Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church & School

HELENE N. WHITE, Circuit Judge,

concurring.

I agree that the ministerial exception 1 does not bar this ADA action. I write separately because I read the relevant cases as more evenly split than does the majority.

As the majority notes, whether a teacher at a sectarian school is properly characterized as a ministerial employee is an issue of first impression for this Court. 2 A *783 number of courts have concluded that parochial school teachers are not ministerial employees for purposes of the exception. See, e.g., DeMarco v. Holy Cross High Sch., 4 F.3d 166, 171-72 (2d Cir.1993); EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1370 (9th Cir.1986); Redhead v. Conf. of Seventh-Day Adventists, 440 F.Supp.2d 211, 221-22 (E.D.N.Y.2006); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.Supp.2d 849, 852-54 (S.D.Ind.1998); see also Dole v. Shenandoah Baptist Church, 899 F.2d 1389, 1396-97 (4th Cir.1990). 3 In contrast, courts have found teachers to be ministerial employees where the teachers have taught religious subjects and/or had a key role in the religious mission of the church. See Clapper v. Chesapeake Conference of Seventh-Day Adventists, 166 F.3d 1208 (4th Cir.1998) (unpublished); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 463-65 (D.C.Cir.1996); EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283-84 (5th Cir.1981); Coulee Catholic Sch. v. Labor and Indus. Rev. Comm., 320 Wis.2d 275 , 768 N.W.2d 868 (2009).

Of these cases, four present situations similar to that here — plaintiff teachers who taught primarily secular subjects at a religious school and court decisions turning on a primary-duties analysis. Two plaintiffs were not found to be ministerial employees. See Redhead, 440 F.Supp.2d at 221-22 (teacher at Seventh-day Adventist elementary school teaching secular subjects and daily Bible study not a ministerial employee because teaching duties were “primarily secular” and religious duties “were limited to only one hour of Bible instruction per day and attending religious ceremonies with students only once per year”);. Guinan, 42 F.Supp.2d at 852-53 (fifth-grade teacher teaching mostly secular courses along with one class in religion and organized Mass once a month not a ministerial employee; secular nature of the teaching position demonstrated by the fact that some teachers were not Catholic). Two plaintiffs were found to be ministerial employees. See Clapper, 166 F.3d 1208 (elementary school teacher teaching traditional academic curriculum who also led students in prayer and taught the Bible on a daily basis is a ministerial employee; court rejected argument that only one of teacher’s thirteen responsibilities was explicitly religious, relying on the fact that the church’s code made clear that the “the primary purpose of the Seventh-day Adventist elementary education” is the redemption of students’ souls through belief in and adherence to Seventh-day Adventist beliefs); Coulee, 768 N.W.2d at 881-82 (in applying primary-duties test, state supreme court eschewed quantitative analysis of time spent on tasks in favor of functional approach focusing on whether organization has a fundamentally religious mission and how important or closely tied *784 the employee’s work is to the fundamental mission, concluding plaintiffs teaching Catholic doctrine and practice to students four days a week occupied a role “of high importance and closely linked to the mission of the school — the inculcation of a Christ-centered concept of life.”).

Perieh’s daily duties resemble to some extent those of the plaintiffs in each of these cases, including those in which the courts found the plaintiffs’ “primary duties” to be ministerial in nature. Tipping the scale against the ministerial exception in this case is that, as the majority points out, there is evidence here that the school itself did not envision its teachers as religious leaders, or as occupying “ministerial” roles. Hosanna-Tabor’s teachers are not required to be called or even Lutheran to teach or to lead daily religious activities. The fact that the duties of the contract teachers are the same as the duties of the called teachers is telling. This presence (or lack) of a predominantly religious yardstick for qualification as a teacher is a key factor in decisions finding the ministerial exception applicable and those finding it inapplicable alike. See Clapper, 166 F.3d 1208 (4th Cir.1998) (applying ministerial exception) (noting that teachers are required to be “tithe paying members of the Seventh-day Adventist Church and are expected to participate in church activities, programs, and finances” and “The purpose of this requirement is obvious-the Chesapeake Conference desires to insure that the minds of its youth are shaped by model members of the Seventh-day Adventist faith.”); Coulee, 768 N.W.2d at 891 (applying ministerial exception) (court found that the plaintiff teacher was “required to live, embody, and teach Catholicism in her role as a teacher consistent with the mission of the school” where teacher was required to “engage in Catholic worship, model Catholic living, and impart Catholic teaching,” even though not required to be a Catholic); Guinan, 42 F.Supp.2d at 852-53 (S.D.Ind.1998) (ministerial exception does not apply) (“the secular nature of [the teacher’s] position is underscored by the fact that the Archdiocese did not require teachers at [the school] to be Catholic and, as a matter of fact, some were not Catholic.”)

By this measure, even courts that have found ministerial plaintiffs who have daily schedules that have roughly the same ratio of religious to non-religious activities as Perich would find that the ministerial exception should not apply here.

For the reasons above, I concur.

. It is worth clarifying that "the ministerial exception” is fundamentally distinct from the statutory exceptions in federal antidiscrimination laws like the ADA and Title VII. See Douglas Laycock, A Syllabus of Errors, 105 Mich. L.Rev. 1169, 1181-82 (2007) (book review). The statutory exception to the ADA allows religious entities to "giv[e] preference in employment to individuals of a particular religion” and to "require that all applicants and employees conform” to the organization’s religious tenets. 42 U.S.C. § 12113 (d). The statutory exception only covers religious discrimination, but it applies to any employee of a religious entity. See Laycock at 1182. In contrast, the ministerial exception is a separate judge-made exception rooted in the First Amendment designed to allow religious organizations to hire and fire religious leaders according to any criteria they choose. See id. at 1181; Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir.2007). The ministerial exception is broad — it covers any kind of discrimination — but applies only to religious leaders, or those whose duties are “ministerial.” See Laycock at 1182.

. Courts have struggled in determining the proper application of the ministerial exception to teachers at religious schools. A student note points out that application of the primary-duties test has created split authority in several areas, including regarding parochial school teachers. See Note, The Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test, 121 Harv. L.Rev. 1776, 1788 (2008). And several courts have recognized the lack of uniformity in this area. See Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir.2008) (“Circuit courts applying the ministerial exception have consistently struggled to decide whether or not a particular employee is functionally a 'minister.' ”); Coulee Catholic Sch. v. Labor and Indus. Rev. Comm., 320 Wis.2d 275 , 768 N.W.2d 868, 881 (Wis.2009) (explaining contrasting ways in which courts have interpreted primary-duties test); Weishuhn v. Catholic Diocese of Lan *783 sing, 279 Mich.App. 150 , 756 N.W.2d 483, 492-93 (2008) (listing cases in which ministerial exception has been applied to teachers, and cases in which it has not). See also Petition for Writ of Certiorari, Archdiocese of Washington v. Moersen, 128 S.Ct. 1217 , 170 L.Ed.2d 59 (No. 07-0323) (Sept. 7, 2007) ("teachers at church-related schools have been included within the ministerial exception by some courts and excluded by others"). The Supreme Court has declined to weigh in on the issue. See Moersen, 552 U.S. 1179 , 128 S.Ct. 1217 , 170 L.Ed.2d 59 (2008) (mem.); The Ministerial Exception, supra, at 1776 n. 3 (noting certiorari denials in 2006 and 2007).

. The majority cites Dole for the original proposition that parochial school teachers are not ministerial employees for purposes of the ministerial exception. However, Dole addresses whether a specific statutory exception applies. See id. at 1396-97 . (evaluating whether teachers are ministers for purposes of statutory exception from the definition of "employees” in the Fair Labor Standards Act).