The First Amendment of the United States Constitution prohibits the government from establishing a state-sponsored religion. In 2012, the case Hosanna-Tabor Evangelical Lutheran Church v. EEOC, the United States Supreme Court ruled that the First Amendment bars employment discrimination claims from being brought against religious-based employers (such as churches or church affiliated schools) when the employee is a “minister.” The opinion used a multi-factor analysis to decide when the exception applies. The key question is whether the terminated employee qualifies as a “minister.” In making that determination, the Supreme Court said courts should consider the title given to the employee, the substance reflected in that title, the employee’s own use of the title and the important religious functions that the employee performs for the employer. 

Now, before the Supreme Court are two cases in which the government is asking the Court to revisit that standard. In each case, a religious school terminated the employment of employees who were teachers. One employee brought a claim saying she was terminated because of her age. The other employee claimed she was terminated due to a disability. In each case, the trial court dismissed the claims under the Supreme Court’s Hosanna-Tabor decision, concluding that the claims of the employees were barred because their employers were religious organizations and that the employees were ministers. Each decision was then reversed by the Ninth Circuit Court of Appeals because, among other reasons, the teachers taught a multitude of subjects, not just religion, and did not hold themselves out to be ministers. The schools then appealed to the Supreme Court. 

In the lower courts, the EEOC sided with, and argued on behalf of, the employees. With the change in administrations, the EEOC filed a “friend of the court” brief in the Supreme Court siding with the employers. The EEOC in its brief argues that as teachers, the terminated employees were required to teach religious beliefs espoused by the schools and, therefore, were ministers. The EEOC argued that the ministerial exception applies to any employee "who preaches a church’s beliefs, teaches its faith or carries out its religious mission.” In close cases, the EEOC asserts "…facts that demonstrate a religious organization sincerely regards its employee as performing such important religious functions should be dispositive." 

The Supreme Court is set to hear oral arguments during April 2020.  

While the friend of the court brief filed by the EEOC represents a shift in direction in favor of religious employers, it also potentially reflects a renewed commitment to protecting religious expression in the workplace by employees. Protecting religious beliefs in the employer/employee context appears to be an important priority of this administration. 

If you have any questions about requirements applicable to employers regarding accommodation of religious beliefs in the workplace, please contact Sean Monson by calling (801) 532-1234 or send an email to