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Academic

: The Faculty Lounge

Ministerial Exception, Shministerial Exception, Part I

By Dan Filler, Laura Appleman et al.

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<a href="http://blurblawg.typepad.com/.a/6a00e54f871a9c883301287768a2f4970c-pi" style="float: left;"><img alt="Romancollar" border="0" class="asset asset-image at-xid-6a00e54f871a9c883301287768a2f4970c " src="http://blurblawg.typepad.com/.a/6a00e54f871a9c883301287768a2f4970c-800wi" style="margin: 0pt 5px 5px 0pt; width: 329px; height: 173px;" title="Romancollar" /></a> In <a href="http://www.thefacultylounge.org/2010/02/howdy-yall.html" style="font-family: Arial;">my first post</a>, I mentioned that one of my current works-in-progress addresses a doctrine known as the "ministerial exception" to Title VII employment discrimination claims. This post is the first in a series that critiques the exception. This post briefly outlines the basis and origin of the exception, and subsequent posts will outline my critique. Not to spoil the ending, but as I said, I'm not a big fan. To begin with, consider how the ministerial exception might arise. Say a church fires its minister because, in the opinion of the church leaders, the minister has behaved inconsistent with church teachings. The minister, however, claims that the church leaders really fired her because of her gender, and that the "church teachings" rationale is a pretext for gender discrimination. The minister then sues the church for gender discrimination under Title VII of the Civil Rights Act of 1964. The church moves to dismiss the minister's claim on the ground that the Religion Clauses of the First Amendment bar the minister's Title VII claim. Under the ministerial exception, the court should grant the church's motion. Since the ministerial exception applies to Title VII claims, it makes sense to work through how the text of that statute would apply to the minister's gender discrimination claim. Title VII's general prohibition on employment discrimination reads as follows: <a href="http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000---e002-.html"> 2000e-2</a>. Unlawful employment practices (a) Employer practices It shall be an unlawful employment practice for an employer- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin. The minister's claim would satisfy the requirements of subsection (a)(1): the church is an employer, the minister is an employee, <a href="http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000---e000-.html">42 U.S.C. 2000e</a> (definitions of employer and employee), and the minister claims that her employer "discharge[d]" her "because of" her "sex." The next question is whether the minister's claim comes within an exception to Title VII. The most obvious candidate is the exclusion for religious employers in <a href="http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000---e001-.html"> 2000e-1(a)</a>: This subchapter shall not apply to . . . a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. While this provision does cover churches and other religious organizations, it only exempts employment discrimination on account of the employee's "particular religion." Because our minster is alleging discrimination based on gender, and not on religion, the exemption would not apply. Could the church rely on the exclusion for bona fide occupational qualifications (BFOQ)? [I]t shall not be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . . <a href="http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000---e002-.html"> 2000e-2(e)(1)</a>. The BFOQ exception does not apply here because the church has not argued that gender is an occupational qualification for its ministers. Rather, women are eligible to be ministers, and the church claims that this particular minister, who happens to be female, was fired for conduct inconsistent with church teachings. So, the text of Title VII covers the minister's gender discrimination claim against her church. The minister should prevail if she can prove that gender was a motivating factor in the church's firing decision. <a href="http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000---e000-.html">42 U.S.C. 2000e</a><a href="http://www.law.cornell.edu/uscode/42/usc_sec_42_00002000---e002-.html">-2(m)</a>. That is, unless the church can find some other argument to avoid application of Title VII. And that is where the ministerial exception comes in. The church can point to numerous Supreme Court decisions holding that the First Amendment Religion Clauses protect so-called "church autonomy." That is, in addition to protecting an individual's right to free exercise of her religion, the First Amendment also protects the right of the church - as an entity - to organize and govern itself. For example, in Kedroff v. Saint Nicholas Cathedral, <a href="http://supreme.justia.com/us/344/94/case.html">344 U.S. 94</a> (1952), the Court struck down a New York statute that essentially selected the church's leader. As a corollary to this decision, lower federal courts have recognized that church autonomy also protects a church's right to select its ministers and similar personnel. Because a minister's Title VII claim interferes with that right, it violates the First Amendment. While the Supreme Court has never adopted the ministerial exception, every circuit to address the question has adopted some form of the doctrine. Our minister is most likely out of luck under Title VII. So, there you have it - the ministerial exception. In my next post, I will argue that the exception strips the Title VII claim from a class of victims - ministers and other similar church personnel - who are particularly vulnerable to employment discrimination. And in a later post, I will critique the circuit court arguments in favor of the exception and (surprise!) find them wanting.

Full post as published by The Faculty Lounge on February 05, 2010 (boomark / email).

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