Legal Developments

Termination of a “Whistleblower”

A court cannot intervene in the firing of a ministerial employee.

Richard R. Hammar, Attorney, CPA
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Church Law & Tax Report

Termination of a “Whistleblower”

A court cannot intervene in the firing of a ministerial employee.

Richard R. Hammar, J.D., LL.M., CPA

A Michigan court ruled that the “ministerial exception,” which bars the civil courts from resolving employment disputes between churches and ministers, applies to whistleblower complaints. A parochial school employed a woman to teach math and religious studies for eight years. After a series of employment-related incidents, none of which involved the subject of religion, the school terminated the teacher’s employment. She later sued the church and school (the “defendants”) for violating a state law protecting “whistleblowers” from retaliation or other adverse employment actions. The defendants asserted that the teacher was a “minister” for purposes of the ministerial exception, and therefore the court was required by the First Amendment to dismiss the lawsuit.

A state appeals court described the ministerial exception as a “constitutionally compelled exception to the application of employment-discrimination and civil rights statutes to religious institutions and their ‘ministerial’ employees.” It concluded that the teacher was a “minister” for purposes of the ministerial exception, and that the exception applied to whistleblower complaints: “The ministerial exception, as we conceive of it, operates to bar any claim, the resolution of which would limit a religious institution’s right to select who will perform particular spiritual functions …. Accordingly, we hold that the ministerial exception may be applied to [whistleblower] claims that involve a religious institution and a ministerial employee.”

The court acknowledged that “it seems unjust that employees of religious institutions can be fired without recourse for reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated reporters. However, to conclude otherwise would result in pervasive violations of First Amendment protections.”

The court stressed that the ministerial exception does not necessarily shield employment disputes from judicial scrutiny in cases not involving termination of ministerial employees. However, at the core of the ministerial exception are cases, such as this one, that involve the termination of a “ministerial” employee. Termination of a ministerial employee by a religious institution “is an absolutely protected action under the First Amendment, regardless of the reason for doing so.” Weishuhn v. Lansing Catholic Diocese, 787 N.W.2d 513 (Mich. App. 2010).

This Recent Development first appeared in Church Law & Tax Report, March/April 2011.

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