowship/USA is both an equal opportunity employer and a faith-based religious organization. We conduct hiring without regard to race, color, ancestry, national origin, citizenship, age, sex, marital status, parental status, membership in any labor organization, political ideology, or disability of an otherwise qualified individual. The status of [IVCF] as an Equal Opportunity Employer does not prevent the organization from hiring staff based on their religious beliefs so that all staff share the same religious commitment.
The website states that all employees must annually reaffirm their agreement with IVCF’s Purpose Statement and Doctrinal Basis. The website further states: “Pursuant to the Civil Rights Act of 1964 [IVCF] has the right to, and does, hire only candidates who agree with its Statement of Agreement: Purpose and Doctrinal Basis.”
The court concluded that IVCF had not “waived” the ministerial exception since “the ministerial exception is a structural limitation imposed on the government by the [First Amendment’s] religion clauses, a limitation that can never be waived.”
The court noted that the Supreme Court’s ruling in Hosanna-Tabor forecloses such waiver, since the Court concluded that “requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church.” The Court’s clear language “recognizes that the Constitution does not permit private parties to waive the First Amendment’s ministerial exception. This constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes.”
(4) Does the ministerial exception bar discrimination claims against supervisors?
The plaintiff claimed that the ministerial exception did not prevent her from suing her supervisors for sex discrimination since they could not claim the exception. The court disagreed: “They cannot be held liable. Nothing in federal court or Michigan court precedent suggests that [supervisors] cannot claim the ministerial exception when personally sued for discrimination as the agents of a religious employer. Holding the individual decision maker liable for the very employment decision for which the organization cannot be held liable would vitiate both the purpose and the effect of the ministerial exception.”
(5) An affirmative defense
The court cautioned that the ministerial exception is an “affirmative defense” that will be lost if a religious employer fails to assert it in its response to a lawsuit.
The court concluded its opinion by quoting from the Supreme Court’s decision in Hosanna-Tabor:
The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.
What This Means For Churches:
This case is significant for these reasons:
First, it demonstrates that the ministerial exception is not limited to churches. It applies to any religious employer “whose mission is marked by clear or obvious religious characteristics.” The exception applied to IVCF not only because of “its Christian name, but its mission of Christian ministry and teaching.”
Second, the court referred to the Supreme Court’s four-factor test in deciding if an employee of a religious organization is a “minister” to whom the ministerial exception applies. And, significantly, the court concluded that the plaintiff was a “minister” even though she failed to meet the second and third factors. The court noted that she satisfied the first and fourth factors (her title and functions were clearly religious), and that “where both factors—formal title and religious function—are present, the ministerial exception clearly applies.”
Third, the court concluded that “equal opportunity” language on the IVCF website did not amount to a “waiver” of the ministerial exception, since the exception was based on the First Amendment’s religion clauses which cannot be waived.
Fourth, the court rejected the argument that individual supervisory employees can be sued for violations of state and federal nondiscrimination laws even though a religious employer cannot.
Fifth, the court noted that the ministerial exception is an affirmative defense that must be asserted in a religious employer’s formal answer to a lawsuit or it will be lost. Church leaders should review the answer prepared by their attorney in an employment discrimination case to be certain that the ministerial exception is raised as an affirmative defense. Trial attorneys with little if any experience in representing religious employers may not be familiar with the ministerial exception, or with its status as an affirmative defense that must be pleaded or lost. Conlon v. Intervarsity Christian Fellowship, 777 F.3d 829 (6th Cir. 2015).
