written by Nicholas Morgan Originally Published by Telios Law PLLC Practical Tips in Defining Ministers What is the Ministerial Exception and Where Does it Come from?“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .”1 This two-part amendment applies to the federal government directly and the states through the Due Process Clause of the 14th Amendment. The two parts, establishment and free exercise, are the Constitutional teeth for the separation of church and state, a historic principle dating back to the first clause of the Magna Carta. That principle applied to church conflicts (particularly property disputes) through Watson v. Jones 2 and following3 , which circumscribed the State’s ability to adjudicate religious doctrinal disputes.
The concept that courts shouldn’t adjudicate doctrinal disputes, called the “ecclesiastical exemption,”or “ecclesiastial abstention,” was applied to employment law beginning in 1929 through a series of cases holding that courts do not have the authority to determine who is qualified to be a minister4 , and thus created the “ministerial exception.” Accordingly, even before the landmark opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC5, all federal circuits and many states had a version of the ministerial exception, which described the government’s inability to interfere with the employment decisions of a church in regards to its ministerial employees, and specifically refused to apply anti-discrimination laws such as the Americans With Disabilities Act and Title VII of the Civil Rights Act of 1964 to these situations.
When the Hosanna Tabor case was heard in 2012, therefore, it represented the US Supreme Court’s first opportunity to legitimate the already ubiquitous concept of the ministerial exception to anti-discrimination legislation in regard to employment decisions between a religious organization and its ministers. The Court did indeed legitimize the concept. More importantly, however, the Court offered instruction on the unsettled concept of how to determine whether an individual employee is indeed a minister. Despite the Court’s reluctance to provide a rigid formula for this determination, the Court provided useful information instructive both for future court analysis, and for religious orgs to utilize in ensuring that those in their employ, which they may consider ministers, are conveyed and constructed as such.
How Do we Show which Employees are Ministers?Again, according to the Court’s totality-of-the-circumstances analysis, there is no rigid test nor ability for religious orgs to be absolutely confident of their determination of their employees’ statuses. However, in consultation with an experienced religious nonprofit attorney, religious orgs may bolster their confidence of a court’s concurrence with the org’s determination that an employee is a minister by structuring employment relationships in accordance with some or all of the following: 1. The religious organization should “hold out” its ministerial employees as being ministers. This is an overarching concept with component parts described below. Primarily, though, holding an employee out as a minister refers to the org’s communication (both internal and external). Consistent communication is key and can be achieved in part through organizational newsletters, staff listings on websites, and all other private and public written and spoken communications making reference to staff.
2. The role of the minister should be distinct from the role of non-ministers within the organization. The more distinct, the better the argument that these are a special class of employee and should be subject to different standards.
3. The job duties of the minister should include responsibilities that are unambiguously religious. Consider including in the minister’s written job description responsibilities such as: discipling those under the minister’s management; annual spiritual retreats or days of prayer and vision with corresponding spiritual growth plans submitted to supervisors or boards; and/or scriptural or religious principle teaching responsibilities.
4. To the extent reasonable, the job qualifications of the minister should include qualifications that are unambiguously religious. Consider employment qualifications for your ministers such as proven track record of religious service, spiritual character and maturity references from religious leaders, ecclesiastical certifications, etc.
5. Then, of equal importance, perform and keep records of annual performance evaluations for these employees including evaluations of their performance on the religious responsibilities.
6. Consider providing an internal, or seeking an external, certification of the ministerial status of the employee.
7. Provide a religious job title. It may seem a bit contrived to bestow upon your VP of Communications the title of “Ambassador of the Religious Message of XYZ Ministry” or “Minister of Communication,” but this relates directly to the first factor mentioned, how you hold out your employees matters to the Court. Additionally, the Court in Hosanna Tabor placed as much importance on the minister-in-question’s job title as any other indicator of her role as a minister.
8. Provide scriptural support for the responsibilities and qualifications of the position.
9. Provide opportunities for continuing education and training for the ministerial responsibilities and document how these opportunities enhance the ministerial effectiveness of employees.
10. Pray, as an organization, for the employee’s effectiveness in her/his religious responsibilities.
11. In both the job description/application and the interview, make explicit that the religious qualifications are of paramount importance for this role.
12. Clearly communicate to the employee before extending a job offer, in onboarding documentation (employee handbook and/or training materials), and through regular performance evaluations that the organization considers the employee to be a minister.
13. Through the help of your attorney, consider communicating explicitly to the candidate (pre-employee) the differences between ministerial and non-ministerial employment relationships and the legislative protections the candidate may be forfeiting by accepting a ministerial job. Are there Hazards in Claiming the Ministerial Exception? Religious nonprofits’ evaluation of the ministerial exception to their workforce has increased substantially in recent years, both because of the new guidance of Hosanna Tabor and because of new compliance challenges like the recent threats of an increased salary threshold for exemptions under FLSA. The ministerial exception may apply for certain religious organization to exempt certain employees from ADA, ADEA, Title VII, certain state anti-discrimination legislation, and possibly both the FLSA and FMLA6 . Religious organizations, however, must not be cavalier in their reliance upon the exception.
Religious organizations need to use caution in determining to what extent they will rely upon the ministerial exception for a number of reasons. First, the application of the exception needs to be an employee-by-employee (case-by-case) review. Blanket application will not serve the org well. Second, religious orgs need to consult with experienced religious nonprofit counsel to determine how the ministerial exception has been applied in the jurisdictions in which they operate. It is inaccurate to say that the ministerial exception applies to all federal employment statutes at this time. Third, religious orgs need to weigh carefully the branding for their organization or cause in regards to a lawsuit, where the press may pick up a theme of “XYZ Temple is claiming that they can simply refuse to hire the disabled on the sole basis that XYZ is religious and can therefore operate outside of the laws that protect citizens from discrimination.” Fourth, religious orgs who have not experienced the ordeal of litigating an affirmative constitutional defense should discuss with their religious nonprofit attorney exactly what such a defense would entail.
The defense’s ultimate cost, including ministry disruption, press and public scrutiny, and legal fees may be enough to encourage the religious org that it would be easier in many cases to subject itself to FLSA, FMLA, or other requirements, rather than “win” a legal case on a constitutional matter. Fifth, and last, there is always potential that the next legal opinion on the ministerial exception will be the one that strips the exception of some of its current value and makes a major negative impact on religious liberty going forward. ______ 1U.S. CONST. amend. I. 2Watson v. Jones, 80 U.S. 679. 3For example; KEDROFF et al. v. ST. NICHOLAS CATHEDRAL OF RUSSIAN ORTHODOX CHURCH IN NORTH AMERICA, 344 U.S. 94. 4 Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1 (1929); Mcclure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 1050 (1972); Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). 5565 US ___ (1972). 6The District Court in Fassl v. Our Lady of Perpetual Help Roman Catholic Church, (E.D. Pa. 2005) held that the ministerial exception applies to all federal employment statutes. Higher courts have not yet decided.