Most churches, religious schools and ministries make employment decisions according to sincerely held religious beliefs or a set of religious standards. They seek to hire employees that share the organization’s beliefs and are willing to abide by the organization’s standards. When an employee abandons those beliefs or bucks the standards, conflicts inevitably occur. And sometimes the conflicts turn into court cases. Defending against an employment discrimination suit can cost a religious organization thousands of dollars. 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. The 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 was arguing that the organist’s job was not sufficiently religious to qualify as a minister, and the organist claimed he was just playing notes. 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.
More recently, 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 into 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.
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. 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 organization, please feel free to contact us.
 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 194–95 (2012)