Seyfarth Synopsis: In Biel v. St. James School, the Ninth Circuit once again split from other circuit courts, this time by narrowly construed an affirmative defense known as the "ministerial exception" that bars claims of employment discrimination brought by ministerial employees of religious institutions. The Ninth Circuit recently denied the request for a rehearing en banc, entrenching its departure from other circuits on the ministerial exception.
The U.S. Supreme Court previously held that under the First Amendment's protection of freedom of religion, the government cannot interfere with "decision of a religious group to fire one of its ministers." If this ministerial exception applies, then discrimination laws would generally not apply to termination decisions by religious groups.
For the ministerial exception to apply, the key question is whether an employee actually qualifies as a "minister." This is the question taken up by the Ninth Circuit.
The Supreme Court's Ministerial Exemption Test
In Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., the Supreme Court examined four "considerations" to determine whether an employee is a "minister" and could be subject to the ministerial exception:
(1) the formal title given the employee by the church;
(2) the substance reflected in that title;
(3) the employee's own use of the title; and
(4) the important religious functions the employee performs for the church, including whether the employee's job duties reflect a role in conveying the church's message and carrying out its mission.
In enumerating these considerations, the Supreme Court recognized that determining whether the ministerial exception applies in a given case will depend on all of the facts, and not necessarily just the four that caused it to conclude that the plaintiff in Hosanna-Tabor fell within the ministerial exception.
As the Ninth Circuit distinguished the facts in Hosanna-Tabor, a brief summary of the case will be helpful. Hosanna-Tabor involved a former elementary school teacher at a Lutheran school, who was diagnosed with narcolepsy and subsequently terminated. Prior to her termination, she taught a religious class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service that she led herself twice per year. In response to the teacher's claim of employment discrimination, the Lutheran school responded that this employment decision was protected under the ministerial exception. After analyzing its four key considerations for applying the ministerial exception, the Supreme Court agreed that the plaintiff qualified as a ministerial employee, and her employment claims were barred.
The Ninth Circuit's Narrow Application of the Ministerial Exception Test
In Biel, the plaintiff was also a former elementary school teacher at a Catholic school who sued her former employer after she was diagnosed with breast cancer and subsequently terminated. The plaintiff taught all academic subjects, including religion, which she taught four days per week. She also supervised and joined her students during twice-daily prayer led by students and escorted them to a school-wide monthly mass.
The Ninth Circuit found that the plaintiff did not meet the definition of "minister" under Hosanna-Tabor—concluding that the only similarity with the teacher in Hosanna-Tabor was that they both taught religion in the classroom. The Ninth Circuit took issue with the plaintiff not having any religious credentials, training, or ministerial background, and that the church did not hold out the plaintiff as a "minister" with special expertise.
The Ninth Circuit Denies Rehearing En Banc
The Ninth Circuit declined the request for a rehearing en banc. In an opinion dissenting from the denial of rehearing en banc, Judge R. Nelson voiced his concern that the Ninth Circuit's opinion improperly limits the ministerial exception to apply only when a religious organization's employee serves a significant religious function and either has a religiously significant title or has obtained significant religious training.
But the problem, according to Judge Nelson, is that "courts are ill-equipped to gauge the religious significance of titles or the sufficiency of training," especially when it comes to different religions. Judge R. Nelson notes that the first three Hosanna-Tabor factors—title, training, and how an employee holds herself out—vary widely from religion to religion. For example, the formal title "[m]inister, although commonly used in Protestant denominations, is 'rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.'"
The import of the Ninth Circuit's decision and whether it will encourage titles that value form over substance by religious institutions remains to be seen. Time also will tell whether the Ninth Circuit will remain the outlier on its narrow application of the ministerial exemption or whether the Supreme Court will step in again to further clarify the appropriate standard. In the meantime, there will likely be increased litigation regarding who is considered a "minister" in the Ninth Circuit.
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