Law360, New York (October 24, 2011, 2:00 PM ET) -- God said, "Be fruitful and multiply." But does that make a math teacher at a religious school a "minister"? The United States Supreme Court will soon decide.On Oct. 5, 2011, the U.S. Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a case that involves the application of the "ministerial exception." That exception allows religious organizations, including religious schools, to make employment decisions affecting "ministers" without being subject to anti-discrimination laws.The ministerial exception is a judicial creation rooted in the First Amendment's free exercise and establishment clauses. The Hosanna-Tabor case requires the Supreme Court to define the meaning of a "minister" and, in particular, to determine whether it can extend to a teacher at a religious school who instructed primarily on secular topics.The facts of Hosanna-Tabor are as follows: Hosanna-Tabor Evangelical Lutheran Church and School operates a church and an elementary school. It has two types of faculty: (1) limited-term "lay" or "contract" teachers and (2) for-cause "called" teachers. Called teachers must complete a course of religious study and receive a certificate of admission into the teaching ministry. They receive the title of "commissioned minister."In 2000, Cheryl Perich began work as a contract teacher but shortly thereafter changed her status to a "called" teacher. Her employment duties remained essentially the same. She taught math, language arts, social studies, science, gym, art and music. However, Perich also taught a religion class four days per week, attended a chapel with her class once a week and led her classes in prayer.In 2004, Perich went out on disability leave. The school board ultimately offered Perich a "peaceful release" agreement wherein she would release claims against the school in return for a monetary payment. When Perich refused and threatened legal action, however, the board fired her.Perich filed a charge with the Equal Employment Opportunity Commission for disability discrimination and retaliation under the Americans with Disabilities Act, and the EEOC decided to litigate the charge of retaliation on her behalf. The district court determined that Perich was covered by the ministerial exception and granted summary judgment to the school.The U.S. Court of Appeals for the Sixth Circuit reversed. It found that because most of Perich's job duties did not have a religious character, and that her "primary" functions were secular, the ministerial exception did not apply. The school appealed to the United States Supreme Court, which granted certiorari.On Oct. 5, 2011, the court heard oral arguments. The justices did not appear to reach any kind of consensus. Justices Sonia Sotomayor and Elena Kagan appeared focused on the rights of all employees to bring retaliation claims. Justice John Roberts asked whether the court could involve itself in this issue at all when some religions considered all members to be witnesses to the faith and "ministers" of sorts.Justice Stephen Breyer's questioning stood apart by appearing to suggest the ministerial exception should apply only if the employment action at issue rested on church doctrine and called upon courts to decide religious questions.The attorneys' positions were equally diverse. Counsel for the EEOC contended that the ministerial exception should not apply to retaliation claims. The assistant to the solicitor general suggested that the ministerial exception should not apply at all since schools were regulated by the state.The attorney for the school avoided articulating a precise definition of a "minister," but during his rebuttal he proposed "[a] minister is a person who holds ecclesiastical office in the church or who exercises important religious functions ... including teaching of the faith." Oral arguments ended without a clear sense as to how the justices might rule.The Supreme Court's holding in this case will prove very significant for religious schools and organizations.Michael Blacher is a partner, and David Urban is of counsel, in the Los Angeles office of Liebert Cassidy Whitmore. The firm represents public entities in labor and employment law matters and educational institutions as general and special counsel. Urban is also a contributor to the firm's California public agency labor and employment blog.The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media, publisher of Law360. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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