On January 11, 2012, the US Supreme Court issued an opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The key issue in the case was whether the Establishment and Free Exercise Clauses of the First Amendment barred an employment discrimination suit brought on a minister's behalf against her church.

Cheryl Perich worked as a teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a member congregation of the Lutheran Church-Missouri Synod. The Synod classifies teachers as "called" or "lay." Lay teachers do not have to be trained by the Synod or be Lutheran, and are appointed by the school board to one-year renewable terms. Called teachers, by contrast, are seen as having been called to their vocation by God, and must undergo additional training. Once a teacher is called, she receives the title "Minister of Religion, Commissioned." Although lay and called teachers generally perform the same duties, lay teachers are only hired if called teachers are unavailable.

Cheryl Perich became a called teacher after completing the requirements to do so. As a called teacher, Perich taught both secular and religious subjects, led her students in daily prayer and devotional exercises and took them to a weekly school-wide chapel service.

In 2004, Perich developed narcolepsy and took disability leave at the beginning of the 2004-2005 school year. In January 2005, she notified the school's principal that she would return to work in February. The principal responded that the school had already hired a lay teacher to fill Perich's position and expressed concern that she was not ready to return to work.

On January 30, Hosanna-Tabor held a meeting of its congregation, which voted to offer to:

Perich refused to resign and appeared at work on February 22, refusing to leave until she was given written documentation that she had reported to work. When the principal told Perich she would likely be fired, Perich responded that she had spoken with an attorney and would assert her legal rights. The congregation terminated her, citing Perich's "insubordination and disruptive behavior" on February 22 and her threat to sue.

Perich filed a charge with the EEOC, which brought suit against Hosanna-Tabor on Perich's behalf, claiming Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the suit, claiming unlawful retaliation under the ADA and the Michigan Persons with Disabilities Civil Rights Act. Hosanna-Tabor moved for summary judgment, claiming the suit was barred by the First Amendment because the claims centered on the employment relationship between a church and one of its ministers.

The district court held the ministerial exception applied and granted summary judgment for Hosanna-Tabor. On appeal, the US Court of Appeals for the Sixth Circuit vacated and remanded the decision, holding Perich did not qualify as a minister under the exception. The Supreme Court granted certiorari.

In a unanimous decision authored by Chief Justice Roberts, the Court first held that there is a ministerial exception to employment discrimination laws grounded in the Free Exercise and Establishment Clauses of the First Amendment. The Court found that requiring a church to accept or retain a minister it did not want infringed on both:

Although the Court declined to adopt a rigid formula to determine whether an employee qualifies as a minister under the exception, it held that Perich was a minister because:

The Court felt the Sixth Circuit had erred by failing to see any relevance in Perich's title, giving too much weight to the fact that lay teachers performed the same religious duties as Perich and overly emphasizing Perich's performance of secular duties. Although the amount of time spent on non-religious duties is relevant, the Court noted that factor cannot be viewed in isolation; courts must also consider the nature of the religious functions performed and the considerations listed above.

The Court refrained from deciding whether the ministerial exception would bar other kinds of suits, including employee suits alleging breach of contract or tortious conduct by religious employers.

Justice Thomas concurred, arguing a court should defer to a church's good-faith understanding of who qualifies as a minister under the exception instead of deciding itself whether an employee qualifies as a minister. Justice Alito also concurred, joined by Justice Kagan. Noting that other religions did not use the term "minister," Justice Alito argued courts should focus on the functions the employee performs, applying the exception to employees with roles in religious leadership, worship, ritual and expression.

The Court's decision confirms that the ministerial exception bars employment discrimination suits against religious employers by employees who qualify as ministers. In light of this decision, religious employers should consider whether their employees could qualify as ministers or lay employees, as lay employees may continue to bring employment discrimination suits. Employers should also be aware that this decision is limited to employment discrimination suits. Employees who otherwise qualify as ministers may continue to bring other employment-related suits against their employers.

For more information on employment discrimination generally, see Practice Note, Discrimination: Overview. For tips on minimizing legal risks in recruiting and interviewing, see Practice Note, Recruiting and Interviewing: Minimizing Legal Risk.