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Lesson Plan – Hosanna-Tabor Church v. Equal Employment Opportunity Commission

Certiorari granted by the United States Supreme Court on March 28, 2011
Oral arguments scheduled for October 5, 2011

Case decided January 11, 2012

Outline:

The Parties

Petitioner: Hosanna-Tabor Church

                                      v.

Equal Employment Opportunity Commission 

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FantasyCast

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The Questions Presented

Can a church discriminate against a teacher because of her disability, in light of the so-called “ministerial exception” whereby federal employment laws do not apply to religious leaders or church employees?
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Case Background

From 1999 to 2005, Cheryl Perich taught elementary school at Hosanna-Tabor Evangelical Lutheran Church and School. While Perich taught secular subject matter to her classes, Hosanna-Tabor generally offers students a “Christ-centered education” that involves religious classes, chapel services, as well as prayer and devotional time led by teachers. By the time Perich was terminated from her teaching position in 2005, she had earned “called” teacher status, which requires completing religious colloquy classes and being chosen by the voting members of the church congregation.

In 2004, Perich took a medical leave of absence from her employment with Hosanna-Tabor when she was diagnosed with narcolepsy. After Perich’s diagnosis, doctors assured her that she would be able to return to teaching after receiving proper treatment. The principal of Hosanna-Tabor assured her that she would still have a position at the school after her disability leave. Toward the end of Perich’s leave though, the principal and school board became concerned that Perich’s disability would interfere with her ability to care for her students and voiced their concern to the congregation.

The congregation voted to offer Perich a peaceful release agreement where she could resign in exchange for partial payment of her health care fees. Perich rejected the agreement and informed her employer that she intended to return to work. On February 22, 2005, Perich returned to resume her teaching duties but was told that there was no longer a position for her at Hosanna-Tabor. Soon after, she retained a lawyer and filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) alleging unlawful discrimination and a violation of her rights under the Americans with Disabilities Act (“ADA”). The EEOC informed Hosanna-Tabor of the complaint, and Perich was officially terminated from her teaching position. The EEOC and Perich filed suit against Hosanna-Tabor for unlawful discrimination based on her disability.

At the District Court

When the EEOC and Perich filed suit against Hosanna-Tabor in the District Court for the Eastern District of Michigan, the court dismissed the case based on Hosanna-Tabor’s argument that Perich’s claim falls within the “ministerial exception” to the ADA. The ministerial exception means that, generally, federal employment discrimination law does not apply to religious leaders. The rationale for this exception is that an employment discrimination lawsuit against a church would interfere with the church’s First Amendment right to choose its religious leaders. The court concluded that Perich, as a teacher at a religious school, fell within this exception and therefore, could not file suit against Hosanna-Tabor.

Opinion of the Court of Appeals

Perich and the EEOC appealed the District Court’s decision to the Sixth Circuit Court of Appeals. The Sixth Circuit reversed the previous decision, holding that Perich was not covered by the ministerial exception, because she spent a majority of her time performing secular duties–that is teaching non-religious classes. Although Hosanna-Tabor gave Perich the title of “commissioned minister,” the court placed more importance on the fact that Perich used secular teaching materials and taught non-religious subjects to her classes. The Court remanded the case, which allowed Perich to move forward with her lawsuit against Hosanna-Tabor.

While the Sixth Circuit held that Perich was not a “ministerial employee” for the purposes of this exception to the ADA, Judge Eric Clay acknowledged in his opinion that some other circuit courts use differing standards to determine who qualifies for the ministerial exception. Because the decision of one federal circuit court is not binding on the others, this creates a “circuit split” that can be resolved by Supreme Court ruling on the issue at hand.

Hosanna-Tabor appealed the decision to the United States Supreme Court, arguing that the Sixth Circuit wrongly interpreted the ministerial exception to the ADA and asking the Supreme Court to resolve the circuit split on how to define a ministerial employee.

The Supreme Court granted the writ of certiorari and agreed to hear the case on March 28, 2011. Oral arguments are scheduled for October 5, 2011.

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The Law

The First Amendment to the Constitution of the United States of America

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Americans with Disabilities Act (ADA) (in part)

No [employer] shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment

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Relevant Precedents

Bell v. Wolfish, 441 U.S. 520 (1979)

In Bell v. Wolfish, the Supreme Court upheld a prison policy of strip searching all inmates following supervised visits with guests from outside the prison. The Court laid out a complex balancing test, but concluded that “reasonable individualized suspicion” was not necessary to make a prison strip search policy constitutional.

Serbian Eastern Orthodox Diocese v. Milivojevich,426 U.S. 696 (1976)

The Serbian Orthodox Church suspended and removed Milivojech from his position as a bishop for “canonical misconduct,” but Milivojech challenged his termination in court. The Supreme Court of Illinois agreed with the former bishop and held that he must be reinstated because the removal proceedings did not follow proper procedure and were therefore invalid. The Supreme Court of the United States considered that case and held that the Illinois court’s interference with the with matters of church governance violated the free exercise clause of the First Amendment. The 7-2 majority reasoned that the decision to remove Milivojevich for his insubordination was made by the highest authority in the Serbian Orthodox Church, therefore that religious body, not the court, should have the sole power to appoint and suspend bishops.

Employment Division v. Smith, 494 U.S. 872 (1990)

This case arose when several Native Americans were terminated from their jobs and refused unemployment benefits because they smoked peyote in religious ceremonies. Peyote is a drug outlawed in the state of Oregon. The fired employees sued their former employee, claiming that to punish these individuals for their use of the drug during a religious ceremony was a violation of their right to free exercise of religion. In a 6-3 decision, the Court held that it is constitutional for the state of Oregon to regulate drug use and that the law does not conflict with the “free exercise” clause. Justice Scalia, writing for the majority, explained that the free exercise argument failed because the First Amendment does not allow a person to disobey the law simply because they have a religious objection.

Locke v. Davey, 540 U.S. 712 (2004)

In accordance with a Washington state law that forbids the state from funding religious education, certain scholarships were granted to college students under the condition that they do not pursue a theology degree. One student, Joshua Davey, who was awarded the scholarship was forced to give up the money when he enrolled in a Christian pastoral ministries program. He challenged the constitutionality of the state’s action, saying that it violated his right to free exercise of religion. In a 7-2 decision, the Supreme Court held that the state did not interfere with Davey’s First Amendment rights by only funding non-religious studies. The Court reasoned that, while the state law prevented funding for religious studies, it did not have a discriminatory reason for doing so. Instead, the state had a “substantial interest” in preventing state funds from directly supporting religious activity.

Christian Legal Society, Hastings Coll. of Law v. Martinez, No. 08-1371 (U.S. June 28, 2010)

When Hastings College of Law created a school-wide non-discrimination policy that required student organizations to accept all interested students, the Christian Legal Society challenged the policy on the grounds that it violated several of their First Amendment rights — including their right to freely exercise their Christian faith. The 5-4 majority rejected CLS’s free exercise claim, holding that the school’s policy did not violate the group right to exercise their religious beliefs because the policy was applied to all student groups. Therefore the policy did not discriminate against religious groups. In his dissent, Justice Alito disagreed with the holding, writing that the policy did single out religious organizations like CLS and therefore infringed on their First Amendment rights of expressive association.

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Justice Voting History

This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]

Employment Div. v. Smith (1990) Locke v. Davey (2004) C.L.S. v. Martinez (2010)
Roberts Not yet on Court Not yet on Court NC
Scalia C NC NC
Kennedy C C C
Thomas Not yet on Court NC NC
Ginsburg Not yet on Court C C
Breyer Not yet on Court C C
Alito Not yet on Court Not yet on Court NC
Sotomayor Not yet on Court Not yet on Court C
Kagan Not yet on Court Not yet on Court Not yet on Court
C The Justice voted that the statute was constitutional.
Yes, but… The Justice voted with the majority, but disagreed about why.
NC The Justice voted that the statute was unconstutional.
Not yet on Court The Justice was not yet on the Court when the case was decided.

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The Arguments

Hosanna-Tabor Church (Petitioner)

Both parties agree that the ministerial exception to the ADA is necessary because religious groups have the right under the First Amendment to freely exercise religion. This includes the right to make decisions about how the church will be governed, and whom to appoint as religious leaders. The parties disagree, however, about how to determine which employees are covered by the ministerial exception. Hosanna-Tabor challenges the decision of the Sixth Circuit by pointing out that there is disagreement among the circuit courts as to how to determine which employees are covered by the ministerial exception. Hosanna-Tabor argues that the method used by the Sixth Circuit is vague and arbitrary, and that it invites the courts to meddle with religious groups.Hosanna-Tabor advocates an approach that involves looking at all of the circumstances of an employee’s situation on a case-by-case basis and determining whether she was a “ministerial employee” who performed religious functions. Based on this approach, Hosanna-Tabor argues that, if a court were to consider the details of Perich’s teaching job and the religious aspects of her employment, she should be covered by the ministerial exception and her lawsuit should be barred accordingly.

EEOC & Perich (Respondent)

Perich argues that the ministerial exception to the ADA does not apply to her, as she taught secular subjects and used non-religious teaching materials during her time at Hosanna-Tabor. While she did hold the title of “commissioned minister” and incorporate religion into her teachings a few times, Perich points out that her teaching duties were primarily non-religious. Therefore, because her employment discrimination case would not violate Hosanna-Tabor’s First Amendment right to free exercise of religion, Perich should be able to go forward with her lawsuit against the school.In urging the Supreme Court to affirm the Sixth Circuit’s decision, Perich and EEOC advocate the “primary duties” test to determine which religious employees fall within the ministerial exception. This test requires considering whether an employees main job responsibilities are religious or secular to decide who is a “ministerial employee.”

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Oral Arguments

 

The Court’s Opinion

On January 11, 2012, the Court unanimously reversed the Sixth Circuit in an opinion written by Chief Justice Roberts. Justice Thomas filed a concurring opinion, as did Justice Alito joined by Justice Kagan. Chief Justice Roberts began the Court’s opinion by documenting the history of church-state relations–specifically, governments’ past attempts at appointing clergy–in England and in pre and post-Revolutionary America. “It was against this background” wrote the Chief Justice, “that the First Amendment was adopted. Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church.” Additionally, as evidence of the Framers’ intent, the Court noted two specific instances in which James Madison, the main drafter of the Bill of Rights, specifically rejected attempts or offers for the government to appoint religious leaders.

After then surveying caselaw on the issue, the Court unequivocally recognized the existence of a ministerial exception. Because “[t]he members of a religious group put their faith in the hands of their ministers . . . . [r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so . . . . interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” The Religion Clauses of the First Amendment, the Court wrote, were meant to prevent the government from intruding upon ecclesiastical decisions.

Once it determined that the ministerial exception exists, the Court’s final question was whether Cheryl Perich was a minister under the rule. The Court held that, under the facts of this case, Perich was a minister, however, the Court was clear that it did not intend “to adopt a rigid formula for deciding when an employee qualifies as a minister.” Among the reasons for finding that Perich was a minister, the Court noted that the church held Perich out as a minister to others; that Perich held herself out as a minister; that Perich had specialized religious training for her position; and that Perich’s job role including conveying the church’s religious message to students. The Court acknowledged that Perich taught secular subjects and performed secular duties, as well as the fact that her religious teaching usually only consumed about 45 minutes a day.  However, the Court noted, “[t]he issue before us . . . is not one that can be resolved by a stopwatch.”

Thus, the Court held,  Perich was a “minister” within the meaning of the ministerial exception and accordingly, could not sue Hosanna-Tabor for employment discrimination after the church fired her.

 

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Blog Topics

 

Write the Opinion – Hosanna-Tabor v. EEOC Badge (200 Points)

Pretend you are the Justices of the Supreme Court. Vote as a class how this case should be decided, and write an opinion discussing how this case should be resolved. If your classmates do not all agree, write concurring and dissenting opinions to explore all of your different understandings of the case. Each opinion should be at least 250 words, and reference the text of the First Amendment and at least three of the cases listed in the Relevant Precedents section.

Friend of the Court - Amicus Brief  Badge (150 points)

Pretend that you are a lawyer and you represent either a religious school, or an atheist group. Write a 200 word Amicus (latin for Friend of the Court) Brief, arguing why the Court should consider the interests of your client. The goal of an amicus brief is to provide information to the court about the implications of their decision beyond the affect it will have on the two parties who appear before them.  Be sure to include citations to the cases, and make a strong policy argument why your side should win.

The Free Exercise Clause - First Amendment Badge (50 points)

The ministerial exception, as it applies to the Americans with Disabilities Act and other employment laws, is based on the principle that a court would be violating a religious institution’s First Amendment right to freely exercise their religion if the court interfered with the institution’s hiring and firing decisions. Do you agree with this rationale? How does maintaining the ability to make personnel decisions equate to the free exercise of religion? How might lawsuits from former employees infringe on this right? Write a blog post of at least 150 words exploring this issue.

EEOC v. Hosanna-Tabor’s Effect on Religious Schools - Education Badge (50 points)

Imagine that you’re the director of a religiously-affiliated school. If the Court decided that an employee like Perich can sue the school after being terminated, how would might this affect you and your school? Would you have to make any changes to the curriculum or to the roles of teachers to protect your school from being sued? And if the Court finds that Perich cannot file suit because of the ministerial exception, how might your employees react to the decision? Which decision would be in your best interest? Write a blog post of at least 150 words exploring this issue.

Discrimination & Religious Employees  - Employees’ Rights Badge (50 points)

Courts give great deference to churches, temples, mosques, and religious schools by considering them to be exempted from employment lawsuits. Could you foresee this deference ever being abused by a religious organization? If a court finds that Perich was, in fact, discriminated against because of her disability, should it matter who her employer was or whether she performed religious duties as a part of her job? Could a religious school intentionally choose not to hire an employee because he or she is gay, African-American, or disabled? Write a blog post of at least 150 words exploring this issue.

Conflict between the Courts  - Justice Badge (50 points)

While federal laws like the Americans with Disabilities Act apply to all Americans, courts can interpret the words of these statutes to have different meanings. Because the rulings of each circuit court are not binding on other circuits, there can be direct conflicts between the circuits about how to interpret a particular law. Is it fair that federal laws are meant to apply to everyone equally, but a case based on a federal law could have a different outcome based on which court hears the case? Further, when the courts are divided, a Supreme Court ruling resolves the conflict and determines how the law must be interpreted. Sometimes, as with this case, the 13 judicial circuits are pretty evenly split on how to interpret the law; other times, however, a clear majority of judicial circuits supports a certain approach, while a minority of circuit courts disagree. When resolving a disagreement between the circuits, should the Supreme Court take into account how many courts support each side? Or should the Court focus only on words of the law itself? Write a blog post of at least 150 words exploring this issue.

Eliminating the Ministerial Exception? - Legislative Process Badge (50 points)

The ministerial exception does not come from the text of the statute itself, but instead, it was created by courts to resolve any possible conflicts with the First Amendment. What would happen if Congress were to amend the Americans with Disabilities Act to say: “This law shall apply to all employers, including churches, synagogues, mosques, temples, religious organizations, and religious schools.” Who would be able to challenge the constitutionality of an amendment like this that eliminates the ministerial exception? How might Congress defend the change if it were brought to court? Write a blog post of at least 150 words exploring this issue.

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Additional Resources

  • Full opinion of the U.S. Court of Appeals for the Sixth Circuit
  • Docket information at the Supreme Court:  This page will be updated as more briefs are filed.
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