Labor and Employment Law

U.S. Supreme Court Finds Teacher Covered Under Ministerial Exception

WASHINGTON, D.C. - (Mealey's) A teacher who taught a religious class, led worship and led prayer was a commissioned minister, and her employment falls within the First Amendment to the U.S. Constitution's ministerial exception, a unanimous U.S. Supreme Court ruled Jan. 11, reversing a Sixth Circuit U.S. Court of Appeals ruling (Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., No. 10-553, U.S. Sup.; See October 2011, Page 5) ( subscribers may access Supreme Court briefs for this case).

"In reaching a contrary conclusion, the Court of Appeals committed three errors.  First, the Sixth Circuit failed to see any relevance in the fact that [teacher Cheryl] Perich was a commissioned minister.  Although such a title, by itself, does not automatically ensure coverage, the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee's position.  . . .  Second, the Sixth Circuit gave too much weight to the fact that lay teachers at the school performed the same religious duties as Perich.  We express no view on whether someone with Perich's duties would be covered by the ministerial exception in the absence of the other considerations we have discussed.  . . .  Third, the Sixth Circuit placed too much emphasis on Perich's performance of secular duties," Chief Justice John G. Roberts Jr. wrote for the court. 

All the justices joined in the opinion.

Teacher's Contract

Perich was hired by Hosanna-Tabor Evangelical Lutheran Church and School as a contract kindergarten teacher in July 1999.  Her contract was from Aug. 15, 1999, until June 15, 2000.  After Perich completed a required colloquy class at Concordia College in February 2000, she was hired as a called teacher in late March 2000.  Called teachers are hired by the voting members of the Hosanna-Tabor church congregation upon the recommendation of the board of education, board of elders and board of directors.  Called teachers are hired on an open-ended basis and cannot be dismissed without cause.

After Perich was hired as a called teacher, her duties remained the same as those she performed while she was a contract teacher.  She taught math, language arts, social studies, science, gym, art and music.  She also taught a religion class four days per week for 30 minutes and attended a chapel service with her class once a week for 30 minutes.  Approximately twice a year, she led the chapel service in rotation with other teachers.  Perich also led each class in prayer three times a day for a total of approximately five or six minutes.

Taken Ill

At a church golf outing in June 2004, Perich suddenly became ill and was taken to the hospital.  Despite a series of medical tests, Perich's doctors still had not come up with a cause for her illness two months later.  Hosanna-Tabor administrators suggested that Perich apply for a disability leave of absence for the 2004-05 school year.  Principal Stacy Hoeft told Perich that she would "still have a job" when she regained her health.  Perich agreed to take a disability leave.

On Dec. 16, 2004, Perich informed Hoeft via email that her doctor had given her a diagnosis of narcolepsy and that she would be able to return to work in two or three months once she was stabilized on medication.

On Jan. 21, 2005, Hoeft told Perich that the school board intended to amend the employee handbook to request that employees on disability for more than six months resign their calls.  She stated that such resignations would not necessarily prevent reinstatement of these employees' calls once they were healthy.  Perich had been on disability for more than five months at the time she received the email.

Return To Work

Six days later, Perich emailed Hoeft and informed her that she would be able to return to work sometime between Feb. 14 and Feb. 28.  Hoeft expressed concern that Perich's condition would threaten the safety of her students.  In addition, Hoeft notified Perich that she would not be able to return to her classroom because the substitute teacher they had hired to replace her had a contract that ran through the end of the school year.

Three days later, at the annual congregational "shareholder" meeting, Hoeft and the school board opined that Perich would unlikely be physically capable of returning to work that school year or the next.  The congregation adopted the board's proposal to request that Perich accept a peaceful release agreement stipulating that Perich would resign her call in exchange for the congregation paying for a portion of her health insurance premiums through December 2005.

On Feb. 8, Perich's doctor gave her a written release to return to work without restrictions on Feb. 22.  The following day, School Board Chairman Scott Salo contacted Perich to discuss the congregation's decision.  Perich requested to meet with the entire board.  During the meeting on Feb. 13, the board presented the peaceful release proposal, and Perich presented the release from her doctor.  Despite the written release, the board requested that Perich resign and gave her until Feb. 21 to respond.

Late in the evening on Feb. 21, Perich emailed Hoeft that she was not resigning and that she would return to work the following morning.  When Perich reported to work on Feb. 22, the school did not have a position for her.  Perich refused to leave school grounds until she was provided a letter stating that she appeared for work.  Hoeft and Salo signed off on a letter stating that Perich had provided improper notification of her return to work and asking that she continue her leave to allow the congregation a chance to develop a possible plan for her return.

Disruptive Behavior

On March 19, Salo sent Perich a letter stating that based on Perich's insubordination and disruptive behavior on Feb. 22, the board would request rescinding Perich's call at the next voters meeting on April 10.  The letter also reiterated the peaceful release offer and gave Perich until April 8 to accept it.

On March 21, Perich's attorney sent a letter to Hosanna-Tabor's attorney stating that Hosanna-Tabor's actions amounted to unlawful discrimination.  On April 10, the congregation voted to rescind Perich's call, and she was informed of her termination the following day.

Perich filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission on May 17, 2005.  On Sept. 17, 2007, the EEOC sued Hosanna-Tabor in the U.S. District Court for the Eastern District of Michigan, alleging one count of retaliation in violation of the Americans with Disabilities Act (ADA).  Perich moved to intervene on March 11, 2008.  She was granted leave and filed her own complaint on April 10, 2008, which added a cause of action under Michigan's Persons with Disabilities Civil Rights Act.

Perich and Hosanna-Tabor each moved for summary judgment.  On Oct. 23, 2008, the District Court granted summary judgment in favor of Hosanna-Tabor, finding that Perich's claims fell within the "ministerial exception" to the ADA.  Perich's motion for reconsideration was denied, so Perich and the EEOC appealed.

Vacating the trial court order, the Sixth Circuit U.S. Court of Appeals panel opined that the District Court erred when it classified Perich as a ministerial employee.  Hosanna-Tabor petitioned the high court.  Oral arguments were held Oct. 5.

Concurring Opinions

Justice Clarence Thomas filed a concurring opinion expressing that in his view, "the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization's good-faith understanding of who qualifies as its minister." 

Justice Samuel Anthony Alito Jr. also filed a concurring opinion "to clarify my understanding of the significance of formal ordination and designation as a 'minister' in determining whether an 'employee' of a religious group falls within the so-called 'ministerial' exception.  The term 'minister' is commonly used by many Protestant denominations to refer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.  In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions.  Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term 'minister' or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one.  Instead, courts should focus on the function performed by persons who work for religious bodies."

Justice Elena Kagan joined in Justice Alito's opinion.


Douglas Laycock of the University of Virginia School of Law in Charlottesville, Va., represents Hosanna-Tabor.  Sri Srinivasan of O'Melveny & Myers in Washington and James E. Roach of Veracrutsse, Murray & Calzone in Bingham Farms, Mich., represents Perich.  Solicitor General Donald B. Verrilli Jr. in Washington represents the EEOC.

Kevin T. Baine of Williams & Connolly in Washington filed an amicus curiae brief on behalf of the United States Conference of Catholic Bishops, the Church of Jesus Christ of Latter-Day Saints, the Presiding Bishop of the Episcopal Church and the Union of Orthodox Jewish Congregations of America.  Thomas C. Berg of the University of St. Thomas School of Law in Minneapolis filed an amicus brief on behalf of Professor Eugene Volokh, National Council of the Churches of Christ in the USA, Baptist Joint Committee for Religious Liberty, Queens Federation of Churches, National Association of Evangelicals and Christian Legal Society.  Megan L. Brown of Wiley Rein in Washington filed an amicus brief on behalf of the Religious Tribunal Experts.  Michigan Solicitor General John J. Bursch in Lansing, Mich., filed an amicus brief on behalf of the State of Michigan and seven other states.  Douglas R. Bush of Arent Fox in Washington filed an amicus brief on behalf of the Muslim-American Public Affairs Council, United Sikhs, Church of the Lukumi Babalu Aye, International Society for Krishna Consciousness, O Centro Beneficente Uniao Do Vegetal and Templo Yoruba Omo Orisha.  David D. Hogan of Lovells in New York filed an amicus brief on behalf of the American Jewish Committee and the Union for Reform Judaism.  W. Cole Durham Jr. of J. Reuben Clark Law School in Provo, Utah, filed an amicus brief on behalf of the International Center for Law and Religion Studies at Brigham Young University.  Steven W. Fitschen of the National Legal Foundation in Virginia Beach, Va., filed an amicus brief on behalf of Wallbuilders Inc.  Elizabeth L. Hileman of Hileman & Associates in Bethesda, Md., filed an amicus brief on behalf of American Humanist Association and American Atheists Inc.  James L. Hirsen in Anaheim Hills, Calif., filed an amicus brief on behalf of the Justice and Freedom Fund.  Steffen N. Johnson of Winston & Strawn in Washington filed an amicus brief on behalf of the International Mission Board of the Southern Baptist Convention, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Council of Hindu Temples of North America, Mandaean Association of Massachusetts and International Church of the Foursquare Gospel.

Stuart J. Lark of Holme, Roberts & Owen in Colorado Springs, Colo., filed an amicus brief on behalf of American Bible Society, Association of Christian Schools International, Association of Gospel Rescue Missions, Awana Clubs International, Azusa Pacific University, Bethesda Ministries, the Christian and Missionary Alliance, Christian Camp & Conference Association, Compassion International, Crista Ministries, Evangelical Council for Financial Accountability, Moody Bible Institute of Chicago, The Navigators, New Tribes Mission, Trans World Radio and Upward Sports.  Nathan Lewin of Lewin & Lewin in Washington filed an amicus brief on behalf of the National Jewish Commission on Law and Public Affairs.

Aaron D. Lindstrom in Grand Rapids, Mich., filed an amicus brief on behalf of Christian Colleges and Universities.  Christopher C. Lund of Wayne State University Law School in Detroit filed an amicus brief on behalf of the Lutheran Church-Missouri Synod.  Michael W. McConnell of Kirkland & Ellis in Washington filed an amicus brief on behalf of the Evangelical Covenant Church, Evangelical Lutheran Church in America, General Conference of Seventh-Day Adventists, General Council on Finance and Administration of the United Methodist Church Inc., General Synod of the United Church of Christ, Rev. Gradye Parsons, stated clerk of the General Assembly of the Presbyterian Church U.S.A. and Salvation Army National Corp.  Robert J. McCully of Shook, Hardy & Bacon in Kansas City, Mo., filed an amicus brief on behalf of the American Association of Christian Schools.  Edward R. McNicholas of Sidley Austin in Washington filed an amicus brief on behalf of Religious Organizations and Institutions.  Jay A. Sekulow of the American Center for Law & Justice in Washington filed an amicus brief on behalf of the American Center for Law and Justice and Intervarsity Christian Fellowship/USA.  Kelly J. Shackelford of the Liberty Institute in Plano, Texas, filed an amicus brief on behalf of the Jewish Educational Center, Association of Christian Schools International and The North American Division of Seventh-Day Adventists Office of Education.  Edward H. Trent in Jacksonville, Fla., filed an amicus brief on behalf of the Trinity Baptist Church of Jacksonville Inc.  John W. Whitehead of the Rutherford Institute in Charlottesville filed an amicus brief on behalf of the Rutherford Institute.

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