Kristen Biel had breast cancer and her Catholic school refused to renew her contract. Miriam Grussgot had a brain tumor and her Jewish school fired her. Both wished to seek recourse in the courts for alleged discrimination. Just a month ago, a Catholic school refused to renew the contract of a teacher who uses a wheelchair and immediately advertised for a person who can walk, and lawyers don’t want to take the case. Over 328,000 teachers work at the roughly 23,000 religiously affiliated schools in the United States. Why don’t teachers at religious schools have access to the courts for employment discrimination cases?
In 2020, the Supreme Court broadened the ministerial exception, a little-known loophole allowing religious institutions to discriminate against their employees despite generally applicable federal laws. The exception holds that to freely exercise their religion, religious institutions must be able to hire and fire “ministers” for any or no reason. The exception is overly broad in two ways: it bars all discrimination claims regardless of relevance to religious tenets; and it applies to secular lay employees whose primary job duties are not religious in nature. While the controlling case was decided several years ago, the chilling effects are now in full swing.
How we got here
In 2012, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court applied a four-factor function test to the ministerial exception: religious title, e.g., minister; religious training; whether the employee held herself out to be a minister; and whether job duties included conveying the church’s religious message. In that case, the disabled teacher’s claim was precluded because of her deep religious training, her title, position, and duties.
In 2020, in Our Lady of Guadalupe School v. Morrissey-Berru, a lay teacher whose primary duties were teaching secular classes alleged discrimination. The Court considered a companion case, St. James School v. Biel at the same time. Morrissey-Berru claimed age discrimination and Biel claimed she was fired due to her breast cancer. The Court held the ministerial exception applied to the teachers despite their lack of ministerial title, minimal religious training, and secular duties. Therefore, all discrimination claims were barred before any discussion of the merits. Both Morrissey-Berru and Biel taught primary subjects including math, science, English, spelling, etc. and one also taught religion. Neither had extensive religious training.
Furthermore, the Court took the teeth out of its 2012 function test by suggesting churches are the only entities well-positioned to explain the ministerial function and that no strict formulas should apply. The potential wrongdoer now holds all the cards.
Biel eventually died of her cancer, unemployed. Justices Sotomayor, joined by Justice Ginsburg, began her dissent saying, “Two employers fired their employees allegedly because one had breast cancer and the other was elderly.” The dissent notes that the decision interprets the word “minister” so broadly that “it strips thousands of schoolteachers of their legal protections.” All sorts of employment discrimination cases, including disability, are now routinely dismissed throughout the US from district to circuit courts. When a religious institution wants to terminate employment or fail to renew a contract due to sicknesses like cancer or disabilities like an inability to walk unassisted, the church is free to do so legally. In most settings, religious exemptions from generally applicable laws apply to religious circumstances, i.e., the entity wanting an exception has a reason related to its ability to practice religion or hold a belief. Yet here, the teachers were not fired for actions that interfered with the religious institutions’ ability to practice their religions. Generally, having a disability or becoming old is not inconsistent with church doctrine or tenets.
Why It Matters
Those with disabilities face significant employment discrimination. Only 22 percent of people with disabilities are employed compared to 65 percent of those without. The firing and failing to renew contracts negatively impact not just the ability to earn money and important benefits like health insurance, but also the ability to participate in working life with its social, educational, and cognitive benefits.
As it stands, disabled teachers cannot feel secure in their employment at religious schools. While it is too late for Kristen Biel, the ministerial exception has spun out of control. Ethically speaking, the Americans with Disabilities Act should apply broadly and the ministerial exception narrowly, only to actual ministerial workers terminated for reasons relevant to religious tenets.
What to do
Left without access to the courts, teachers should approach accrediting organizations and challenge them to take a stand. Accreditors are not the government and do not owe any organization religious freedom to discriminate against disabled teachers. Another appropriate redress may be media attention to individual cases.
Free exercise of religion cases generally address permitting otherwise impermissible acts that religion requires (like allowing a religious incarcerated person to have a beard in conflict with a rule prohibiting one). There is no relationship between firing the disabled and the tenets of most religions; there certainly isn’t a religious calling to do so and not doing so would hardly seem to burden a religious institution in a religion-relevant way. For now, freedom of religion allows the religious to fire disabled teachers simply because they are disabled.
Anne Zimmerman, JD, MS is a Lecturer at Columbia University and Editor-in-Chief of Voices in Bioethics