The Employment Law Group® law firm’s managing principal, R. Scott Oswald, has published an article in the Employment Law Strategist, entitled “The Supreme Court Finds Religion: A Look at Hosanna-Tabor.” The article provides analysis of the high court’s recent decision and considers the possible workplace protections still available to ministers employed by religious institutions.
Earlier this year, in the Hosanna-Tabor decision, the Supreme Court affirmed the ‘ministerial exception’ to federal employment discrimination law and held that religious “ministers cannot bring employment discrimination suits to challenge adverse employment actions taken by the religious organizations they serve”.
In addressing the decision, Mr. Oswald noted that the “Court’s narrow and somewhat vague holding left the ministerial exception’s reach and significance unclear.” Specifically, according to Oswald, “important issues remain undecided, such as which employees are covered by the exception.”
Noting that while the “Court rejected any ‘rigid formula’ in ascertaining which employees are subject to the ministerial exception, the Court concluded correctly that the judiciary plays at least some role in determining whether a religious organization’s designation of which of its employees perform inherently religious functions is a pretext.”
In light of the Court finding it significant that the plaintiff in the case had “held herself out as a minister” and had claimed ministerial housing allowances on her tax returns, Oswald noted that:
“given this emphasis, how employees represent their responsibilities to third parties will be material, and in some cases as important as how the religious institution describes their duties.”
Furthermore, according to Oswald, this
“fact-specific inquiry should be flexible enough to root out most bad-faith attempts to skirt the law” and “will allow a well-pleaded complaint to make it to a jury for consideration.”
Despite these ambiguities, Oswald maintains that
“employees of religious organizations have reason to be cautiously optimistic that the resolution of these issues will afford such employees some protection.”
While the Court’s ruling allows a religious organization to take discriminatory employment actions against religious ministers, the Court limited its holding by only applying the exception to the context of employment discrimination lawsuits. Therefore, according to Oswald, “ministers may nonetheless have protection from unlawful harassment” as “hostile work environment claims under the anti-discrimination laws do not require employment actions.”
Additionally, the Court left open the question of whether the ministerial exception would bar other types of suits that may include an employment action. Oswald wrote that the Court’s “casual deflection of the issue suggests it would be prepared to accommodate overriding interests”, for example, in the hypothetical case of a religious organization attempting to avoid child labor laws.
As a whole, the Hosanna-Tabor decision “does little more than sanction pre-existing law that has recognized the ministerial exception” but still “leaves issues that could be resolved to allow religious organizations’ employees significant protections.” Finally, Oswald surmised that “by allowing courts to reach the question of whether an employee is a minister, the Court has ensured future litigation that will explore the exception’s boundaries.”
The Employment Law Strategist is published by Law Journal Newsletters, a division of ALM Media. Mr. Oswald’s article appears in the publication’s March 2012 edition.
The Employment Law Group® law firm has an extensive discrimination practice and has broad experience fighting for the rights of employees who have been victims of discrimination by their employers.