Employment Law for Ministries


Don't Accidentally Forfeit the Ministerial Exception Defense!

Faith-based employers have a potent defense to employee lawsuits—the ministerial exception. As we have discussed in previous newsletters, courts will dismiss discrimination and similar claims brought by "ministers" against churches, parochial/sectarian schools, and other religious employers to protect their autonomy under the First Amendment to select who will minister for them. Just last month, the U.S. Supreme Court clarified that the term "minister" in this context has a broad meaning and is not limited to the primary leaders of a religious group.

A legal issue that has received scant attention is whether a religious employer might waive or forfeit its right to pursue the ministerial exception defense. Certainly, an employer could do so purposefully by promising a worker, or the entire workforce, that it will not assert the defense in the event of litigation. Or, an employer could deliberately choose not to raise the defense in a given lawsuit. In the ordinary course of litigation, a court will not address arguments the parties have not made.

Yet few if any employers will intentionally waive the ministerial exception defense. Can they nonetheless inadvertently do so? How might that happen?

Waiver by Failure to Assert

The ministerial exception defense might be inadvertently waived in an individual lawsuit.

It is a basic litigation rule that a party must timely assert an affirmative defense and, if not, waives its ability to do so later—a "use it or lose it" situation. Because the Supreme Court has called the ministerial exception an affirmative defense, it is important that a ministry faced with a lawsuit raise the defense at the earliest appropriate moment. In addition, the defense should be asserted throughout the litigation. In a 2012 federal court of appeals decision, the court held that a Christian school waived the ministerial exception defense against an employee's pregnancy discrimination claim because it did not sufficiently preserve it in its appellate brief.

Some legal scholars assert that the ministerial exception should not be so easily forfeited in litigation. Briefs filed in the recently decided Supreme Court cases on the ministerial exception argued that the ministerial exception has "qualities that plainly circumscribe the authority of the courts, providing 'structural' limitations on the courts’ power that can rarely be waived." A few courts have agreed with that argument. Other scholars have argued for a middle approach, noting that while religious employers have an interest in autonomy, the government has its own interest in not becoming entangled in private, religious affairs, so ministries should only have "partial control" over whether the defense applies. Most courts, however, have not addressed this legal issue; so, as noted, ministries should explicitly ("affirmatively") raise this defense.

Waiver by Agreement

Inadvertent waiver might preclude access to the defense not just in an individual case but more broadly. This might be the consequence of the faith-based employer's decision to sign certain types of agreements. For example, a religious group might agree to join a local organization or national association, to enter into an arrangement with a municipality to provide charitable services, or to sign a contract with an insurer or landlord. Likewise, a religious school might join an athletic conference with secular ones, signing documents signifying its participation.

These agreements have little or nothing to do with employment matters, but they could affect the availability of the ministerial exception defense in employment litigation. Affiliation agreements and contracts of this sort often contain boilerplate "non-discrimination" clauses, and by signing them a religious group agrees to comply with them. Whether an employee might be able to hold the employer to that commitment in a subsequent lawsuit depends on several factors. Nonetheless, religious organizations should be wary of overly broad non-discrimination clauses in contracts they sign.

Waiver by Artifact

"Artifacts" may include documents, mission statements, notices, and other expressions by an employer that might lead a worker to believe that the employer does not intend to assert the ministerial exception defense. 

For example, most of us are familiar with the ubiquitous "employee rights" posters tacked to workplace bulletin boards. Federal and state laws mandate these posters, and they summarize the various claims employees may bring. Employees perusing the posters might presume that if the posters say they have rights not to be discriminated against, they can sue to enforce those rights. An employer is certainly free to post its own notice that rights are available to its workers only to the extent those laws apply to the employer.

Employment policies and handbooks fall in between the categories of agreements and artifacts. Usually, the employer disclaims (in bold font) that its policies and handbook do not create enforceable "contracts." Sometimes, however, documents like this create implied contracts by using unqualified terms (such as when the document states that the employer "shall" or "will" do, or not do, a specific thing). Assume, as an example, that a church cuts and pastes a secular organization's handbook provision stating that no discrimination of any kind will be tolerated and that those who engage in discrimination will be disciplined. In fact, however, the church for doctrinal reasons hires only males for leadership positions. Its policy and its actions are in direct conflict. A court might decide that the church by its own words affirms that it does not discriminate based on sex and therefore cannot avoid a sex discrimination lawsuit.


Whether an employer can waive, or forfeit, the ministerial exception defense is an unresolved legal issue, and there are arguments on both sides of that question. Faith-based employers should be alert to the possibility that the defense could inadvertently be waived.

If you have any questions about this development, please contact us.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.