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. 

Just days before the Health and Human Services contraceptive mandate went into effect, a federal district court in Colorado issued a temporary injunction exempting a Denver based company from its application. (See ruling in Newland v. Sebelius here). The controversial HHS rule requires all employer provided health coverage, with limited exceptions for certain religious organizations, to cover FDA approved contraceptive methods (which include sterilization and abortifacient drugs) at no cost to the employee.    Since the publication of the final rule in January, HHS has come under fire for refusing to provide a broader exemption for religious organizations such as hospitals, schools, colleges, and charities.   (See our post on the subject here).  Nearly 60 different religious organzations, including the University of Notre Dame, have sued HHS Secretary Sebelius to block application of the rule to their organizations.

The Colorado ruling is remarkable, however, because the plaintiff is not a religious organization but a private corporation that manufactures heating, air conditioning and ventilation products.     The owners of Hercules Industries are a Catholic family who strives to operate their business consistent with the teachings of the Church. Hercules has a self-insured health plan for its employees that does not cover contraception, abortion, or sterilization.   The HHS mandate would have forced Hercules health plan to cover these items effective August 1, 2012.

The Hercules Inudstries case presents a very important question whether a corporation operating in the secular, commerical world has the right to operate consistent with the religious principles of its owners.  For decades employees have had the right to exercise their religion in the workplace so long as it does not create an undue hardship to the operation of the employer’s business.  Hercules Industries does not have the right to refuse to hire non-Catholics or to force its employees to practice the Catholic Faith.  Should an employer have a similar right to accomodation from a government rule that imposes an obligation contrary the the religious faith of its owners, so long as it does not interfere with the rights of its employees?   

As shown by the recent efforts of several big-city Mayors to ban Chick-Fil-A because of statements made by one of its owners, the issue of an employer’s religious liberty is not limited to contraceptive coverage in health insurance.   In the Hercules case, the government took the position that a private corporation engaging in commerce has no religious rights.   Senior District Judge Kane rejected that position, at least for now.  The temporary injunction means only that the court believes there is a "likelihood of success" on the merits, subject to a final ruling after all the evidence and legal arguments are considered.

Jon Hyman of Ohio Employer’s Law Blog posted an excelleing piece several months ago proposing an Employer’s Bill of Rights to balance the many rights their employees posess.     Perhaps the right of a business owner to practice his or her religion in the workplace could be added to the list.

We have written many times here about an employer’s obligation to reasonably accommodate an employee’s sincerely held religious beliefs, so as not to unlawfully discriminate on the basis of their religion. Indeed, according to EEOC statistics, claims of religious discrimination by employees are increasing at a higher rate than most other forms of discrimination.

Much less discussed, however, is an employer’s right to the free exercise of religion in the face of employment laws that conflict with religious tenets.    There are countless institutions in the U.S., including hospitals, schools, charities, fraternal organizations, and colleges and universities, that are affiliated with a religious organization.   Collectively, these institutions employ hundreds of thousands (if not more) people.  Not all of these employees practice the religion with which their employer is affiliated, and many of them serve people of all backgrounds and faiths.   Thus, there can be tension when the law grants rights to employees that conflict with the rights of their religiously affiliated employers to adhere to religious teachings.   Jesus famously declared that we should “render unto Ceasar what belongs to Caesar, and to God what belongs to God."   But how are these conflicts worked out in light of modern day employment laws?

Just this month, a pair of significant government decisions spotlight the potential conflicts between religious employers and secular laws.    On January 12, the Supreme Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, that a Lutheran School’s decision to terminate a teacher cannot be challenged under the Americans with Disabilities Act (ADA). The Court unanimously ruled the Lutheran School was exempt from the ADA under what is known as the “ministerial exception”.   In essence, a religious institution has a First Amendment right to decide who is or is not suitable to serve its ministerial functions without court interference. 

Just as the Supreme Court’s decision was sinking in, on January 20, the U.S. Department of Health and Human Services issued a final rule mandating that employer provided health insurance cover abortion, sterilization, and contraception, all with no co-pay or other out-of-pocket cost to the employee. The HHS rule contains an exception for religious institutions, but defines that term very narrowly.   The only religiously affiliated employers who can opt out of the mandatory coverage are those primarily employ and serve people of the same faith. As a practical matter, this rule does not accommodate religiously affiliated hospitals, charities, and educational institutions.   Indeed, one commentator complained the exception is so narrow that Jesus himself would not qualify for it.

In a thoughtful piece, law professor David Skeel writes that while the HHS rule flouts the spirit of Hosanna-Tabor, it may very well comply with its letter, if narrowly construed.  In other words, while the Court’s ruling was on the side of greater religious accommodation, it is possible to interpret the opinion as applying only to those religious organizations whose purpose is the “inculcation of religious values”.   Such a construction would apply to churches and some Catholic schools, but would leave out hospitals and other institutions that serve the general public.  Unfortunately, the administration’s decision to draw the religious exemption in the HHS rule as narrowly as possible only invites litigation, and ensures these issues will be battled in the courts for years to come.  Professor Skeel believe the courts are the worst place to resolve these difficult accommodation issues.   He proposes that the better approach is to hash them out legislatively, or even better, allow the affected groups to work out in good faith practical accommodations. Amen.

There is an interesting op-ed in today’s Des Moines Register concerning religious discrimination in the workplace.   The author, Lake Lambert III,  is a professor of Religion at Wartburg College in Waverly.  He contends employees are subject to religious tyranny because Title VII does not give enough protection to employees’ ability to practice their religion at work.   Under existing law, an employer is required to provide a reasonable accommodation of an employee’s religious practice, unless it would result in an undue hardship on the conduct of the employer’s business.  Generally speaking, an accommodation is an undue hardship if it is costly, compromises safety, decreases efficiency, infringes on the rights of other employees, or causes other employees to do more than their share of hazardous or burdensome work.  

Professor Lambert supports a proposed law known as the "Religious Workplace Freedom Act(RWFA)", which would change the existing reasonable accommodation standard.  Under the proposed law, for an accommodation to be considered reasonable, "the accommodation shall remove the conflict between employment requirements and the religious observance or practice of the employee."   The only defense to such an accommodation is if it requires "significant difficulty or expense."  In other words, the burden would be on the employer to alter any employment requirement that conflicts with an employee’s religious practice, unless the employer can prove it would be too financially costly.

Few would disagree that employees should be permitted time off to attend religious services, observe holy days, and the like.  If that is the problem, the proposed changes in the law could be more narrowly tailored to address it.   In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves.  What happens when the practices of different religions conflict?  What about situations where an employer’s legitimate interest in safety or uniformity impacts an employee’s desire to wear religious clothing or articles?  Under existing law, employers have more  flexibility to address these situations in the context of legitimate business needs.  The proposed RWFA tips the balance too far the other way.

While Professor Lambert’s proposal may sound good in theory as a way of promoting religious tolerance, in practice it imposes unreasonable obligations on employers and adds very little to religious liberty. 



Late August means it’s time for the Iowa State Fair, one of the Top 100 Events in North America, home of corn dogs, the butter cow, and over one million visitors.  One of the interesting side-shows at this year’s fair involved the Des Moines Regional Transit Authority (DART), an atheist organization, and a Christian bus driver.  It all started when an organization billing itself as the "Iowa Atheists and Freethinkers" purchased advertising space on the side of buses to coincide with the Fair.  DART’s advertising manager agreed to run the ads, but was later overruled by the Board of Directors, which was concerned about offending bus riders.   Even the Governor weighed in on the controversy.  DART changed its mind and decided to run the ads after the Iowa Civil Liberties Union promised to investigate whether the atheists’ free speech rights had been violated.

Unfortunately for DART, the controversy was far from over.  When the ads were published, one of DART’s Christian bus drivers refused to drive the bus assigned to her because it contained the atheists’ ad, which offended her because of her religious beliefs.   DART promptly suspended the driver, and then gave her three options: 1) returning to her former position with the understanding that a refusal to drive whatever bus was assigned would result in termination; 2) transferring to a para-transit route, where buses do not contain as much advertising; 3) resigning her position.

As of this publication, there is no word on what the driver decided to do.   Regardless, this episode contains a lesson for Iowa employers: be careful when imposing discipline when it involves an employee’s exercise of religion.   Employees have the right to a reasonable accommodation for their sincerely held religious beliefs.  That does not mean an employer is obligated to do whatever the employee demands, but managers should listen to the employee’s concern, and make a genuine inquiry whether there is some reasonable accommodation that will permit the employee to practice her religion while at the same time resulting in minimal disruption of the business.  For more on this subject, see this post from a couple of weeks ago: Update: Religious Discrimination.

Two recent cases out of the U.S. Court of Appeals for the Eighth Circuit (which includes Iowa, Nebraska, Minnesota, Missouri, Arkansas, and North and South Dakota) serve as important reminders that employers should be alert to potential claims of religious discrimination and religion based harassment occurring in their work places:

  • On July 31, the EEOC announced that AT&T, Inc. paid $1.3 million to satisfy a judgment entered in favor of two employees who were terminated after they took time off work to attend an annual conference of Jehovah’s Witnesses.    The judgment was entered after a jury trial in the U.S. District Court for the Eastern District of Arkansas, and was affirmed by the Eighth Circuit Court of Appeals. 
  • On July 29, a panel of Eighth Circuit reversed a trial judge’s ruling granting summary judgment to an employer in a religious harassment case.   The plaintiff in Winspear v. Community Development, Inc., alleged he was subject to a religiously based hostile work environment by his boss’ wife, who also worked for the company as a receptionist.   The Court of Appeals held the trial judge failed to consider whether a hostile work environment was created by the wife’s repeated comments that plaintiff’s deceased brother was suffering in Hell, and that plaintiff needed to find God to avoid the same fate.   

Claims based upon an employee’s religion are not as common as those based upon other protected characteristics, such as sex, race, age, or disability.  Nonetheless, EEOC statistics reflect an increasing number of charges alleging religious discrimination or harassment.  In response to this trend, the EEOC published the following documents to assist employers in evaluating their rights and obligations under Title VII’s prohibition against discrimination on the basis of religion:

Some important takeaways from these documents include:

  • Employers should have a well publicized and consistently applied anti-harassment policy that specifically includes harassment on the basis of religion or religious practice, including a mechanism for making complaints, allowing for investigations, and preventing retaliation;
  • Employers should permit non-disruptive and non-harassing religious expression among employees to the same extent other types of personal expression is allowed;
  • Supervisors should be permitted to engage in religious expression, but they should avoid expressing themselves in a manner that a subordinate could perceive as coercive, even if not intended that way;
  • Polices and practices concerning the reasonable accommodation of employee’s religious practices should be developed and communicated to employees.  Such practices might cover scheduling, breaks for prayer, dress, and grooming; 
  • When considering whether an employee’s requested accommodation causes undue hardship, or whether a particular religious expression is disruptive, employers should gauge the actual hardship or disruption that will result, and not speculate about what may occur.   Managers should be flexible in exploring alternatives that will permit the employee’s religious practice while also allowing the employer to operate its business.

Image: Joan of Arc (from Flickr)