There are two main protections afforded to religious employers: the ministerial exception and Title VII’s coreligionist exception.
These protections extend only to certain employment decisions and do not insulate religious institutions from other general laws, such as tort and contract law.
Ministerial Exception
The ministerial exception is derived from the First Amendment’s Free Exercise Clause. A general First Amendment principle is church autonomy, meaning that the government should not interfere with internal matters of church control or become entangled in church matters. This protection for religious employers prevents “ministers” from bringing federal employment discrimination claims against their religious employers. The ministerial exception has been applied to prevent claims under Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the American with Disabilities Act. Essentially, this exception allows a religious employer to hire, fire, pay, or promote ministers on any ground without consideration of federal employment limitations. One court has explained that the ministerial exception “preserves a church’s essential right to choose the people who will preach its values, teach its message, and interpret its doctrines . . . free from the interference of civil employment laws.” Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1243 (10th Cir. 2010) (internal quotation marks omitted).
The exception only applies to those employees who are considered “ministers.” This may seem to refer to those who lead religious congregations or speak on Sunday mornings, but the United States Supreme Court has liberally construed who qualifies as a minister. The Supreme Court has not adopted a strict test as to who counts as a minister but rather considers multiple factors, such as the employee’s job title, whether the employee held him/herself out as a minister, the degree of religious training required for the position, and whether the employee’s job duties included important religious functions. Not all four factors must be present for an employee to be considered a minister, and not all factors are equally important. In fact, of all the factors, the most important factor in determining whether an employee is a minister is the employee’s job description and responsibilities. As Justice Alito has stated, “What matters, at bottom, is what an employee does.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2064 (2020). An employee’s title, job training, and how he/she refers to him/herself may be relevant but are not sufficient apart from the employee’s job responsibilities.
Coreligionist Exception
The coreligionist exception to Title VII is a statutory exemption from Title VII’s non-discrimination in employment mandate. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating in employment decisions based on race, color, religion, sex, and national origin. Title VII applies to (1) employers with at least 15 employees, (2) employment agencies, and (3) unions. Amid this broad anti-discrimination protection, Congress also wrote in a religious organization exception, also known as the coreligionist exception.
Under this exception, religious organizations, in making employment decisions, can give preference to members of their own religion. The exception does not allow religious organizations to discriminate in employment on any other basis such as race, sex, age, or disability. Therefore, this exception is narrower than the ministerial exception in that the permissible discrimination is restricted to religion but is broader than the ministerial exception in that the permissible discrimination extends to all employees, not just ministers. Just as with the ministerial exception, the coreligionist exception extends “to all forms of employment decisions, not just the initial hiring decision.” Hopkins v. Women’s Div., Gen. Bd. Global Ministries, 238 F. Supp. 2d 174, 179 (D.D.C. 2002).
There is no clear definition of what constitutes a “religious organization,” but courts have made clear that the purpose and character of the organization must be primarily religious. Courts have relied on factors such as whether
The entity operates as a non-profit (although for-profit companies may qualify for the exemption);
The entity makes a religious product;
The entity’s articles of incorporation or other documents state a religious purpose;
The entity is owned, affiliated with, or financially supported by a formally religious entity like a church or synagogue;
A formally religious entity participates in management;
The entity holds itself out to the public as religious;
The entity regularly includes prayer or other forms of worship in its activities;
The entity includes religious instruction in its curriculum; and
Its members are coreligionists.
Not all factors must be met, and courts do not necessarily consider each factor in every case. Nonetheless, the more factors that are present, the more likely an entity will be considered religious and can hire coreligionists under Title VII’s exception.
Taking Advantage of the Protections
Ministerial exception
Courts rely heavily on job descriptions in determining whether a particular employee qualifies as a minister under the ministerial exception. Religious entities should therefore consider the spiritual or religious nature of all their employees’ roles and explicitly include those spiritual or religious responsibilities in all job descriptions. Common expectations or responsibilities may include praying with others, leading others in worship, teaching or discipling others, incorporating religious teaching into other aspects of work, evangelizing to non-believers, and living as an example of a mature believer. A religious employer can require any ministerial employee to live according to the religion’s teachings and practices both in the employee’s personal and professional life. This expectation should also be stated in the job description. Any job description should also state that performance reviews are based on fulfilling the religious functions of the position.
Religious employers should also consider whether the title accurately reflects the religious significance of the position, whether the educational requirements reflect the religious training needed, and whether the job description accurately explains how the position contributes to achievement of the entity’s mission. Merely calling someone a minister will not automatically qualify that employee for the ministerial exception. No descriptions or titles should be used unless they accurately reflect the role and expectations of the position. If a church truly expects its janitor to pray with people who come after hours for help, then that expectation should be listed in the job description. However, if the church merely expects its janitor to clean the building, then it should not exaggerate the janitor’s role in an attempt to have all its employees qualify for the ministerial exception.
When examining religious training, courts do not require a seminary degree but rather examine whether the position requires any religious training at all. Such training could include simple Bible courses or a class about the organization’s teachings and beliefs. Regular attendance at a particular church or religious group for an extended amount of time might also suffice as religious training. A religious employer could also require and provide continuing education classes regarding spiritual formation and religious knowledge. Such requirements might be as simple as an annual course related to the employee’s field.
The Supreme Court has revealed its willingness to interpret the ministerial exception broadly. Religious employers should therefore seriously consider the roles each of their employees has and revise any job descriptions and titles to accurately reflect what is expected. Employers might be surprised to discover how many of their employees qualify as ministers for purposes of this First Amendment exception.
Coreligionist Exception
Because the coreligionist exception only applies to religious employers, an entity must prove that it is religious. To do so, an organization should seek to express its religious sincerity through as many above-mentioned factors as possible.
The organization should clearly state in its organizing and governing documents that it is religious. It can even incorporate a statement of belief. If it is affiliated with, receives support from, or is partially governed by a religious entity, like a church or denomination, then the organization should explicitly state so in some of its documents. The entity should be able to produce evidence that it holds itself out to the public as a religious organization. Such evidence could include statements by the CEO that the organization is religious or adheres to certain tenets. It could also include overt actions, like observing the Sabbath or playing Christian radio stations in stores. Other forms of evidence include offering times of prayer and worship and requiring all members or leaders to be coreligionists.
Protections Religious Groups Have in Employment Decisions
There are two main protections afforded to religious employers: the ministerial exception and Title VII’s coreligionist exception.
These protections extend only to certain employment decisions and do not insulate religious institutions from other general laws, such as tort and contract law.
Ministerial Exception
The ministerial exception is derived from the First Amendment’s Free Exercise Clause. A general First Amendment principle is church autonomy, meaning that the government should not interfere with internal matters of church control or become entangled in church matters. This protection for religious employers prevents “ministers” from bringing federal employment discrimination claims against their religious employers. The ministerial exception has been applied to prevent claims under Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the American with Disabilities Act. Essentially, this exception allows a religious employer to hire, fire, pay, or promote ministers on any ground without consideration of federal employment limitations. One court has explained that the ministerial exception “preserves a church’s essential right to choose the people who will preach its values, teach its message, and interpret its doctrines . . . free from the interference of civil employment laws.” Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1243 (10th Cir. 2010) (internal quotation marks omitted).
The exception only applies to those employees who are considered “ministers.” This may seem to refer to those who lead religious congregations or speak on Sunday mornings, but the United States Supreme Court has liberally construed who qualifies as a minister. The Supreme Court has not adopted a strict test as to who counts as a minister but rather considers multiple factors, such as the employee’s job title, whether the employee held him/herself out as a minister, the degree of religious training required for the position, and whether the employee’s job duties included important religious functions. Not all four factors must be present for an employee to be considered a minister, and not all factors are equally important. In fact, of all the factors, the most important factor in determining whether an employee is a minister is the employee’s job description and responsibilities. As Justice Alito has stated, “What matters, at bottom, is what an employee does.” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2064 (2020). An employee’s title, job training, and how he/she refers to him/herself may be relevant but are not sufficient apart from the employee’s job responsibilities.
Coreligionist Exception
The coreligionist exception to Title VII is a statutory exemption from Title VII’s non-discrimination in employment mandate. Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating in employment decisions based on race, color, religion, sex, and national origin. Title VII applies to (1) employers with at least 15 employees, (2) employment agencies, and (3) unions. Amid this broad anti-discrimination protection, Congress also wrote in a religious organization exception, also known as the coreligionist exception.
Under this exception, religious organizations, in making employment decisions, can give preference to members of their own religion. The exception does not allow religious organizations to discriminate in employment on any other basis such as race, sex, age, or disability. Therefore, this exception is narrower than the ministerial exception in that the permissible discrimination is restricted to religion but is broader than the ministerial exception in that the permissible discrimination extends to all employees, not just ministers. Just as with the ministerial exception, the coreligionist exception extends “to all forms of employment decisions, not just the initial hiring decision.” Hopkins v. Women’s Div., Gen. Bd. Global Ministries, 238 F. Supp. 2d 174, 179 (D.D.C. 2002).
There is no clear definition of what constitutes a “religious organization,” but courts have made clear that the purpose and character of the organization must be primarily religious. Courts have relied on factors such as whether
Not all factors must be met, and courts do not necessarily consider each factor in every case. Nonetheless, the more factors that are present, the more likely an entity will be considered religious and can hire coreligionists under Title VII’s exception.
Taking Advantage of the Protections
Ministerial exception
Courts rely heavily on job descriptions in determining whether a particular employee qualifies as a minister under the ministerial exception. Religious entities should therefore consider the spiritual or religious nature of all their employees’ roles and explicitly include those spiritual or religious responsibilities in all job descriptions. Common expectations or responsibilities may include praying with others, leading others in worship, teaching or discipling others, incorporating religious teaching into other aspects of work, evangelizing to non-believers, and living as an example of a mature believer. A religious employer can require any ministerial employee to live according to the religion’s teachings and practices both in the employee’s personal and professional life. This expectation should also be stated in the job description. Any job description should also state that performance reviews are based on fulfilling the religious functions of the position.
Religious employers should also consider whether the title accurately reflects the religious significance of the position, whether the educational requirements reflect the religious training needed, and whether the job description accurately explains how the position contributes to achievement of the entity’s mission. Merely calling someone a minister will not automatically qualify that employee for the ministerial exception. No descriptions or titles should be used unless they accurately reflect the role and expectations of the position. If a church truly expects its janitor to pray with people who come after hours for help, then that expectation should be listed in the job description. However, if the church merely expects its janitor to clean the building, then it should not exaggerate the janitor’s role in an attempt to have all its employees qualify for the ministerial exception.
When examining religious training, courts do not require a seminary degree but rather examine whether the position requires any religious training at all. Such training could include simple Bible courses or a class about the organization’s teachings and beliefs. Regular attendance at a particular church or religious group for an extended amount of time might also suffice as religious training. A religious employer could also require and provide continuing education classes regarding spiritual formation and religious knowledge. Such requirements might be as simple as an annual course related to the employee’s field.
The Supreme Court has revealed its willingness to interpret the ministerial exception broadly. Religious employers should therefore seriously consider the roles each of their employees has and revise any job descriptions and titles to accurately reflect what is expected. Employers might be surprised to discover how many of their employees qualify as ministers for purposes of this First Amendment exception.
Coreligionist Exception
Because the coreligionist exception only applies to religious employers, an entity must prove that it is religious. To do so, an organization should seek to express its religious sincerity through as many above-mentioned factors as possible.
The organization should clearly state in its organizing and governing documents that it is religious. It can even incorporate a statement of belief. If it is affiliated with, receives support from, or is partially governed by a religious entity, like a church or denomination, then the organization should explicitly state so in some of its documents. The entity should be able to produce evidence that it holds itself out to the public as a religious organization. Such evidence could include statements by the CEO that the organization is religious or adheres to certain tenets. It could also include overt actions, like observing the Sabbath or playing Christian radio stations in stores. Other forms of evidence include offering times of prayer and worship and requiring all members or leaders to be coreligionists.
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If you have questions regarding your rights as a religious employer, contact Davis Law Group today to set up a consultation with one of our experienced church and nonprofit, and employment law attorneys.
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