Have you ever considered how yeshivas are able to make hiring decisions comporting with Jewish religious values without running afoul of anti-discrimination laws?
This important pocket of religious freedom, called the “ministerial exception,” was enshrined by the U.S. Supreme Court in a 2012 case – but its parameters have been the subject of debate and litigation ever since. Now, the Supreme Court has agreed to hear a pair of employment discrimination cases brought by two Catholic school teachers. The schools had asserted that the ministerial exception, set forth in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, barred the lawsuits, and the district courts agreed and dismissed the lawsuits.
The Court of Appeals for the Ninth Circuit, however, reversed those dismissals and allowed the claims to go forward, finding that one teacher – who alleged that she was terminated because she had to miss work for breast cancer treatment – had “limited” religious functions, and that the position of the other teacher – who alleged age discrimination – was secular despite her “significant religious responsibilities as a teacher.”
While the Hosanna-Tabor doctrine is clearly not limited to men in priestly frock or ordained rabbis, the Supreme Court must now clarify the scope and character of the religious functions performed as part of an employee’s job that would warrant application of the ministerial exception. In the current two cases, Our Lady of Guadalupe School v. Agnes Morrissey-Berru and St. James School v. Darryl Biel, the teachers stressed that the schools had not required them to be Catholic or to lead students in prayer or other religious activities. At the same time, they did have to incorporate Catholic ideals into their lessons.
For employees of parochial schools and other religious institutions, job titles do not necessarily communicate the religious (or secular) aspects of their roles – and are certainly not determinative under the law. Rather, courts must examine the substance of the position, the Second Circuit Court of Appeals has held, noting that the ministerial exception has been applied to such prosaic-sounding jobs as nursing home staff, press secretary, and music director.
The U.S. Supreme Court’s ultimate decision in the two pending Catholic school cases will have potentially enormous implications for yeshivas and day schools and, indeed, for a host of other community institutions. To run a school or synagogue in accordance with our faith – the ministerial exception is grounded in the Free Exercise Clause of the First Amendment – would be nearly impossible without the protection provided by this doctrine. For example, there have been several cases in Indiana in which Catholic school teachers alleged employment discrimination based on their same-sex relationships. Should our children’s schools or our shuls or day camps be able to make hiring decisions free from the stranglehold of so-called progressive values which are antithetical to our Torah values?
In light of the rise not only of societal acceptance but of legal recognition of LGBT rights, we should be extremely concerned about this issue. As a father, I was shocked when my seven-year-old daughter, who attends a local Orthodox elementary school, brought home a social studies textbook that described families as sometimes having “two moms or two dads.” As an attorney practicing in the employment discrimination field, however, I am optimistic that perhaps the Supreme Court will take this opportunity to not only clarify but actually strengthen the doctrine set forth in Hosanna-Tabor to ensure that our rights as religious Americans are protected.
