The CFO of Bishop Heelan Catholic Schools in Sioux City claims he was terminated because he is not Catholic.   He recently sued the Diocese, the school, and the Bishop alleging his termination violated the law against discrimination on the basis of religion. Does he have a case?

Courts in the United States have uniformly recognized a “ministerial” exception to the employment discrimination laws. Basically, that means a church can’t be sued for discrimination because of hiring, firing, and other employment decisions involving its ministers.   The First Amendment trumps the employment laws. 

Like many legal doctrines, however, the ministerial exception is simple in theory but more difficult in practice. The case raises two questions: whether the Sioux City Catholic Schools are covered by the ministerial exception; and whether the CFO qualifies as a “minister”.  

The answer to the first question is almost certainly “yes”.   Courts have ruled that Catholic Colleges are ministers of the Church and are entitled to the Church’s protection against government mandates that burden its religious practice.  The same reasoning applies to elementary and high schools.  The Bishop Heelan School System operates under the authority of the Bishop of the Sioux City Diocese.   That a Catholic School is part of the ministry of the Church cannot reasonably be questioned. 

The answer to the second question is more difficult. In 2012, The U.S. Supreme Court ruled that a teacher at a Lutheran School could not sue for disability discrimination because she qualified as a “minister”. (Hosanna Tabor Lutheran Church v. EEOC).   Unfortunately, the Court did not set forth clear criteria by which the lower courts in future cases could judge who and who is not a minister.   The Court adopted a vague, “we’ll know it when we see it” approach.   Some have interpreted Hosanna-Tabor as giving religious institutions wide discretion in identifying who is a minister.  Others claim courts should engage in a fact intensive inquiry in each case to determine whether an employee is a minister.

Certainly one could make the case an accountant is not a minister. But, because the plaintiff is alleging discrimination on the basis of religion, the inquiry should not end there. There is one more constitutional right at stake that should trump any analysis under the ministerial exception. Namely, the right of freedom of association.   Even the EEOC in the Hosanna-Tabor case agreed that church organizations can defend themselves from claims of discrimination by invoking this right.  It seems absurd to claim the Catholic Church cannot favor Catholics over non-Catholics in hiring and firing decisions, whether that employee is clergy, a teacher, or an accountant.   No religious organization should have to defend itself in court because it favors members of its own faith in employment.  The court should quickly dispose of the plaintiff’s religious discrimination claim.