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In the unanimous Hosana-Tabor v. EEOC decision issued January 11, 2012, the U.S. Supreme Court recognized for the first time a "ministerial exception" to virtually all forms of employment discrimination. The "ministerial exception" as announced by the Court is not a prohibition against asserting claims against religious organizations, rather an affirmative defense.

The facts of the case are straightforward: Cheryl Perich was employed by Hosanna-Tabor Evangelical Lutheran Church and School as a "lay" teach in 1999. In 2000, she completed requirements to become a "called" teacher. A called teach has the formal title: "Minister of Religion, Commissioned." She taught mainly secular subjects, but did teach a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. In 2004 she was diagnosed with narcolepsy, which required her to begin the 2004-2005 school year on disability leave. On January 27, 2005, she notified the school that she was able to return to school. The school principal responded by saying that her position had been filled and the school was concerned that she was not ready to return. On January 30, 2005 the church congregation voted to release Perich from her call and offering what amounted to a severance payment in return for a resignation. Perich declined and was terminated.

The Court discussed the history and implications of the Religion Clause contained in the First Amendment. The Court then recognized the "ministerial exception" stating:

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According to the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The Court then concluded that Perich's position was that of a minister; therefore, the employment laws, specifically the Americans with Disability Act, did not apply. The court considered her calling, title, and circumstances surrounding her commissioning among other facts. The Court did note that title alone will not necessarily mean a church employee is a "minister".   The Court did not find it dispositive that Perich performed similar duties to that of lay teachers. Nor, did the Court find that the individual being considered a minister perform exclusively religious functions.

It is apparent that churches and religious organizations have wide discretion over their employment decisions, but should still be cautious when making those decisions.

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A recent 8th Circuit decision demonstrates the importance of responding investigating and responding to claims of harassment and discrimination.  In Crawford v. BNSF Railway Co., the plaintiffs alleged that their supervisor sexually and racially harassed them on a frequent basis.  The court granted judgment in favor of the employer because the employer was able to show that it acted reasonably to prevent and correct any sexually harassing behavior and the employees failed to take advantage of the preventive and corrective opportunities provided by the employer.

The employer not only distributed its anti-harassment policies but also followed the policies.  The company had counseled the alleged harasser previously about workplace behavior and required him to attend a seminar.  The company had a hotline employees could use to make complaints.  The company investigated each and every complaint it received through the hotline.  Upon notice of the plaintiffs' complaints, the company placed the alleged harasser on administrative leave, investigated the complaints, and terminated the alleged harasser within two weeks.  The court found these facts, coupled with the plaintiffs' failure to take advantage of the complaint process or hotline, granted judgment in favor of the employer.

As an employer, you cannot prevent an employee from asserting a claim, but you can decrease your potential liability by following a few steps:

1.      Adopt and distribute anti-harassment/discrimination policies.  If you don't have any policies that prohibit harassment and discrimination adopt them now.  Make sure your employees know that you have the policies and give them a copy of the policy.

2.      Educate your employees.  Ensuring that your employees understand the policy means more than handing it to them on the first day of work.  Hold periodic training with your employees that depicts illegal discrimination or harassment and educate them on the appropriate ways to report potential discrimination or harassment.

3.      Investigate all complaints.  When an employee complains of potential discrimination or harassment investigate the complaint.  Do not dismiss a complaint because it doesn't seem valid on its face.  Interview potential witnesses, talk to managers, make a written report.  Obviously, the seriousness of the complaint may warrant a more detailed investigation, but all complaints should be afforded some level of investigation.

4.      Take action.  Taking action doesn't always mean discipline or termination.  You may discover that certain employees need additional training or counseling.  Sometimes a complaint cannot be substantiated.  Even in those situations, take action by following-up with the complaining employee and making a written record of your investigation.

Having a proven track record of viewing complaints as serious demonstrates to the court that your company is committed to preventing and correcting discrimination and harassment in the workplace.

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