Exception Swallowing the Rule? The Expanding Ministerial Exception Puts Workers at Religious Employers at Risk of Losing Civil Rights Protections

We are in a pivotal moment for civil rights in this country. The U.S. Supreme Court affirmed federal anti-discrimination protections for LGBTQ workers; more people are rising up against sexual harassment; and we have embarked on a long-overdue reckoning on racial injustice. At the same time, we are facing an intense backlash, and courts are chipping away at workplace civil rights protections, including through an expansion of a limited doctrine: the ministerial exception. This exception is meant to provide a narrow carve-out to workplace anti-discrimination laws for the hiring and firing of religious leaders by houses of worship and related religious organizations. However, some religious employers are improperly attempting to expand this exception and strip employees of their civil rights protections.

The ministerial exception originates from First Amendment principles. Courts have long understood that government should not interfere with “ecclesiastical” decision-making by religious entities. In practice, the exception has applied to houses of worship and their ability to select religious leaders without government involvement. The Supreme Court recognized this exception in 2012 in the Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC case, while also expanding the exception to include religious teachers in limited circumstances. In applying the ministerial exception to Cheryl Perich, a parochial schoolteacher, the Court applied a “totality of the circumstances” approach, identifying four relevant questions: (1) Does the church hold the employee out as a minister? (2) Does the job title reflect religious training or responsibilities? (3) Does the employee hold herself out as a minister? and (4) Do the job duties reflect a religious role? After applying these factors, the Court held that this particular teacher was a minister and thus could be denied her workplace civil rights protections.

The Supreme Court revisited the ministerial exception in 2020 in the combined cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. Both Agnes Morrissey-Berru and Kristen Biel were teachers at Catholic schools, and both were fired for what they believed to be discriminatory reasons. The Court ruled against the teachers, even though they had limited or no religious training and only taught religion from a textbook for a small fraction of their weekly duties. While the Court referenced Hosanna-Tabor’s “totality” approach, it focused on “what an employee does.” The Court emphasized that “educating young people in their faith . . . lie[s] at the very core of the mission of a private religious school,” and thus, held that both women were covered by the ministerial exception and could be denied their civil rights. The Court’s analysis has now encouraged some employers to argue that all parochial schoolteachers, even those who teach religion as a small fraction of their job or not at all, can be categorized as “ministers” and then denied their civil rights. However, while the Our Lady of Guadalupe decision opened the door for some expansion of the ministerial exception, the Court rejected a far broader interpretation that would have given near total deference to employers to singlehandedly define which employees were “ministers” and denied their workplace civil rights protections.

In recent years, there has been a rise in instances of employers trying to use the ministerial exception to deny their employees civil rights protections. In order to understand the real-life harms of unduly expanding the ministerial exception, it is important to learn about some of the employees who faced discrimination and their experiences:

Gregory Tucker worked as a teacher at a Christian school in Colorado for about 14 years. Students targeted Tucker, using racist slurs, in part because he had an adopted Black daughter. Students also bullied their Black and Latinx classmates, including by dressing in KKK hoods and holding mock executions of students of color, and promoting Naziism. In 2018, in an attempt to stop this hatred, Tucker organized an anti-racism assembly for the school. While the school initially praised his efforts, after a group of parents complained that their white children were “harmed” by the assembly, the school blamed Tucker, demoted him, and fired him. The school is now claiming that Tucker is a minister and therefore cannot proceed with his claims of discrimination and retaliation. The case is still pending before the Tenth Circuit Court of Appeals.

Victoria Crisitello worked at a Catholic school in New Jersey, first as an aide in the “toddler room” and then as an art teacher. In 2014, when Crisitello told her employer that she was pregnant, she was fired. The school claimed that being pregnant and unmarried was a violation of the employee code of conduct. Crisitello filed a case under the New Jersey civil rights law claiming discrimination based on sex, pregnancy, and marital status. Twice the district court in New Jersey dismissed her case and twice the court of appeals has reinstated her claims. The case is now pending at the New Jersey Supreme Court, as the school is still claiming that Crisitello is a minister.

Sandor Demkovich worked as the music director at St. Andrew the Apostle Parish in Illinois when he was repeatedly harassed by coworkers and subjected to homophobic and disability-related slurs. In 2014, he brought age- and disability-based discrimination claims against his employer. However, the parish claimed he could not bring these harassment claims because of the ministerial exception. First, the Seventh Circuit ruled in his favor, but then in 2021, the Seventh Circuit en banc ruled in favor of the employer and dismissed Demkovich’s case.

Christie Leonard worked as a video producer for an evangelical church in Florida. She had worked there almost 15 years when she was fired in 2019, based on rumors that she was having a relationship with another woman. The church demanded that she not live with the other woman, and when she refused, she was fired. After Leonard brought a sex discrimination claim, the church began to argue that she was a minister. The district court agreed and dismissed her case. Despite an earlier victory in this case—where Florida state law was interpreted to protect LGBTQ workers following the 2020 Supreme Court decision in Bostock v. Clayton County—the court ruled that Leonard was a “minister” and so dismissed her case.

These are just a few examples of the growing trend of some religious employers seeking to deny their employees civil rights protections against discrimination by claiming, and expanding, the ministerial exception. The National Women’s Law Center has led amicus briefs in support of these workers, including Tucker and Crisitello.

Indeed, some religious employers are now trying to claim that all their employees are “ministers” as a way to avoid workplace civil rights laws. Some rely on easy-to-manipulate documents, like hiring paperwork and employee handbooks, to support these theories. And while these employers are attempting to expand the category of ministers, there is currently no legal obligation for them to even notify employees that they could be considered “ministers.” This means that many employees could be unaware that they lack protections against discrimination. Remarkably, employers often do not categorize their employees as “ministers” in advance, and some employers have raised the ministerial exception months or years into litigation as a late-breaking theory to avoid accountability. The original exception has been distorted beyond recognition as some religious employers attempt to apply it to nearly every kind of employee. If courts accept this overbroad version of the exception, then what is to stop a religious employer from improperly labeling the janitor at a synagogue or the computer technician at a Catholic school as a “minister” just to deny their workplace civil rights protections?

Additionally, it is not just the categories of covered employees that employers are seeking to expand; religious employers also regularly argue that claims under almost any employment law should be barred by the ministerial exception. These assertions go far beyond the right to hire and fire religious leaders without government involvement. Employers have tried to assert the ministerial exception against claims of harassment; overtime and minimum wage disputes; violations of the Fair Labor Standards Act; Equal Pay Act violations; and improper denial of leave under the Family and Medical Leave Act. At the same time, more employers—even some commercial businesses—are claiming they too are “religious” and attempting to evade civil rights protections. This is even more alarming given that these same employers could then be emboldened to claim that some or all of their employees are “ministers” under the exception.

To be sure, the First Amendment does allow for religious employers—like houses of worship and the entities they operate, such as religious schools—to hire and fire religious leaders, including religion teachers, without government involvement. However, there is no doctrinal foundation for a boundless expansion of the narrow ministerial exception. These attempts by a widening range of religious employers must be challenged, and employees must be warned that if they accept positions with religious employers, they could be at risk of losing critical workplace civil rights protections.

As a society, we have enacted workplace civil rights laws because there is a compelling interest in addressing and preventing employment discrimination. We cannot allow civil rights protections to be eroded by an improper and unlimited expansion of the ministerial exception. We must push back against these efforts, especially when they threaten core workplace civil rights protections for LGBTQ workers, women, people of color, people with disabilities, immigrants, and all workers. The employees in these cases deserve our gratitude as they take up these civil rights struggles for dignity and inclusion.