In the unanimous Hosana-Tabor v. EEOC decision issued January 11, 2012, the U.S. Supreme Court recognized for the first time a “ministerial exception” to virtually all forms of employment discrimination. The “ministerial exception” as announced by the Court is not a prohibition against asserting claims against religious organizations, rather an affirmative defense.

The facts of the case are straightforward: Cheryl Perich was employed by Hosanna-Tabor Evangelical Lutheran Church and School as a “lay” teach in 1999. In 2000, she completed requirements to become a “called” teacher. A called teach has the formal title: “Minister of Religion, Commissioned.” She taught mainly secular subjects, but did teach a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. In 2004 she was diagnosed with narcolepsy, which required her to begin the 2004-2005 school year on disability leave. On January 27, 2005, she notified the school that she was able to return to school. The school principal responded by saying that her position had been filled and the school was concerned that she was not ready to return. On January 30, 2005 the church congregation voted to release Perich from her call and offering what amounted to a severance payment in return for a resignation. Perich declined and was terminated.


The Court discussed the history and implications of the Religion Clause contained in the First Amendment. The Court then recognized the “ministerial exception” stating:


The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According to the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.


The Court then concluded that Perich’s position was that of a minister; therefore, the employment laws, specifically the Americans with Disability Act, did not apply. The court considered her calling, title, and circumstances surrounding her commissioning among other facts. The Court did note that title alone will not necessarily mean a church employee is a “minister”.   The Court did not find it dispositive that Perich performed similar duties to that of lay teachers. Nor, did the Court find that the individual being considered a minister perform exclusively religious functions.


It is apparent that churches and religious organizations have wide discretion over their employment decisions, but should still be cautious when making those decisions.