Wednesday, July 27, 2011
Amicus Support Requested: Hosanna-Tabor
Leslie C.Griffin and Caroline Mala Corbin have drafted an amicus brief in the Hosanna-Tabor case, which involves a ministerial exception to employment laws and has important implications for gender discrimination. They are asking interested law professors, particularly First Amendment Law professors and Employment Law professors, to join them in supporting the brief. Here's their description of the case and the issues, which I am happy to pass along:
Cheryl Perich was a kindergarten and fourth grade teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K-8 school in Redford, Michigan. After she became suddenly ill at a school event, Hosanna-Tabor granted her a disability leave of absence and assured her that she would still have a job when she returned. After her narcolepsy was treated and her doctor cleared her to return to work, however, school officials questioned whether she was better and urged Perich to resign voluntarily from her position. After Perich told the principal that she would sue for disability discrimination, she was fired. Correspondence from the school indicates that she lost her job because of her insubordination and her threats to take legal action.
Perich sued for discriminatory retaliation under the Americans with Disabilities Act. The success of Perich’s retaliation claim turns on whether the Supreme Court finds that she is a minister. If she is not a minister, she will probably win. After all, the school stated in writing that a main reason for Perich’s termination was her threatened lawsuit. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.
The ministerial exception grants religious organizations immunity from employment discrimination suits brought by "ministerial" employees, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability (and in fact their Governing Manual for Lutheran Schools states that the school will not discriminate on these grounds), ministers cannot sue the school for disability discrimination. The lower courts, who created and uniformly apply the ministerial exception, claim that the religion clauses require it
The ministerial exception has breathtaking consequences for the civil rights of thousands of women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (school, mosque, synagogue, church, hospital, nursing home, social service organization, faith-based organization, non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers Compensation laws and state tort and contract law) as long as the employer decides that the employee performs “important functions” in the religion.
We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court. Our brief explains why the Free Exercise and Establishment Clauses do not require the ministerial exception. The Free Exercise Clause does not create a zone of church autonomy to which the laws do not apply. Indeed, Employment Division v. Smith held that neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the American with Disabilities Act is a neutral law of general applicability. The Court’s church property cases do not hold otherwise.
As for the Establishment Clause, applying the ministerial exception in this case actually causes more Establishment Clause problems than simply resolving the retaliation claim. Deciding whether Perich’s termination was caused by protected activity, when the school wrote her a letter stating that it intended to fire her because she threatened legal action, does not entangle the court in any theological disputes. In contrast, deciding whether Perich’s service as a Christian role model for her students is important to the religious mission of the school requires the court to delve into the religious beliefs of the Hosanna-Tabor Evangelical Lutheran Church. Resolving a theological dispute about the religious role of schoolteachers is precisely the kind of doctrinal issue the courts are incompetent to make, yet the ministerial exception requires such theological analysis in this case.
If you are interested in learning more about the case, reading a copy of the brief and signing on to it, please contact us at the following e-mail addresses:
Leslie C. Griffin & Caroline Mala Corbin
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I don't mean to threadjack and/or debate the merits of the ministerial exception, but one line in this post really bugged me.
"We wish to ensure that the range of scholarly views on the ministerial exception – including those that understand the widespread problem of discrimination and the need for legal protection from discrimination – are before the Court."
The phrase "including those that understand the widespread problem of discrimination" etc. implies that those on the other side do not "understand discrimination." Is that fair? Or do they merely believe that doctrine provides a limit, or, in weighing values, believe that the religious-institutional concerns are so high that they outweigh the also-weighty discrimination concerns?
If my critique seems petty or picky, consider its reverse. How would you read a post from your opponents that said "including those that understand the need for religious freedom" etc.? I think you could fairly respond, "Hey, that's not fair! I appreciate religious freedom as much as the next person, but that's not the issue here because . . ."
I'd like to see us all assume our opponents' good faith beliefs, and assume that in areas of competing goods, we all "understand" and appreciate that both are goods, however we come out when they clash.
Let me clarfiy, so that I'm not a hypocrite, that I don't think your comment was in bad faith, either. I think it's the kind of thing many of us routinely say, and that it takes special effort to bend over backwards to affirm the others' good faith by using language to that effect.
Thanks for considering.
Posted by: plea for mutual good faith | Jul 28, 2011 8:15:32 AM
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