Ministerial exception ruling could increase discrimination

The U.S. Supreme Court ostensibly struck a blow for religious freedom and church autonomy when it ruled in Hosanna-Tabor Evangelical Lutheran Church v. EEOC that a parochial school was exempt from a former teacher’s retaliation claim under the Americans with Disabilities Act.

Churches need religious liberty and the freedom to operate without governmental interference. But viewed through another lens, the Court’s decision yesterday can be viewed quite differently. The ruling could have dire consequences and give religious employers a license to discriminate.

Cheryl Perich worked as a “called teacher” at Hosanna-Tabor before taking a leave of absence for treatment of narcolepsy. She later contended that she was fired because she asserted her rights under the ADA. The school countered that Perich was a “minister” in the church hierarchy and that the so-called ministerial exception in First Amendment law precluded Perich’s employment-discrimination suit. The Equal Employment Opportunity Commission took up Perich’s cause.

Hosanna-Tabor prevailed before a federal district court, but the 6th U.S. Circuit Court of Appeals reversed that court, pointing out that most of Perich’s duties as a teacher were secular. Hosanna-Tabor took the case to the Supreme Court and won.

Writing for the Court, Chief Justice John G. Roberts Jr. said the ministerial exception applied and that it applied specifically to Perich.

Unfortunately, the Court did not explain when the exception would apply to other employees. “We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote.

He rejected the 6th Circuit’s reasoning that the exception did not apply because Perich performed mainly secular duties, spending only a short time each week on religious duties. “The issue before us,” Roberts wrote, “is not one that can be resolved by a stopwatch.”

Admittedly, the school designated Perich as a minister, she performed some religious duties in her employment and she claimed a benefit on her taxes for those earning their money “in the exercise of the ministry.”

But the decision may have ominous consequences for thousands of employees, who before this ruling may not have needed protection from employment discrimination.

Redressing employment discrimination is a compelling government interest of the highest order. It’s an undeniable reality that some employers discriminate on the basis of race, sex, age, disability and other characteristics. Some employers retaliate against employees who assert such claims. Just look at the sheer number of claims that are filed with the EEOC each year — nearly 100,000 in 2010. And that doesn’t include people who file discrimination charges in state courts under state laws rather than going to the EEOC.

Another reality is that employees at religious organizations are now more dependent than ever that their religious employers will be beneficent. The U.S. Supreme Court was not.

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