On August 9, 2011, NELA filed an amicus brief in support of the respondents in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al. (Case No. 10-553). The issue in this case is whether the First Amendment's so-called "ministerial exception" bars a claim that a parochial school teacher was dismissed in retaliation for stating that she was going to assert her rights under the Americans with Disabilities Act (ADA). In this case, Cheryl Perich was terminated from her teaching position after returning from medical leave. Though she primarily taught secular classes, Perich devoted approximately forty-five minutes of the seven hour school day to religious activities. When she attempted to return to work, the school prevented her from doing so and she told the school she planned to sue for discrimination. Perich was then sent a letter stating that she had "damaged, beyond repair" her working relationship with Hosanna-Tabor by "threatening to take legal action." Approximately, one month later she was fired. The U.S. Equal Employment Opportunity Commission (EEOC) decided to take her case to court in late 2007 and Perich intervened in early 2008. The district court granted summary judgment in favor of Hosanna-Tabor, dismissing the claim on the grounds that the court could not inquire into her claims of retaliation because they fell within the "ministerial exception" to the ADA. The Sixth Circuit vacated the summary judgment dismissal, holding that the ministerial exception did not bar Perich's claims.
NELA's brief argues that for two centuries American courts have heard and resolved employment-related claims of ministers. Religious organizations themselves have filed suit asking courts to determine who was entitled to serve as the minister of a congregation. Since the early nineteenth century lower courts have recognized that some, but not all, of these cases turned on the resolution of theological disputes, and have declined to decide such cases. NELA contends that this neutral-principles approach remains the appropriate method of addressing employment disputes regarding employees of religious organizations. In addition, our brief argues that the First Amendment right of free expression applies in equal measure to religious and non-religious organizations. Finally, we assert that adoption of the proposed "ministerial exception" would force the lower courts to face a plethora of vexing constitutional questions, including whether the determination of whether a particular employee engages in "important ministerial functions" is an objective or subjective test and which types of legal claims would be barred by the proposed "ministerial exception."
Author Professor Eric Schnapper (WA)