Supreme Court to look again at whether teachers at religious schools are ‘ministerial’

(Ricky Carioti/The Washington Post)
By Robert Barnes 

December 18, 2019 at 5:26 PM EST


The Supreme Court will consider how much leeway religious organizations have in firing their employees in two cases from California filed by teachers who lost their jobs at Catholic schools.

The court said Wednesday that it will combine the cases, in which panels of the U.S. Court of Appeals for the 9th Circuit in San Francisco said teachers could proceed with their lawsuits against the schools. One teacher alleged age discrimination, and another, now deceased and represented by her husband, said she was fired after informing the school that she had breast cancer.

The cases ask the court for further guidance on when an employee should be considered secular and, thus, able to take advantage of anti-discrimination laws — or religious, and thus unable to do so.

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Religious organizations — and dissenting conservative judges on the 9th Circuit — said the decisions in the two California cases did not follow precedent set by the Supreme Court in 2012. In the unanimous decision, the court said the “ministerial exception” meant that a former teacher at a Michigan Lutheran school could not sue her employer.

The decision said, in part, that the First Amendment protects religious organizations in deciding whom to employ to espouse religious training. It added that courts should look not just at an employee’s title, but also duties, in deciding whether religious instruction was an important function of the job.



The Becket Fund for Religious Liberty said in a brief asking the Supreme Court to intervene that only the 9th Circuit has interpreted the standard so narrowly that only cases exactly like the one decided by Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC were prohibited.

“Seven federal courts of appeals and seven state supreme courts, in cases involving Catholic, Protestant, and Jewish employers and many different kinds of roles, have all concluded that the presence or absence of religious function is the touchstone of the ministerial exception inquiry,” it said.

“In the face of that united approach among its sister courts, the Ninth Circuit decided to flout the consensus,” the brief said, and conclude that “important religious functions could never be enough, by themselves, to prove an employee’s ministerial status.”

But attorneys for the women said the religious groups are trying to expand the Supreme Court’s decision to mean that if an employee performs any religious function — even if she has not received any religious training — she is barred from filing suit.

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The 9th Circuit panels conducted fact-intensive inquiries and concluded that the totality of the circumstances meant that the women were not religious employees, lawyers representing them told the Supreme Court.

The Catholic schools take the position that “if the individual employee performs even a single religious function, that employee would be covered under the ministerial exception as a ‘minister,’ ” said a brief filed by Agnes Morrissey-Berru, who sued alleging age discrimination against Our Lady of Guadalupe School in the Los Angeles area.

In the other case, Kristen Biel sued St. James School in Torrance. She said her contract was not renewed in 2014 after she told school officials that she was being treated for breast cancer. Biel sued under the Americans With Disabilities Act, and her suit is being pursued by her husband.

The cases are Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel.

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