Pace Law School Prof. Emily Waldman, an expert on employment law, is available to speak to the media about Hosanna-Tabor Church v. EEOC, which will be argued before the Supreme Court on Wednesday.
“Hosanna-Tabor Church v. EEOC is a major–and fascinating–First Amendment case. The Supreme Court has never ruled on the threshold legal question here: whether courts should recognize a ‘ministerial exception’ to employment discrimination laws. Although employment discrimination laws generally allow religious institutions to discrimination on the basis of religion, they do not say anything about their ability to discriminate on the basis other protected characteristics like race, gender, or disability. Starting in the 1970s, though, the federal courts began to recognize a broader ‘ministerial exception,’ grounded in the Establishment Clause and/or the Free Exercise Clause of the First Amendment, whereby religious institutions are free to make all employment decisions with regard to their clergy. Today, 12 federal appeals courts and numerous state supreme courts agree that some sort of ministerial exception should exist. But there isn’t consensus as to the exception’s reach.
That’s where this case comes in. The plaintiff, Cheryl Perich, is a parochial school teacher who taught secular subjects to elementary school students, but also had some religious duties, like leading her class in prayer and teaching a religious class. She claims that she was fired after complaining about discriminatory treatment on the basis of her disability, in violation of the ADA. In ruling on her case, the Supreme Court will have to decide whether the ministerial exception should exist at all, and if so, whether and how it covers employees who perform a mix of secular and religious functions. While it is very likely that the Court will recognize the ministerial exception, the question of whether it should cover Ms. Perich is a much closer one. At tomorrow’s arguments, the church is likely to emphasize the religious aspects of Ms. Perich’s position, while Ms. Perich will probably argue that most of her day was spent teaching secular subjects and that her disability retaliation claim won’t implicate questions of religious doctrine.”