It has been over five years since the U.S. Supreme Court handed down its landmark ministerial exception decision in the Hosanna-Tabor case. But the federal appellate courts are just beginning to hear their first cases in the post-Hosanna-Tabor world, and the latest case from the U.S. Court of Appeals for the Second Circuit explores the Supreme Court’s decision and its effect. In this case, Fratello v. Archdiocese of New York, the Court had to decide whether a “Lay” Principal at a Catholic School was barred by the ministerial exception from bringing claims of employment discrimination after her contract was not renewed.1 The Second Circuit concluded that the Principal was a minister within the meaning of the exception: “Although her formal title was not inherently religious, we think that the record clearly establishes that she held herself out as a spiritual leader of the school, and that she performed many significant religious functions to advance its religious mission.”2
The Lay Principal’s Role
The case involved a former “Lay” Principal of a Catholic school in New York, meaning that she did not belong to a religious order. Among other things, it was clear that the Principal was tasked with providing spiritual leadership to the School. The record was full of documentation regarding the mission of the Archdiocese Schools and the importance of the Principal’s role to that religious mission. The Principal worked for the school for several years until she was informed that the School would not renew her contract. She then brought an employment discrimination claim against the Archdiocese for gender discrimination and retaliation under state and federal law.
The religious defendants moved for summary judgment, arguing that the ministerial exception barred the former Principal’s claims. The district court agreed and entered judgment for the religious bodies. The Principal appealed and the U.S. Court of Appeals for the Second Circuit ultimately affirmed, agreeing with the School.
Ministers “Flatly Barred” from Suing their Religious Employers for Discrimination
In explaining its conclusion that the ministerial exception barred the Principal’s claims, the appellate court spent a good portion of its opinion examining the scope and effect of the Supreme Court’s decision. First, the Court noted how Hosanna-Tabor foreclosed any suggestion that lawsuits against religious organizations could go forward if the reason for the termination was non-religious. The main case in the Second Circuit that established the ministerial exception had at least left open that possibility. Hosanna-Tabor, however, made clear that there is no requirement that the reason for the termination be religious: ministers are “flatly barred from bringing employment-discrimination claims against the religious groups that employ or formerly employ them.”3
Religious Function Is Key
Next, the Court noted that, therefore, the only question that matters is whether the employee is a minister. And to this point, Hosanna-Tabor did not limit or dictate what courts can take into account when answering that question. It turned then to Justice Alito’s concurrence in Hosanna-Tabor, which, though not binding, the Court considered helpful and persuasive. In that concurrence, Justice Alito, joined by Justice Kagan, noted that a formal title is neither necessary nor sufficient; instead, courts should focus on the function the person performed for the religious body.
So, the Second Circuit concluded that religious function was key to answering the question of who is a minister for the purposes of the exception. Religious function was what courts should primarily focus on in this inquiry:
It is the relationship between the activities the employee performs for her employer, and the religious activities that the employer espouses and practices, that determines whether employment-discrimination laws implicate the religious group’s First Amendment rights by interfering with its freedom to exercise its religion, or establishing in that religion’s stead other beliefs or practices.4
Not All Parochial-School Principals Are Ministers, but This Principal Was a Minister Because of Her Religious Function
The Court then turned to answering the question in this case, ultimately concluding the Principal was a minister. The Court was quick to point out that not all parochial school principals should be presumed to be ministers. To do so would be to discard the Supreme Court’s call to consider all the circumstances of an individual plaintiff’s employment.
The Court then went on to examine the four considerations the Supreme Court used in Hosanna-Tabor, noting that they were adequate to resolve the case at hand. But ultimately, the Court thought the Principal’s religious functions answered the question.
Considering the Principal’s formal title “Lay Principal” the Court concluded this weighed against applying the doctrine. But the Court cautioned that title alone is not dispositive: a ministry can no more insulate itself from liability by bestowing ministerial titles on all employees than ministerial employees can avoid the exception by showing that they have secular titles.
The Court then considered the substance reflected in the Principal’s title. While the title of “Lay Principal” might appear secular, the Court noted that it connoted leadership within the context of a religious organization, which weighed in favor of the exception.
In terms of the Principal’s use of her title, the Court recognized that while the Principal did not accept a formal call to religious service, it was undisputed that she understood she would be perceived as a religious leader.
Most important, however, was the Court’s examination of the functions the Principal performed for the Catholic school. The Principal performed many functions that demonstrated her role in carrying out the School’s religious mission. Not only did she perform these functions, she was evaluated on the quality of that performance, which, the Court noted somewhat ironically, had been quite positive.
The First Amendment Strikes the Balance
The Court concluded by noting that this case “lies at the center of the tension between an employer’s right to freedom of religion and an employee’s right not to be unlawfully discriminated against.”5 But the ministerial exception, as the Supreme Court has noted, resolves this tension in favor of religious freedom because “the First Amendment has struck the balance for us.”6
This latest ministerial exception case is important because it is one of the first federal appellate court cases to really dig into the implications of the Hosanna-Tabor decision on a practical level. And, it appears the Court has stayed true to that decision, upholding the balance the Constitution has struck in favor of religious freedom.
1 No. 16-1271 (2d Cir. July 14, 2017).
2 Id. (slip op. at 5).
3 Id. (slip op. at 31).
4 Id. (slip op. at 37-38).
5 Id. (slip op. at 48).
6 Id. (quoting Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 196 (2012)).
Featured Image: ”Unnamed” by Jamie Taylor on Unsplash.
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