Work for a Church or Religious School? You May Have No Civil Rights

The Supreme Court broadened all religious organizations' rights to discriminate... That means churches can discriminate based on race, age, sex, disability, national origin -- you name it.
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By Donna Ballman

The Supreme Court unanimously ruled Wednesday on the so-called "ministerial exemption" to employment discrimination laws on Wednesday, finding that churches are allowed to discriminate. The exemption is something you won't find in Title VII or other discrimination laws, but is purely a creation of the courts.

While Title VII does have a limited exemption for religious organizations, it is narrow:

This subchapter shall not apply to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The Americans With Disabilities Act has a similar exemption:

Religious entities:

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

In other words, Congress said that religious organizations can prefer to hire members of their own religion and comply with religious rules. That's it.

The Supreme Court broadened all religious organizations' rights to discriminate, saying that both the Establishment Clause (you know -- the one that says government can't establish a religion, despite what some people like to claim during election years) and the Free Exercise Clause of the First Amendment prohibit any limitations on a church's right to select its own ministers. That means churches can discriminate based on race, age, sex, disability, national origin -- you name it -- when it comes to ministers.

Was the plaintiff in this case a minister? The Supreme Court says yes, despite the fact that she was a teacher of mostly lay courses, and her ministerial duties comprised only 45 minutes a day of her work. They said, "The issue before us, however, is not one that can be resolved by a stopwatch." So what if lay teachers performed the identical duties? The Court found that, because she used the title "minister," taught some religion classes and led the occasional prayer, the church could fire her even for discriminatory reasons.

That's right. The church didn't have to have a religious reason to fire her under this new ruling, and that's what I find to be the scary part. It's one thing if the church says it fired someone because they broke some religious rule or for some religious reason. But the Supreme Court says they can actively discriminate and give the discrimination as a reason, and still get away with it. Church elders don't like ministers in wheelchairs? You're gone. Pregnant ministers? Fugeddaboutit. History of Parkinson's in the minister's family? You're fired.

The good news is that this decision only applies to employment discrimination laws, and only to actual ministers. We'll have to wait to find out if purely lay teachers, janitors, secretaries, accountants, and other church and church school employees will also have no civil rights. That's another ruling for another year and after lots of legal fees.

The Court also refused to rule on whether churches are now immune from child labor laws, minimum wage, retaliation for testifying truthfully in a criminal pedophilia trial, reporting child abuse, or hiring illegal aliens when the laws apply to ministers. You can expect to see a 10-year-old illegal alien minister making 10 cents an hour who is fired for reporting pedophilia by a church school principal any day now.

Can you imagine the floodgate of litigation that just opened? Thank you Supreme Court Justices! These are tough times for lawyers and now employment lawyers all have more work.Okay, all snark aside, were they wrong? If the teacher here was truly a minister, then maybe not. Nobody here argued that Congress should be able to make the Catholic Church have women as priests, as an example.

But shouldn't the church have to have a religious reason for the firing if it violates the law? And shouldn't we be able to impose some rules on churches regarding how they treat ministers? Do we really want to say that there are now no rules? Can churches beat child ministers? Hole a minister up in the attic and feed her only once a week? Ordain someone unwillingly as a minister, then murder him in a sacrifice to their god?

The Court actually made a little fun of these possibilities:

The EEOC and Perich foresee a parade of horribles that will follow our recognition of a ministerial exception to employment discrimination suits. According to the EEOC and Perich, such an exception could protect religious organizations from liability for retaliating against employees for reporting criminal misconduct or for testifying before a grand jury or in a criminal trial. What is more, the EEOC contends, the logic of the exception would con¬fer on religious employers "unfettered discretion" to vio¬late employment laws by, for example, hiring children or aliens not authorized to work in the United States.

But instead of assuaging their fears, the Court brushed them aside:

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her. Today we hold only that the ministe¬rial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

Really? So we have to wait to another day to see if a church is exempt from the "parade of horribles" that EEOC predicts will come to pass. Wanna bet whether some church is going to try pushing the envelope starting tomorrow?

How many pedophilia cases in church schools will go unreported, starting this week, because ministers are now afraid they can be fired? How many children will suddenly be ordained as "ministers" so their abusive parents can use them as free meal tickets? Who will win the inevitable lawsuits when this happens? The Supreme Court says we have to wait to find out. Stay tuned.

Donna Ballman is the award-winning author of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, a book geared toward informing novelists and screenwriters about the ins and outs of the civil justice system. She's been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues is Screw You Guys, I'm Going Home. To find out more about Donna, visit her on Red Room, where you can read her blog and buy her books.

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