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Churches and church ministries, such as church schools, have been sued by employees on the grounds of discrimination of various types under state and/or federal law.  The ministerial exception is generally a valid and enforceable defense to shield against such allegations.

But who is a minister?  Who qualifies? 

A 'minister" is broadly defined as a person who functions in a significant religious capacity (even if not ordained) with regard to ministerial exception legal cases.


There is no “bright-line” test.  There is no “rigid formula” utilized.  But courts must use a multi-factor, fact-intensive inquiry.  That is, courts are to use a “totality of the circumstances” analysis to determine if a person is deemed a “minister”. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012).

Whether or not a person is considered a minister is, therefore, based primarily on the individual's job description and function.


 Nonexclusive factors (gleaned from various sources) to be considered may include amongst other things:

(1) Are employment hiring decisions regarding the employee position at issue made largely on religious criteria?


(2) Is the employee qualified and authorized to perform the ceremonies of the church?


(3) Is the employee engaged in activities traditionally considered ecclesiastical or religious, including attending to the religious needs of the faithful?  Examples: Teaching a religious course or curriculum as part of teaching duties; leading students in daily prayers and devotions.  Key: Religious-based duties.


(4) Did the employee receive religious training for the job and/or commissioning by the church?


(5) Did the employee receive any benefits / perks commonly associated with ministers such as, for example, tax exempt housing or a housing allowance?


(6) Does the employee’s job title and/or job description: (1) Reflect a ministerial function or role? or (2) Reflect a role in conveying the Church’s message and carrying out its mission? Key: Religious role


(7)  Does the religious organization sincerely (in good faith) believe that the employee is to function as a minister?


(8) Are the job functions inextricably intertwined with the religious organization’s religious doctrine or standards?


(9) How much time did the employee spend in religious activities or functions? Key: Relevant but not to be considered in isolation of other factors.


(10) Does the employee perform a religious function or serve as a messenger or teacher of the faith?


Cases After Hosanna-Tabor

After the U.S. Supreme Court's holding in Hosanna-Tabor case, supra., appellate courts found the following employee positions to be subject to the ministerial exception:

Music Director                          
A Catholic church's music director was terminated in 2007.  He had no religious training.  He had no liturgical responsibilities.  But the church's music director oversaw the planning and coordination of the church's music program.  This promoted participation of the 'liturgical assembly' in singing and promoting the various musicians.  He also ledthe music during Mass.  In short, he is an integral part of Mass.  Therefore, he actively participated in the sacrament of the Eucharist.   Thus, he is a liturgical lay minister under the ministerial exception.  Therefore, he has no claim under federal discrimination law and cannot pursue age and disability discrimination charges.  Philip Cannata v. Catholic Diocese of Austin; St. John Neumann Catholic Church (October 24, 2012, 5th U.S. District Court of Appeals)

Religious School Teacher

In Temple Emanuel of Newton v. Massachusetts Commission Against Discrimination,  ( Supreme Judicial Court of Massachusetts, September 19, 2012), it was held that the "ministerial exception" applied to a part-time teacher at a Jewish religious school.  She was terminated from employment when the Jewish temple reduced the number of teachers by 40%.  She was not a rabbi.  But she taught religious subjects at school.  Therefore, she is prevented from applying Massachusetts' anti-discrimination laws to present an age discrimination claim.

The Kentucky Court of Appeals has held that the ministerial exception applied to two terminated seminary teachers who were deemed “ministers.”   The teachers were not members of the "Disciples of Christ" denominational seminary.  In 2009, the theological seminary, due to financial distress, eliminated tenure.  It also reduced faculty and staff.  In the first case, Kant v. Lexington Theological Seminary (Kentucky Court of Appeals, July 27, 2012), the appellate court dismissed a breach of contract suit brought by a terminated Jewish faculty member  who was terminated. He is a Jewish studies scholar.  The professor’s primary duties involved teaching religious-themed courses at a seminary.   He prepared students for Christian ministry. The employee’s personal views do not cancel his religious function. 

In the second related case, Kirby v. Lexington Theological Seminary, (Kentucky Court of Appeals, July 27, 2012), the terminated employee belonged to the Christian Methodist Episcopal Church.  But he taught only religious courses. The court dismissed the lawsuit.  Held: He was a minister despite his lack of ordination and despite not being a member in the Disciples of Christ denomination. One factor cited among others was the seminary’s commitment to Christian unity, ecumenicalism, denominational diversity and interfaith inclusiveness. Furthermore, faculty are expected to prepare students for Christian ministry in accordance with the Seminary's religious mission. Faculty are also expected to teach Biblical-based curriculum and model the ministerial role for the students.

In Herzog v. St. Peter Lutheran Church (U.S. District Court, Northern District of Illinois, August 1, 2012), the facts were that employee Herzog started as a lay teacher at a Lutheran elementary school.  Years later, she took a course and became a "called teacher." She taught primarily secular subjects.  But she also taught religion classes four days per week. The school terminated her employment. The school cited budgetary reasons. Herzog claimed age, sex and marital status discrimination.  The court held that she was a "minister" under the ministerial exception. Therefore, she could not present such discrimination lawsuit.


 Prior to the recent 2012 U.S. Supreme Court Tabor Evangelical Lutheran Church case, lower courts defined ministerial employees broadly and liberally.  Ministers included not just religious organization leaders, but also anyone responsible for religious doctrine, teaching, and administration. 

In state court and federal courts, a common definition of "minister" in ministerial exception cases was as follows:

"The fact that an [employee] can never be an ordained minister in [the] church is…immaterial. The ministerial exception . . . does not depend upon ordination but upon the function of the position.  As a general rule, if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered clergy [i.e., a minister]." See Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).

Courts in many jurisdictions, however, declined to apply this “primary” test, but instead applied tests that took into account all of the duties of a particular job position, not just the primary ones or whether the employee was chosen for the position based “largely on religious criteria” and performs some religious duties and responsibilities. See Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) and Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999).

The ministerial exception applies to ministers and to “a variety of nonordained employees with duties functionally equivalent to those of ministers.Catholic Charities of Sacramento, Inc. v. Superior Court (2004) 32 Cal.4th 527, 543–544.

Applying these various tests, Courts found the following employee  positions to be subject to the ministerial exception:


Rweyemamu v. Cote, 520 F.3d 198, 200 (2d Cir. 2008) Petruska v. Gannon University, 462 F.3d 294, 304 (3d Cir. 2006);

McClure v. Salvation Army, 460 F.2d 553, 554 (5th Cir. 1972);

Scharon v. St. Luke's Episcopal Presbyterian Hospitals, 929 F.2d 360, 362-63 (8th Cir. 1991) [Chaplain at a religious hospital].

Non-ordained clergy

EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283-85 (5th Cir. 1981) [Faculty (some were not ordained ministers) at a Baptist seminary were selected based on religious factors and had religious duties].

Religion, theology, and canon law scholars and teachers

EEOC v. Catholic Univ. of Am.
, 83 F.3d 455, 457-58 (D.C. Cir. 1996) 
Pastoral counselors

Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 224-25 (6th Cir. 2007)

Ministerial administrators Bell v. Presbyterian Church (U.S.A.), 126 F.3d 328, 329-30 (4th Cir. 1997)

Lay administrators

Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238, 1240,, 1244 (10th Cir. 2010)  [Director of religious formation for a Catholic diocese];

Schleicher v. Salvation Army, 518 F.3d 472, 475-78 (7th Cir. 2008) [“Administrators” of a Salvation Army rehabilitation center led worship and engaged in other religious functions; but they also spent significant time supervising Salvation Army thrift shops].

Organists; Music and Choir leaders

Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1037 (7th Cir. 2006);

EEOC v. Roman Catholic Diocese of Raleigh, N.C. 213 F.3d 795, 801-02 (4th Cir. 2000);

Starkman v. Evans, 198 F.3d 173, 175-77 (5th Cir. 1999) [Choirmaster and director of music at a Methodist church was selected based on religious criteria and had significant religious duties].

Religious school teachers

Henry v. Red Hill Evangelical Lutheran Church of Tustin (2011) 201 Cal. App. 4th 1041

EEOC v. Catholic Univ., 83 F.3d 455, 461, 464 (D.C. Cir. 1996) [Catholic nun denied tenure for a canon-law teaching position at a Catholic University].


Shaliehsabou v. Hebrew Home of Greater Wash., Inc., 363 F.3d 299, 309-10 (4th Cir. 2004) [A "Mashgiach," or kosher standards supervisor, of a predominately Jewish nursing home].

But compare: Altman v. Sterling Caterers, (Florida Southern District Court, July 17, 2012), involving a lawssuit alleging violations of the minimum wage and overtime provisions of the Fair Labor Standards Act (FLSA) brought by a masgiach against his exployer, the catering company.   The  ministerial exception does not apply because the profit catering company provided both kosher and non-kosher food, and is not a religious institution.

Maintenance person with religious duties Alcazar v. Corporation of Catholic Archbishop of Seattle, 627 F.3d 1288, 1292 (9th Cir. 2010) [Seminarian who had not yet been ordained but had entered seminary to become a priest, was assigned to church maintenance, and assisted with mass].

Case in point:

Henry v. Red Hill Evangelical Lutheran Church of Tustin (2011) 201 Cal. App. 4th 1041:

An director and teacher employee of a church preschool did not have a claim for wrongful discharge based on a violation of public policy rooted in title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.).  The employee was terminated for cohabitating with her boyfriend and raising their child in that living arrangement.  She understood that living with her child's father and not being married was contrary to the school and church's expectation of her as a Christian, setting a Christian role model.


She knew that the school was “Bible-based.” Although teachers were not required to be Lutheran—She, Ms. Henry, is Catholic—teachers were required to be practicing Christians “involved in a church-based setting on a regular basis.” The parents of students did not have to be Lutherans, but they too had to be practicing Christians.

Every week, she gave a tour of the preschool to parents of prospective students. During the tour Henry talked to the parents about the “Christian-based, Bible-based values of the school.” She wanted the parents to understand that if they sent their children to the school, they could expect their children to receive a “Christian education” and Bible-based “Christian values.”

Every week the teachers participated in devotions. They read from a “devotional-type book,” took prayer requests from the group, and prayed for each other.

As a teacher, “Henry fulfilled that function by teaching her preschoolers religion, leading them in prayers every day, and leading chapel services. She taught religion and spread the faith.  Therefore, “…the ministerial exception applies in this matter.”


Churches and religious organizations who employ persons who functions in a significant religious capacity (even if not ordained), may fall under the ministerial exception depending on the circumstances.  Such employers should, amongst other things, reflect such religious capacity and duties in their hiring policies, employee handbooks, and job descriptions.  Bylaws ought to describe the organizations religious beliefs, purposes and practices.  Before terminating an employee on religious grounds, legal counsel should be sought because this area of law frequently is complex, developing and fact dependent. "...a man of understanding will attain wise counsel," (Proverbs 1:5).  And "...with the well-advised is wisdom."  (Proverbs 13:10).  "Plans are established by counsel..." (Proverbs 20:18).  

Author: Christian Attorney Matthew B. Tozer


Copyright 2012.  All rights reserved

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