Change of Faith: How the Ministerial Exception Works

Churches and other religious nonprofits often require their employees be members of the faith. But an employee’s religious views may change over time. When an employee decides to leave the faith, employers may have the option of terminating their employment relationship under the ministerial exception, a legal doctrine that shields religious employers from liability under federal civil rights laws that would treat such a decision by a secular employer as unlawful discrimination.

The ministerial exception grows out of the U.S. Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694. In a nutshell, the Hosanna-Tabor ruling held that the Establishment and Free Exercise Clauses of the U.S. Constitution’s First Amendment bar lawsuits by ministers who claim that their religious employers have violated employment discrimination laws. The ruling and its subsequent uses in other cases have a number of important takeaways for religious employers:

• The complex definition of “minister.” The employee in the Hosanna-Tabor lawsuit was a lay teacher at a religious elementary school. The Court held that she was a “minister” within the scope of the ministerial exception because she had undergone theological training to qualify as a “called” teacher, had claimed a minister’s housing allowance in her tax returns, and (most significantly) was characterized as a minister by her employer. The court’s analysis was based on the unique facts of the case, but its ruling gives broad deference to how religious employers characterize their employees. In fact, other cases have given an exceptionally broad definitions of “minister,” even covering employees who don’t share the same religion as the employer.
• The exception’s broad scope. The ministerial exception shields employers from more than just laws protecting employees from religious discrimination. The Hosanna-Tabor case barred a discrimination claim under the Americans with Disabilities Act. Other cases have tossed out suits under a wide range of state and federal antidiscrimination laws.
• The exception is still evolving.Hosanna-Tabor is a fairly new decision. Courts around the country are far from finished exploring the contours of the ministerial exception. Although organizations should hesitate before interpreting Hosanna-Tabor as offering a “license to discriminate,” it’s clear that some employees will have a more difficult time bringing discrimination suits.

In the case of an employee who no longer complies with an employer’s religious requirements (such as regular church attendance) the ministerial exception may offer the organization a shield against a discrimination lawsuit. Organizations should bear in mind that legal liability isn’t the only factor to consider in deciding when and how to fire an employee. A disgruntled former employee can do harm to an organization on social media or job review websites, and a badly handled termination can hurt morale.

Talk to an experienced nonprofit attorney about your plans

The Church Law Center of California helps religious and secular nonprofit clients navigate the complex world of governance. If your organization is struggling with questions about how to handle an employee’s change of faith, we may be able to help. Call us at (949) 892-1221 or reach out to us through our contact page.

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