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Sexual Orientation And Identification: The Black Mark Of The “Ministerial Exception”

by | Oct 5, 2022 | Employment Discrimination, Employment Law, LGBTQ Discrimination, National Origin Discrimination, Religious Discrimination, Retaliation, Wrongful Termination |

Whether your religious institution employer can get away with discrimination based on a sincerely held religious belief most often depends on whether it qualifies for what is called the “ministerial exception.” This is an issue that arises regularly for members of our lesbian, gay, bisexual, transgender, queer, question, asexual, gender neutral and other sexual orientation and identity community.

In today’s super awesome best of the best employment lawyer blog, we are going to use the United States Court of Appeals for the Seventh Circuit recent decision in Starkey v. Roman Cath. Archdiocese of Indianapolis, Inc., 41 F.4th 931 (7th Cir. 2022) to explore what the mistrial exception means.

What is the “ministerial exception”?

Wrongful Discrimination Lawyer Answer: The ministerial exception is grounded in the First Amendment’s Religion Clauses, which bars the interference with the selection and control of a religious organization’s ministers. Under this exception, Courts must stay out of employment disputes involving employees who hold certain important positions with churches and other religious institutions. (Best Law Read: “Can I Sue a Religious Employer for Employment Discrimination? I Need a Lawyer!”; Are Churches Allowed To Discriminate In Employment?;).

In Starkey, the United States Court of Appeals for the Seventh Circuit laid out the background and analysis of how the ministerial exception is applied:

The Supreme Court unanimously endorsed the ministerial exception in Hosanna-Tabor. There, the Court considered a teacher’s retaliation claim against an Evangelical Lutheran school under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. 565 U.S. at 177–79, 132 S.Ct. 694. When deciding whether the teacher was a minister, the Court declined to “adopt a rigid formula.” Id. at 190, 132 S.Ct. 694. Rather, it considered all the circumstances of employment including: (1) “the formal title given” by the church; (2) “the substance reflected in that title”; (3) the individual’s “own use of that title”; and (4) “the important religious functions” the individual performed for the church. Id. at 192, 132 S.Ct. 694. The Court noted that the school held the teacher “out as a minister, with a role distinct from that of most of its members”; her title “reflected a significant degree of religious training followed by a formal process of commissioning”; she held herself out as a minister; and her “job duties reflected a role in conveying the Church’s message and carrying out its mission.” Id. at 191–92, 132 S.Ct. 694. The Court ruled that the teacher was a minister, clarifying that the ministerial exception is “not limited to the head of a religious congregation.” Id. at 190, 132 S.Ct. 694.

Eight years later, in Our Lady of Guadalupe, the Court reviewed the consolidated appeals of two Catholic school teachers who alleged they were wrongfully terminated in violation of the ADA and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. 140 S. Ct. at 2056–59. The Court held that the ministerial exception barred both suits because there was “abundant record evidence that [both teachers] performed vital religious duties.” Id. at 2066, 2069. Even though their “titles did not include the term ‘minister,’ and they had less formal religious training, … their core responsibilities as teachers of religion were essentially the same.” Id. at 2066. The teachers were “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.” Id. They prayed and attended Mass with students and “prepared the children for their participation in other religious activities.” Id. The schools’ faculty handbooks stated that the teachers “were expected to help the schools carry out this mission.” Id.

Starkey at 939.

What happened in Starkey?

Top LGBTQ+ Lawyer Answer: The Seventh Circuit applied the ministerial exception test to determine whether an employee who worked as a guidance counselor at a Catholic high school is a minster and whether the ministerial exception applied to their discrimination claims.  In this case, the Employee worked as a guidance counselor for the Employer, a Catholic high school, Later, she became the Co-Director of Guidance. This position involved supervision of the school’s guidance counselors and oversight of the department’s social work. Her responsibilities included tasks related to the budget, course catalog, course description book, and curriculum updates from the Indiana Department of Education. As a supervisor, she also discussed religious topics with staff and administration. For example, the Employee instructed staff on how to prepare students of different faiths for the Catholic liturgy. The employee also helped draft performance criteria for the Employer to evaluate the guidance counselors under her supervision. The criteria included things such as “school counselor embodies the charisms of Saint John XXIII [Angelo Roncalli] and lives out his traits.” She also served on the school’s main leadership body, the Administrative Council, which was responsible for making decisions related to the school’s religious mission.

While the Employee acted as the Co-Director of Guidance for a Catholic school, she is not a practicing Catholic, nor had she received any religious training or claim religious tax deductions while employed. However, the Employer implemented a one-year employment contract for teachers and guidance counselors, which included a “morals clause”. From 2007 to 2017, the Employer used a contract titled, “School Teacher Contract”, which required employees to refrain from “any personal conduct or lifestyle at variance with the policies of the Archdiocese or the moral or religious teachings of the Roman Catholic Church.” Failure to do so would result in “default under th[e] contract.” An employee was also in default if she engaged in “[c]ohabitation (living together) without being legally married.” The school principal and the pastor could also “suspend or terminate the employment” of a defaulted employee at his or her discretion.

In May 2018, the Employee signed a new contract with the Employer titled, “School Guidance Counselor Ministry Contract,” which came with the “Archdiocese of Indianapolis Ministry Description.” The updated contract included a similar morals clause, but now stated that an employee was in default if the employee were to engage in a relationship “contrary to a valid marriage as seen through the eyes of the Catholic Church,” which defines marriage as between a man and a woman. Catechism of the Catholic Church ¶ 1660 (2d ed. 2016). Additionally, the accompanying Ministry Description defined the primary functions of a school guidance counselor as: “Adhering to mission and within the school’s supervisory structure, including the school principal and pastor or high school principal and president, the school guidance counselor will collaborate with parents and fellow professional educators to foster the spiritual, academic, social, and emotional growth of the children entrusted in his/her care.” The Ministry Description also labeled guidance counselors “minister[s] of the faith,” and stated that their position included “[f]acilitat[ing] [f]aith [f]ormation.”

In August 2018, the Employee’s colleague—the other Co-Director of Guidance—was placed on administrative leave after an Archdiocesan priest learned that she had entered a same-sex union. That same month the Employee informed the Employer that she too was in a same-sex union. The Employer permitted her to finish her contract, but at the end of the year, she received a letter from the principal explaining that her employment would not be renewed for the 2019–20 school year because her conduct violated the terms of her contract. (Check out “Can my Church Refuse to Hire Gay Cooks? Best LGBT Lawyer Help!”).

In July 2019, the Employee filed a complaint alleging that the Employer violated Title VII of the Civil Rights Act of 1964, bringing claims for discrimination, retaliation, and hostile work environment. Title VII protects employees from discrimination bases on race/color, religion, gender/sex (including pregnancy and LGBTQ+ status), national origin, and disability.

What was the Court’s decision in Starkey?

Best Employment Lawyer Answer: The United States Court of Appeals for the Seventh Circuit held that the Employee was unable to bring her claims against her former Employer because she fell under the ministerial exception, as the Employer “expressly entrusted” her with “the responsibility of communicating the Catholic faith to students” and guiding the religious mission of the school. More specifically, as the Co-Director of Guidance and a member of the Administrative Council, the Employee was one of the school leaders responsible for the vast majority of the Employer’s daily ministry, education, and operations. She was expected to take part in the school’s day-to-day operations, which included responsibilities that conveyed the Catholic faith to students, such as leading prayer over the public address system more than once. Her employment agreements and faculty handbooks recognized these job duties and responsibilities by stating that she was expected to carry out the Employer’s religious mission. Lastly, the Employee also held the Employee out as a minister. She was identified as a “minister of the faith” in her job description and employed under a “Ministry Contract” beginning in the 2017-2018 school year.

How do I sue my employer?

Best Employment Lawyer Answer: Every case is different and involves a particularized set of facts that need to be properly evaluated. That is why you should call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?; Why Having Skilled Employment Attorneys Is Critical). Call our lawyers in Ohio, Michigan, and North Carolina to get help now. Spitz, The Employee’s Law Firm, and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.


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