Mitigating Risk with the Ministerial Exception
By Donn C. Meindertsma
In the employment law context, religious institutions enjoy legal protections that other employers do not. A legal doctrine known as the ministerial exception allows ministries to seek the dismissal of certain employment law claims filed by employees or former employees. The doctrine applies to both state and federal cases. The ministerial exception therefore gives churches and other religious organizations leeway to select (and remove) employees free of undue government interference.
Yet, this leeway is limited. Courts apply the ministerial
exception on a case-by-case basis, and they consider in particular the role that the employee bringing a claim played for the ministry. We provide a summary of the doctrine below.
Employment Risks for Ministries
Numerous federal and state laws require employers to take certain actions (e.g., take wage deductions, grant leave, report employee information) and prohibit others (e.g., discrimination, retaliation). Some statutes, and tax laws in particular, make exceptions or have special rules for faith-based institutions. Some laws do not apply to religious institutions simply because they have too few employees to meet the coverage requirements. Nonetheless, most federal and state
employment laws by their terms apply across the board to all employers, religious or not.
Several tools are available to help mitigate employment litigation risks. No measures offer a silver bullet, but some tools may prevent litigation in the first instance. Well-crafted workplace policies mitigate risk by clearly defining acceptable (and unacceptable) performance standards and behaviors. Training is also important: managers and supervisory staff should be trained in effective workforce management and development, and all-employee training on key policies (such as anti-harassment policies) helps ensure the policies work in practice. Insurance policies, including employment practices liability
insurance (or EPLI) policies, can limit the potential financial impact of employment litigation.
If a lawsuit is, unfortunately, filed, the ministry may invoke the ministerial exception and may succeed in getting the case dismissed. But there is no reason to simply hope that the exception will protect the ministry under the facts of a given case. By thoughtfully organizing staff and allocating job responsibilities, religious groups can position themselves to increase the likelihood that the ministerial exception will apply.
Scope of the Ministerial Exception
Disputes involving clergy are
the most obvious cases for applying the exception. Imagine that a church council believes a minister has strayed from official doctrine and replaces him with a more faithful leader. If the minister were to sue the church for, say, age discrimination, the litigation quite likely would involve questions about the discharged minister's teachings, the council's motives, and the centrality of the dogma at issue to the church or its denomination. Factual questions as to whether the cleric in fact strayed from church teachings would arise. The First Amendment to our Constitution, through the ministerial exception, assures that the council's decisions on matters of faith are not second-guessed by a court. The council should be able to have the minister's lawsuit promptly dismissed.
On the other hand, the ministerial exception will not bar employment suits that a court can resolve by applying neutral principles of law. Contract claims illustrate this point. For example, a church that agrees to pay a janitor a bonus for special events will not likely be able to avoid a suit over the church's failure to pay as promised. That type of dispute can be resolved by basic contract law principles, such as whether the parties in fact made a contract.
The ministerial exception is not limited to cases involving churches and to lawsuits brought by clergy. Any "religious group" may assert the
ministerial exception defense in employment litigation. For example, the seminal U.S. Supreme Court decision applying the doctrine, Hosanna-Tabor, involved a lawsuit by a teacher at a denomination-affiliated school. Ministry-affiliated hospitals and nursing homes may also invoke the exception in employment litigation. The first step a court will take in determining whether to apply the exception is to consider whether the employer being sued qualifies as a religious group.
The second step is to determine if the worker suing the religious group is a "minister." That is a fact-bound question. Ministry positions are nearly endless in variety, some involving primarily religious tasks and
others primarily secular ones. It is fair, if not wholly satisfying, to say that the more a job involves religious duties, the more likely the ministry exception will apply. If preachers are on one end of the spectrum, security guards and groundskeepers are on the other.
Positioning a Ministry for Invoking the Exception
Accordingly, in assigning job tasks and developing job descriptions, ministry-employers should keep in mind where a particular job will fall on that spectrum. In Hosanna-Tabor, the Supreme Court considered four factors in deciding that the teacher was a "minister": 1) the formal job title, 2) the substance reflected in the job title, 3) the teacher's own use
of the title, and 4) the religious nature of her job functions. These factors were not intended to establish a rigid formula, although courts in subsequent cases have tended to consider these same factors.
It is easy to see that an employee with a formal title of "pastor" or the like will tend to fall toward the end of the spectrum where the ministerial exception is most likely to apply. Therefore, it makes sense for a ministry to assign pastor titles wherever justified. The fact that a denomination bestowed a teaching title on the pastor, or ordained him, is also relevant. A job title, of course, is not a determinant; simply adding "pastor of ..." to each employee's title will not ensure that
the ministerial exception applies. Even so, titles carry some weight. In addition, an employee who holds himself (or herself) out to be a religious leader is more likely to be considered a "minister."
The qualifications for a ministry position are also relevant. For example, an employee holding a job position that requires a religious degree (or ordination) is more likely than not a minister. Even if a religious institution does not strictly require certain theological prerequisites for a job, the fact that an employee was trained specifically in ministry may also support application of the ministerial exception. A ministry can better position itself to take advantage of the ministerial
exception if it requires its employees to have (or to pursue) some sort of theological or ministry-related degree or experience. As an aside, note that titles such as minister, clergyman, or pastor are not as tightly defined for purposes of the ministerial exception as they are for purposes of tax provisions covering housing allowances for "clergy."
The most important factor in applying the ministerial exception is the employee's actual job duties. Again, a security guard whose job is to patrol the halls of a denomination-associated hospital is not likely to be a minister, even if the hospital qualifies as a religious group. Nonetheless, by distributing religious duties to as many staff
members as is reasonably appropriate, a religious organization can increase the perception that employees who have those duties are ministers. Assigning employees responsibilities in prayer and devotions, including leading staff devotional studies, or responsibilities to provide congregational/member care, move those employees toward the "minister" end of the spectrum. Note that the amount of time an employee spends on "religious" duties as opposed to secular ones, while relevant, is not decisive. A staff member may be a minister even if he or she spends only a small portion of the workday on ministry duties.
In short, courts will consider a variety of factors in deciding whether to dismiss
employee lawsuits against religious organizations. Ministries that proactively design staff positions with those factors in mind are more likely to benefit from the ministerial exception.
Please let us know if you have any questions about this information.
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.