Cheryl Perich was terminated from her position as a “called” teacher at Hosanna-Tabor Evangelical Lutheran Church and School [“Hosanna-Tabor”]. Hosanna-Tabor is an ecclesiastical corporation in Redford, Michigan that runs a K-12 school and church. It identifies itself online as a religious institution providing a “Christ-centered education.”
The school faculty is comprised of “contract” teachers and “called” teachers. Neither type of teacher is required to be a member of the Lutheran Church. Contract teachers are hired for one-year terms by the Board of Education, while called teachers are hired “on an open-ended basis” by the Board of Education, Board of Elders, and Board of Directors. The three Boards are responsive to the congregation as a whole. Called teachers are also given extra employment protection and cannot be dismissed without cause.
Teachers that seek a “call” must first complete a “colloquy” of Christian classes. Thereafter, the teacher is certified and placed on a list for future selection as a called teacher. Upon being selected, a teacher also receives his/her “call” and the title of “commissioned minister”.
Perich first was employed as a contract teacher for kindergarten students with Hosanna-Tabor in July 1999. Before her one-year contract expired she had completed the colloquy and was hired in March 2000 as a called teacher. As a called teacher, Perich’s duties remained nearly identical. However, she was given some additional duties related to religion -- she taught religion four times each week, attended a chapel service once each week, and facilitated class prayer and devotional every day for a few minutes.
In June 2004, Perich suddenly became very ill at a church social gathering. After undergoing medical tests, but before doctors had made a diagnosis, she was asked by Hosanna-Tabor Principal Stacy Hoeft to take a leave of absence. Perich agreed because of Hoeft’s guarantees that she would be retained as a called teacher when she returned. In December 2004, Perich was diagnosed with narcolepsy (a sleep disorder causing excessive sleepiness), and she informed Hoeft that a doctor would clear her to return to work in three months once her prescribed medication stabilized her condition.
On January 21, 2005, Perich was informed that the Hosanna-Tabor school board was poised to amend school policy to require that all employees resign their “call” if they take more than six months of disability leave. On January 27, Perich informed Hoeft that she would be returning to work between February 14 and 28. Hoeft responded with concern because she felt Perich’s condition would endanger the safety of the students and the students would be better served by keeping their current substitute teacher. On January 30, the congregation accepted a proposal by the Board to offer a settlement to Perich, in which she would resign her call and receive in return payment for some of her health insurance premiums.
At a February 13 meeting the Board presented the settlement to Perich. However, Perich responded by providing the Board with a note from her doctor clearing her to return to work on February 22. When Perich showed up to work on that day, Hosanna-Tabor claimed it had no work for her and asked her to leave. Perich insisted on receiving a letter memorializing that she came to work that day so that she was in compliance with Hosanna-Tabor’s school handbook policy. School administrators supplied her with such a letter. On that same day, Perich received a telephone call from Hoeft, who said that Perich would most likely be fired. At this point, Perich told Hoeft she would sue if she was fired.
On March 19, the Board informed Perich that they were considering removing her call, because she had “damaged, beyond repair” any working relationship with Hosanna-Tabor by her disruptive behavior on February 22 and her threats to bring a lawsuit. Soon after, Perich retained an attorney who wrote to the Board claiming that their actions were illegal. On April 10, 2005 the congregation revoked the call.
Perich filed a discrimination claim with the U.S. Equal Employment Opportunity Commission (EEOC) on May 17, 2005. After a factual and legal investigation, the EEOC filed suit on September 28, 2007 in the U.S. District Court for the Eastern District of Michigan alleging violations of the ADA. Perich filed a motion to intervene and was granted leave to file her own complaint on April 10, 2008. She alleged employment discrimination and retaliation by Hosanna-Tabor in violation of the ADA and Michigan’s Persons with Disabilities Civil Rights Act. That court granted summary judgment to Hosanna-Tabor on Perich’s employment discrimination and retaliation claims on the basis that the claims fell into the ministerial exception to the ADA. Perich and the EEOC appealed to the Sixth Circuit. The Michigan law closely follows the ADA and is resolved under the ADA.
Perich claimed that Hosanna-Tabor discriminated against her under the ADA by retaliating against her after she threatened to sue. The ADA retaliation provision prohibits employers from retaliating against an employee who “oppose[s] an act or practice” that violates the ADA or brings/threatens to bring a claim under the ADA. However, the “ministerial exception” to the ADA allows religious organizations to “give preference in employment to individuals of a particular religion.” Likewise, religious organizations are permitted to “require that . . . employees conform to the [organization’s] religious tenets [sic].”
According to the Sixth Circuit, the ministerial exception is “narrowly drawn” so that employees of religious entities are protected from discriminatory retaliation. Specifically, a religious entity can give preference in employment or require applicants and employees to follow religious tenets in order to gain employment, but is prohibited from “discriminat[ing] against an individual who satisfies the permitted religious criteria because that individual has a disability.”
Nonetheless, the ministerial exception precludes jurisdiction for claims regarding the employment of ministerial employees by a religious organization. This means that an employment discrimination claim is barred by the exception if: (1) the employer is a religious institution; and (2) the employee is a ministerial employee. Hosanna-Tabor is a religious institution, as it was incorporated as a “religiously affiliated school”.
The emphasis of the court’s analysis was on whether Perich was a ministerial employee. In order to determine whether an employee is ministerial, the court applied a “primary duty” test, which asks whether the “primary duties [of the employee] consist of teaching, spreading the faith, church governance, or supervision or participation in religious ritual or worship.” Moreover, this test required the court to “objectively examine an employee’s actual job functions, not her title” in making a determination on whether she is a minister.
The court reasoned that the trial court erred in classifying Perich as a ministerial employee, where she spent most of her workday teaching secular subjects and primarily used secular textbooks. In this way, Perich’s participation in religious activities did not rise to the level of a primary function. Moreover, teachers at Hosanna-Tabor were not required to be a Lutheran to gain employment or even teach religious classes. In summary, Perich’s classification as a “commissioned minister”, her admittedly religious title, did not outweigh the factual determination that called teachers have essentially identical duties to contract teachers, who are not required to take the Christian colloquy.The ministerial exception is also motivated by the concern “that secular authorities would be involved in evaluating or interpreting religious doctrine.” Tomic, 442 F.3d at 1039 (quoting Combs v. Central Texas Annual Conference of United Methodist Church, 173 F.3d 343, 350 (5th Cir. 1999)). Hosanna-Tabor argued that even if the ministerial exception did not apply, “Perich violated church doctrine by not engaging in internal dispute resolution,” allegedly required by church doctrine. The court found this argument without merit, holding that a trial court would not be required to interpret religious doctrine. Instead, the claims brought by Perich would merely require a court to determine whether she has made a prima facie claim for retaliation. Moreover, the court found that the Hosanna-Tabor employment manual “clearly contemplate[d]” employee protections including freedom from discrimination. In addition, during the frequent correspondence between Perich and Hosanna-Tabor officials, Perich received no notification, written or oral, that there was a doctrinal internal dispute resolution process that she might be required to exhaust.
The Sixth Circuit ruled:
As noted above, the Court in Hosanna-Tabor applied a “primary duties” test to determine whether Perich was a ministerial employee for purposes of the ADA. Several other federal Courts of Appeals have applied a similar test in the employment discrimination context including the Fourth, Seventh, Eighth, and D.C. Circuits.
Circuit courts applying the primary duties test are reaching relatively consistent results as to whether a parochial school teacher is in fact a ministerial employee. Teachers that are engaged in primarily religious instruction of students have been found to be ministerial employees and vice versa. Like the Sixth Circuit in Hosanna-Tabor, the Fourth Circuit in Dole v. Shenandoah Baptist Church (1990) ruled that a teacher that incorporated religious material into a traditionally secular academic curriculum was not a ministerial employee.
However, the Fifth Circuit has developed its own multi-factor test that creates a broader ministerial exception. In Starkman v. Evans (1999), the Fifth Circuit considered whether employment decisions are made primarily on religious criteria, whether the plaintiff was qualified and authorized to perform religious ceremonies, and whether the plaintiff engaged in any activities that are traditionally religious. Using this test, the Fifth Circuit determined that a choir director employed by a church was a ministerial employee, and thus the ADA ministerial exception applied. The Ninth Circuit adopted a similar test under the Fair Labor Standards Act in Alcazar v. Corporation of the Catholic Archbishop of Seattle (2009).
In summary, the circuits within the Southeast ADA community are not in agreement as to the test to apply to determine whether an employee is ministerial. While the Fourth and Sixth Circuits have applied the primary duties test, the Fifth Circuit has applied a multi-factor test. Although the primary duties test has been adopted by the majority of circuits, the fact that the Ninth Circuit recently adopted a multi-factor test similar to the Fifth Circuit suggests that circuits may be receptive to adopting tests other than the primary duties test. Therefore it is vital for a practitioner in the Southeast ADA states to be aware of this split between Circuit Courts on the proper test for a ministerial employee.
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