Religious organizations often look to hire employees that share the organization’s religious beliefs and are willing to abide by its religious standards. But when employees abandon those beliefs or buck the standards, conflicts inevitably occur. And often those conflicts escalate into lawsuits.
Defending against an employment discrimination suit can cost religious organizations tens of thousands of dollars and a tremendous amount of aggravation and inconvenience. Fortunately, as several recent cases have highlighted, many such cases can be avoided or resolved earlier if more attention is given to the organization’s employment policies and job descriptions on the front end.
The First Amendment to the United States Constitution provides religious organizations the absolute right to choose their own ministers without government interference.[1] This right is referred to as the ministerial exception and bars ministers from suing their religious employers for employment discrimination. The ministerial exception is based on the well-established constitutional principle that religious organizations must be completely free to decide their own doctrine, their terms of membership, and who they want to serve as ministers. While that principle may not be controversial, the million-dollar question is—which employees qualify as ministers?
In 2019, the Seventh Circuit Court of Appeals analyzed this issue in a suit involving a church organist. Sterlinski v. Catholic Bishop of Chi., No. 18-2844, 2019 U.S. App. LEXIS 23712, at *5-7 (7th Cir. Aug. 8, 2019). In Sterlinski, the government argued that the organist’s job was not sufficiently religious to qualify as a minister, and the organist claimed he was just a musician. The Church countered that his music was vital to the Church’s services regardless of how he felt about the music he was playing. Ultimately, the Seventh Circuit found for the Church and wrote, “If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization.” Id.
In 2022, the Seventh Circuit revisited this issue in a suit involving a guidance counselor at a Catholic high school. Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc., No. 21-2524, 2022 WL 2980350 (7th Cir. July 28, 2022). Ms. Starkey had violated the Catholic school’s religious beliefs and standards by entering a same-sex union—even though she had agreed to abide by those beliefs and standards when she accepted the position. After she lost her job, she sued for employment discrimination and tortious interference with her contract and employment relationship. In finding for the school, the Court looked at her job description, her employment agreement, and the responsibilities with which she was entrusted by the school. Because all these factors made plain the ministerial role guidance counselors serve at the school, the Court determined that it could not hear any of Ms. Starkey’s claim. The Court reiterated that the ministerial exception is “not limited to the head of a religious congregation” and that courts will look to many different factors to assess whether the employee serves in a ministerial role.
On July 12, 2023, the Seventh Court issued yet another ministerial exception decision in Fitzgerald v. Roncalli High Sch., Inc., No. 22-2954, 2023 WL 4528081 (7th Cir. July 13, 2023). Because the Fitzgerald case involved another guidance counselor at the same high school that was sued in the Starkey case, the facts and outcome were the same. Like Ms. Starkey, Ms. Fitzgerald was found to be a minister because her job involved providing a measure of religious leadership and entailed other important religious duties and activities, including conveying religious teachings and beliefs to others.
While the majority decision in the Fitzgerald case charted no new ground regarding the scope of the ministerial exception, the concurring opinion written by Judge William Brennan highlighted a statutory exemption that could help religious employers and the courts avoid this constitutional question altogether. Id. at *4–6. As Judge Brennan points out, Section 702(a) of Title VII should be read to exempt religious employers Title VII liability if they can demonstrate that the “adverse employment decision was made because the relevant [employee’s] beliefs, observances, or practices did not conform with the employer’s religious expectations.” Id. The employee would then have to show that the religious reason given by employer was actually “a pretext for discrimination on a basis other than religion.” Id.
In light of these recent decisions, it is critically important for religious organizations (churches, religious schools, and ministries of all kinds) to review their employment policies, job descriptions and internal procedures to clarify which employees are being entrusted with a ministerial role and be familiar with their rights under federal law. At Dalton & Tomich, we have helped religious organizations review their employment decisions, policies, and procedures to help them better understand the ministerial exception and where they may be subject to liability. If you would like us to help your religious organization, please feel free to contact us.
[1] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 194–95 (2012).
