What Is the Ministerial Exception?
Several federal and state laws prohibit employers from discriminating against their employees. Employers who violate these laws can be held civilly liable and are often required to pay significant damages to the employees they have wronged.
However, there is a legal loophole — known as the ministerial exception — for employers deemed to be religious organizations. Under the ministerial exception, even if a religious employer is found to have violated anti-discrimination laws concerning one of its ministerial employees, the organization cannot be held liable. This means the wronged ministerial employee is left without a remedy.
The Ministerial Exception Explained
The ministerial exception is a legal doctrine under which anti-discrimination and other laws governing the employment relationship do not apply when the relationship is between a religious institution and a ministerial employee (for example, an employee who performs a religious function).
Origins of the Ministerial Exception
The ministerial exception doctrine has its roots in the “Religion Clauses” of the First Amendment, which provide that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.” The Religion Clauses prohibit the government from interfering with the rights of religious organizations to conduct their business (the Establishment Clause) or with the rights of individuals to exercise their choice of religion (the Free Exercise Clause).
Ecclesiastical Abstention Doctrine
The Religion Clauses first gave rise to the doctrine of ecclesiastical abstention, which prohibits courts from interfering with religious organizations' rights to govern their own affairs. That doctrine has been recognized and enforced by the U.S. Supreme Court since its 1871 ruling in Watson v. Jones, in which the court held that, except in limited circumstances, the government may not interfere with a religious institution’s internal governance.
In 1952, the Supreme Court ruled in Kedroff et al. v. St. Nicholas Cathedral of the Russian Orthodox Church that the Free Exercise Clause gives religious associations the freedom to select their clergy, finding that the choice of clergy falls under ecclesiastical governance. In 1976, the Supreme Court held in Serbian Orthodox Diocese v. Milivojevich that a state court had violated principles of ecclesiastical abstention by overturning a church’s decision to remove and defrock a bishop.
Although the 1972 Fifth Circuit holding in McClure v. Salvation Army appears to be the first court case to specifically use the ministerial exception in the employment law context, the Supreme Court officially adopted the exception in 2012 in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, holding the doctrine emanates from both Religion Clauses of the First Amendment and limits the applicability of certain employment discrimination laws when the employer is a religious organization. In the 2020 consolidated cases of Our Lady of Guadalupe School v. Morrissey-Berru & James School v. Biel, the Supreme Court again applied the ministerial exception and (as discussed below) clarified the test for determining whether an employee is ministerial.
Legal Significance of the Ministerial Exception
Under the ministerial exception doctrine, even if a plaintiff proves their employer violated an employment law, the employer will not be held liable. This includes such employment laws as:
Title VII of the Civil Rights Act (which prohibits employment discrimination based on race, color, religion, sex, or national origin)
The Age Discrimination in Employment Act (which prohibits discrimination against those who are 40 years of age or older)
Titles I and V of the Americans with Disabilities Act (which protects individuals with disabilities)
The Fair Labor Standards Act (which establishes minimum wage and overtime pay requirements, among other things)
Who Qualifies as Ministerial Under the Exception?
In two seminal cases, the U.S. Supreme Court refined its directive for how courts should determine which employees qualify as ministerial.
Hosanna-Tabor Evangelical (2012)
In Hosanna-Tabor, the Supreme Court declined to apply a rigid formula to the question of which employees are ministerial and instead looked at the “totality of circumstances,” including such relevant facts as:
(1) whether the employer held the employee out as a minister,
(2) whether the employee held themselves out as a minister,
(3) the extent of the employee’s religious training, and
(4) whether the employee had a religious role, such as conveying the religious institution’s message and carrying out its religious mission.
Our Lady of Guadalupe School (2020)
In these consolidated cases, the Supreme Court clarified that the employee’s job function, not their title, is the key determinant. If the employee’s role is one of conveying the institution’s religious message and carrying out its religious mission, they are ministerial, regardless of their job title. In this way, the employee at issue need not be the church’s actual minister (and as the Court pointed out in Guadalupe, many religious organizations don’t use the term minister at all), nor must the employee be the head of the organization. Rather, the employee must be someone whose job role requires that they perform “vital religious duties.”
Following these directives, the U.S. Court of Appeals for the Fourth Circuit held in the 2024 case Billard v. Charlotte Catholic High School that a Catholic high school English and drama teacher had a ministerial position because his duties involved “conforming his instruction to Christian thought and providing a classroom environment consistent with Catholicism.” Therefore, the religious school could not be held liable for violating Title VII when it fired the teacher after he announced plans to marry his male partner, something that conflicted with the school’s religious doctrine. Notably, the school did not raise the ministerial exception as an affirmative defense in the lower court, but the Fourth Circuit considered it anyway, explaining that the ministerial exception is of such importance that a court may consider it even if the defendant doesn’t raise it.
How the Ministerial Exception Works (or Doesn’t Work)
In its 2012 Hosanna ruling, the Supreme Court established that the ministerial exception is an affirmative defense — not an absolute bar to a claim. This means that the doctrine does not prohibit an employee of a religious organization from suing their employer for employment discrimination, as an absolute bar would. However, if the employer proves the employee was ministerial, the employer won’t be held liable for employment discrimination, even if such discrimination occurred. But if employment discrimination is shown and the employer fails to show the employee was ministerial, that organization will be held liable.
Applying the Ministerial Exception to Hostile Work Environment and Sexual Harassment Claims — A Circuit Split
The Supreme Court has made clear that the ministerial exception applies in cases involving actions a religious entity takes regarding the employment relationship, such as the action to fire an employee. However, the Supreme Court has not yet been faced with the issue of whether the doctrine should apply in situations where the employer didn’t take any specific action but instead failed to protect the employee from the actions of others, such as hostile work environments or sexual harassment.
In the absence of a Supreme Court ruling on this issue, a split has developed in the federal circuit courts of appeals, and particularly between the Ninth Circuit (holding the ministerial exception should not apply in such cases) and the Tenth Circuit (holding the doctrine applies in these cases). The Tenth Circuit’s application of the doctrine in such cases has led some legal professionals to fear that the exception has swallowed the rule, with the doctrine now surpassing in importance the concept that employers must protect their employees from both discriminatory and unlawful conduct.
A Topic for Future Employment Lawyers
Future employment lawyers would do well to keep up to date on further developments in this area, with particular attention to how the circuit split over whether the ministerial exception applies to hostile work environments and how sexual harassment claims are ultimately resolved.
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