The Ministerial Exception and the
Americans with Disabilities Act (ADA):
Employment Discrimination and
Religious Organizations
Cynthia Brougher
Legislative Attorney
March 27, 2012
Congressional Research Service
7-5700
www.crs.gov
R42464
CRS Report for Congress
Pr
epared for Members and Committees of Congress

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The Ministerial Exception and the Americans with Disabilities Act (ADA)

Summary
Congress has enacted a number of federal laws banning discrimination in employment decisions,
including hiring and firing of employees. For example, the Americans with Disabilities Act
(ADA) prohibits discrimination based on disability. Title VII of the Civil Rights Act of 1964
prohibits discrimination in employment if the discrimination is based on race, color, religion,
national origin, or sex. The Age Discrimination in Employment Act prohibits discrimination in
employment based on age. Exceptions in these laws for religious organizations have reflected
long-standing recognition of the autonomy of religious organizations in certain employment
decisions.
While these statutory provisions protect religious organizations in selected contexts, religious
organizations also have constitutional protection, known as the ministerial exception. The
ministerial exception protects the employment relationship between a religious entity and its
ministerial employees. Courts have long held that the First Amendment of the U.S. Constitution
bars the government from interfering with internal governance of religious organizations,
including decisions regarding employment of ministers or ministerial employees. This exception
has generally been framed relatively narrowly to avoid undermining the public policy goals of
nondiscrimination legislation. Thus, only religious institutions may claim the ministerial
exception and may only do so if the employee functions as a minister or ministerial employee.
The boundaries of the exception are not yet settled though. In 2012, the U.S. Supreme Court
recognized the ministerial exception as a necessary outgrowth of its jurisprudence on non-
interference in the internal governance of religious organizations (Hosanna-Tabor Evangelical
Lutheran Church and School v. EEOC). However, the Court did not define the scope of the
exception and declined to identify a standard for determining whether an employee could be
labeled as ministerial.
This report analyzes the history and constitutional bases for the ministerial exception and
examines selected statutory provisions reflecting its protections under the ADA and other
employment laws. The report examines the distinction between the constitutional and statutory
protections for religious organizations and addresses critical questions involved in judicial
consideration of the ministerial exception. It analyzes which employees may qualify as
ministerial, the extent to which courts may defer to religious entities claiming the exception, and
whether the exception may apply to any claim brought against a religious entity.

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The Ministerial Exception and the Americans with Disabilities Act (ADA)

Contents
Introduction...................................................................................................................................... 1
Selected Statutory Exceptions for Employment Discrimination ..................................................... 1
Americans with Disabilities Act (ADA).................................................................................... 2
Title VII of the Civil Rights Act of 1964................................................................................... 2
The Ministerial Exception to Employment Discrimination Laws ................................................... 3
Underlying Constitutional Principles ........................................................................................ 3
Judicial Avoidance of Disputes of Matters of Religious Significance ................................ 3
Judicial Avoidance of Defining Religion and Religious Tenets .......................................... 5
Origins of the Ministerial Exception ......................................................................................... 6
U.S. Supreme Court Recognition of the Ministerial Exception: Hosanna-Tabor
Evangelical Church and School v. EEOC .............................................................................. 8
Distinctions Between Statutory Religious Exemptions and the Constitutional Ministerial
Exception...................................................................................................................................... 9
Effect of Hosanna-Tabor on Future ADA Cases ........................................................................... 11
U.S. Supreme Court Rejection of Primary Duties Test ........................................................... 11
Deference to Religious Institutions to Define Ministers ......................................................... 12
Range of Legal Claims Affected.............................................................................................. 13
Potential Considerations for Congress........................................................................................... 15

Contacts
Author Contact Information........................................................................................................... 15

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The Ministerial Exception and the Americans with Disabilities Act (ADA)

Introduction
A number of federal laws prohibit discrimination in employment decisions, including hiring and
firing of employees. Generally, these laws also include statutory exceptions for the employment
of ministers within religious institutions and organizations. This protection arises most often in
the context of employment legislation, but it has also been recognized in other contexts.1 The
exceptions in these laws for religious organizations reflect a constitutional protection commonly
known as the ministerial exception. This exception has been used to ensure that enforcement of
nondiscrimination legislation does not violate the constitutional rights of religious entities to
exercise freely their religious practices and to avoid government interference in internal matters.
In 2012, the U.S. Supreme Court recognized the ministerial exception as a protection grounded in
the Free Exercise and Establishment Clauses of the First Amendment in Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC.2 However, the Court did not define the scope
of the exception, and a number of questions still remain unanswered in how it may be applied in
future cases.
This report analyzes the constitutional bases of the ministerial exception and examines selected
statutory provisions reflecting its protections under the Americans with Disabilities Act (ADA)3
and other employment laws. The report addresses critical questions involved in the application of
the ministerial exception, including which employees qualify as ministers, the extent to which
courts may defer to religious entities claiming the exception, and whether the exception may
apply to any claim brought against a religious entity, including those under the ADA.
Selected Statutory Exceptions for
Employment Discrimination
A number of federal laws prohibit discrimination in employment, each protecting separate classes
of individuals. Congress has included explicit statutory recognition of the hiring rights of
religious organizations in these laws. Two prominent examples of legislation that include
religious exemptions for prohibitions on discrimination are the ADA and Title VII of the Civil
Rights Act of 1964.4 However, other nondiscrimination statutes, like the Age Discrimination in
Employment Act5 and the Equal Pay Act,6 may also affect religious organizations’ rights under
the First Amendment.7 These exemptions are sometimes referred to as ministerial exceptions, but
they differ from the constitutional ministerial exception as discussed in this report.

1 See 8 U.S.C. §1324(1)(C). Section 1324 generally imposes criminal penalties for inducing the entry and harboring
aliens in the United States. However, an exemption from some penalties is provided for religious organizations to
encourage “an alien who is present in the United States to perform the vocation of a minister or missionary … as a
volunteer who is not compensated as an employee, notwithstanding [certain basic living expenses], provided the
minister or missionary has been a member of the denomination for at least one year.” Id.
2 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S.Ct. 694, 703 (2012).
3 42 U.S.C. §§12101 et seq.
4 42 U.S.C. §§2000e et seq.
5 29 U.S.C. §§621 et seq.
6 29 U.S.C. §206(d).
7 See EEOC Compliance Manual, Section 12, Directives Transmittal No. 915.003 (July 22, 2008).
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The Ministerial Exception and the Americans with Disabilities Act (ADA)

Americans with Disabilities Act (ADA)
The ADA provides broad nondiscrimination protection in a variety of contexts, including
employment, public services, public accommodations and services operated by private entities,
transportation, and telecommunications for individuals with disabilities.8 It bars discrimination
against qualified individuals because of the individual’s disability in a range of employment
decisions, including application procedures, hiring, promotion, discharge, compensation, and
other terms and conditions of employment.9
The ADA includes exemptions for religious organizations. Accordingly, the ADA’s prohibition on
nondiscrimination based on disability does not bar “a religious corporation, association,
educational institution, or society from giving preference in employment to individuals of a
particular religion to perform work connected with the carrying on by such corporation,
association, educational institution, or society of its activities.”10 Furthermore, the ADA permits
religious organizations to “require that all applicants and employees conform to the religious
tenets of such organization.”11
Title VII of the Civil Rights Act of 1964
Title VII prohibits discrimination in employment on the basis of race, color, religion, national
origin, or sex.12 It is the most well-known statutory protection for religious discrimination and
often is used as a model for other nondiscrimination legislation. Title VII generally prohibits
employers from treating employees of one religion differently from the way they treat employees
of another religion.13 However, Title VII includes several exceptions that allow certain employers
to consider religion in employment decisions, such as hiring, termination, etc.14
Specifically, Title VII’s prohibition against religious discrimination does not apply to “a religious
corporation, association, educational institution, or society with respect to the employment [i.e.,
hiring and retention] of individuals of a particular religion to perform work connected with the
carrying on by such corporation, association, educational institution, or society of its activities.”15

8 42 U.S.C. §§12101 et seq. For a complete legal analysis of the ADA, see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues.
9 42 U.S.C. §12112(a).
10 42 U.S.C.§12113(d)(1).
11 42 U.S.C.§12113(d)(2).
12 42 U.S.C. §2000e et seq. For a comprehensive legal analysis of religion issues under Title VII, see CRS Report
RS22745, Religion and the Workplace: Legal Analysis of Title VII of the Civil Rights Act of 1964 as It Applies to
Religion and Religious Organizations.
13 42 U.S.C. §§2000e-2, 2000e-3.
14 Religious organizations receiving public funds under grant programs are generally subject to so-called charitable
choice provisions, which recognize First Amendment protections to maintain religious identity and practice. When
enacting such provisions, Congress recognized the continuing applicability of Title VII’s religious exemption to such
organization, regardless of the organization’s receipt of public funds. See, e.g., 42 U.S.C. §604a(f). Although selectivity
in employment has been one of the most controversial aspects of charitable choice, there is little case law settling the
issue. In a leading case, a federal district court indicated that selectivity by religious organizations receiving
government assistance may be constitutionally permissible. See Lown v. Salvation Army, 393 F. Supp. 2d 223 (S.D.
N.Y. 2005). For a complete legal analysis of these issues, see CRS Report R41099, Faith-Based Funding: Legal Issues
Associated with Religious Organizations That Receive Public Funds.
15 42 U.S.C. §2000e-1(a). See also LeBoon v. Lancaster Jewish Community Center Association, 503 F.3d 217, 226-27
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A separate, but similar, exemption applies specifically to religious educational institutions,
allowing such institutions “to hire and employ employees of a particular religion if [the
institution] is, in whole or in substantial part, owned, supported, controlled, or managed by a
particular religion or by a particular [organization], or if the curriculum of [the institution] is
directed toward the propagation of a particular religion.”16 Exemptions for religious organizations
in the context of Title VII are not absolute. Once an organization qualifies as an entity eligible for
Title VII exemption, it is permitted to discriminate on the basis of religion in its employment
decisions, but it may not discriminate on any other basis forbidden by Title VII.17
The Ministerial Exception to
Employment Discrimination Laws
Before Congress enacted statutory exemptions for religious organizations’ hiring decisions, the
U.S. Supreme Court recognized that the “freedom to select the clergy” has constitutional
protection under the First Amendment.18 Statutory nondiscrimination provisions, for example,
Title VII’s prohibition on discrimination in employment on the basis of sex, would appear to
interfere with this constitutional freedom though. The so-called “ministerial exception” reconciles
statutory nondiscrimination provisions with constitutional freedom of religion protections by
allowing religious organizations to select clergy without regard to such statutory restrictions. In
2012, the Court explicitly recognized the ministerial exception as a constitutional protection
grounded under both the Establishment Clause and the Free Exercise Clause: “The Establishment
Clause prevents the Government from appointing ministers, and the Free Exercise Clause
prevents it from interfering with the freedom of religious groups to select their own [ministers].”19
Underlying Constitutional Principles
Judicial Avoidance of Disputes of Matters of Religious Significance
The Supreme Court’s justification of the ministerial exception relies upon its historical
understanding that it must avoid intervening in the internal matters of church operation. The
Court has long recognized that churches and other religious institutions have a right under the
First Amendment to address their internal matters independently and without interference from
government institutions.20 Furthermore, such action by courts would entangle the legal system in
an inquiry of religious authority and doctrine, suggesting the type of probing interference
contemplated by the entanglement prong of the Lemon test.21 Accordingly, the Court has barred

(...continued)
(3rd Cir. 2007) (discussing factors courts have considered relevant to deciding whether an organization qualifies as a
religious organization under Title VII).
16 42 U.S.C. §2000e-2(e)(2).
17 Employment decisions covered by Title VII include hiring, discharge, compensation, and other terms, conditions, or
privileges of employment. See 42 U.S.C. §2000e-2(a)(1).
18 Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952).
19 Hosanna-Tabor, 132 S.Ct. at 703.
20 See, e.g., Watson v. Jones, 80 U.S. 679 (1872).
21 The tripartite Lemon test has traditionally been used by the Court to determine whether a governmental action
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interference in religious practices through decisions prohibiting the government from deciding
disputes concerning religious authority or policies.22
In 1872, the Court recognized that matters of religious doctrine should be determined within the
authority of the particular church and should be separate from any secular legal interpretation:
The law knows no heresy, and is committed to the support of no dogma, the establishment of
no sect. … All who united themselves to such a body [the general church] do so with an
implied consent to [its] government, and are bound to submit to it. But it would be a vain
consent and would lead to total subversion of such religious bodies, if any one aggrieved by
one of their decisions could appeal to the secular courts and have them [sic] reversed. It is of
the essence of these religious unions, and of their right to establish tribunals for the decision
of questions arising among themselves, that those decisions should be binding in all cases of
ecclesiastical cognizance, subject only to such appeals as the organism itself provides for.23
Thus, the Court established the principle that determinations of church doctrine and practice were
to be free of government control well before it had even developed other aspects of its First
Amendment jurisprudence.
In 1952, noting its historic recognition of a prohibition on government interference in matters of
religion, the Court reiterated its earlier understanding of “a spirit of freedom for religious
organizations, an independence from secular control or manipulation—in short, power to decide
for themselves, free from state interference, matters of church government as well as those of
faith and doctrine.”24 The Court accordingly granted federal constitutional protection for the
independent choice of churches for self-governance “as a part of the free exercise of religion
against state interference” when it held that a legislature was constitutionally barred from
determining the proper religious authority of the Russian Orthodox Church.25
On a number of occasions, the Court has reiterated the First Amendment limitations on the
government’s authority to decide matters of church internal disputes and practices. Just as it
invalidated the legislature from doing so, it has also limited courts from overstepping their
constitutional authority in making civil determinations of the propriety of church actions.26 The
Court has held that “because of the religious nature of [disputes related to control of church
property, doctrine, and practice], civil courts should decide them according to the principles that

(...continued)
comports with the Establishment Clause. It requires that a challenged law (1) have a secular purpose; (2) have a neutral
primary effect; and (3) not foster excessive entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13
(1971).
22 See, e.g., Kedroff, 344 U.S. 94; Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).
23 Watson, 80 U.S. at 729, quoted in Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 446
(1969). See also Gonzalez v. Archbishop, 280 U.S. 1 (1929) (“In the absence of fraud, collusion, or arbitrariness, the
decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in
litigation before the secular courts as conclusive, because the parties in interest made them so by contract or
otherwise.”).
24 Kedroff, 344 U.S. at 116.
25 Id.
26 See, e.g., Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960) (courts may not transfer control of church from
general body of the Russian Orthodox Church).
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do not interfere with the free exercise of religion in accordance with church polity and
doctrine.”27
Recognizing that the authors of the First Amendment understood that “establishment of a religion
connoted sponsorship, financial support, and active involvement of the sovereign in religious
activity,” the Court has interpreted the Establishment Clause to prohibit laws from fostering an
“excessive entanglement” between government and religion.28 The Court has explained the bar on
entanglement as an inquiry of whether the disputed government action would “establish or
interfere with religious beliefs and practices or have the effect of doing so” or would create “the
kind of involvement that would tip the balance toward government control of churches or
governmental restraint on religious practice.”29
Courts have generally addressed matters involving religious doctrine quite carefully. Litigation of
employment discrimination claims in which religious organizations assert their freedom to hire
clergy according to religious doctrine almost inevitably raises concerns that a legal decision on
the merits of the case may lead to judicial interference with church decisions.
Judicial Avoidance of Defining Religion and Religious Tenets
In addition to avoiding making determinations on the validity of internal church policies and
practices, the Court has refused to define religious practices or what may constitute religion,
holding that courts may not judge the truth or falsity of religious beliefs.30 It has explained that
the First Amendment ensures the freedom to believe, even if those beliefs cannot be proven.31
While courts must avoid determining the validity of religious beliefs, they must at times identify
whether an individual’s beliefs would qualify as religious for certain purposes, that is, religious
exemptions for statutory requirements. To do so, the Court has stated a test for whether a belief
qualifies as religious: “a sincere and meaningful belief which occupies in the life of its possessor
a place parallel to that filled by the God of those admittedly qualifying for the exemption....”32 In
other words, the court will look at whether an individual’s beliefs “are sincerely held and whether
they are, in his own scheme of things, religious.”33 As a result, courts generally examine whether
an individual applies a particular belief consistently in his or her own practices.34
The beliefs of an individual seeking protection under the First Amendment are not required to
conform with the beliefs of other members of his or her religious group.35 Furthermore, the

27 Jones v. Wolf, 443 U.S. 595, 616 (1979). See also Serbian Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976);
Presbyterian Church, 393 U.S. 440.
28 Walz v. Tax Commission of New York, 397 U.S. 664, 668, 674 (1970).
29 Id. at 669-70.
30 United States v. Ballard, 322 U.S. 78 (1944).
31 Id. at 86-87.
32 United States v. Seeger, 380 U.S. 163, 176 (1965).
33 Id. at 185. See also Welsh v. United States, 398 U.S. 333 (1970).
34 See id. For example, when deciding whether an individual may claim a religious objection to photo identification
requirements due to a religious belief that photographs are prohibited by biblical teachings, courts have considered
whether the individual displays photographs, videos, or artwork at home. See, e.g., Quaring v. Peterson, 728 F.2d 1121
(8th Cir. 1984).
35 See Thomas v. Review Board, 450 U.S. 707 (1981) (“The guarantee of free exercise is not limited to beliefs which
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individual is not even required to be a member of a religious group at all.36 The Court has been
deferential to the individual’s claim that a belief “is an essential part of a religious faith.”37 It has
recognized that beliefs are a matter of personal decision, which may vary greatly among different
individuals or groups, but it has not allowed total deference to the individual’s claim, however.38
Though the Court gives significant weight to an individual’s characterization of his or her beliefs,
that characterization is not dispositive in the analysis. The Court has explained that an
individual’s understanding of what might qualify as a religious view may not be reliable and
courts may assess the nature of the belief independent of the individual’s characterization.39
Attempts to define religion for certain statutory purposes have reflected courts’ aversion to state
explicitly the parameters of religious belief or practice. Often times, statutory definitions related
to religion use the word to define itself. For instance, under Title VII, religion is defined to
include “all aspects of religious observance and practice, as well as belief....”40 Religious
practices and observances are then defined “to include moral or ethical beliefs as to what is right
and wrong which are sincerely held with the strength of traditional religious views.”41 Under the
tax code, individuals may claim an exemption based on religion if they can demonstrate
themselves to be “a member of a recognized religious sect or division thereof and [ ] an adherent
of established tenets or teachings of such sect or division by reason of which he is conscientiously
opposed” to benefits that would otherwise be received.42 These definitions do not provide
absolute clarity on what qualifies as “religion” or “religious.”
Origins of the Ministerial Exception
In a 1972 case recognizing a constitutional ministerial exception to employment discrimination
laws, the U.S. Court of Appeals for the Fifth Circuit held the employment relationship between a
church and its minister was beyond the reach of governmental regulation.43 In McClure v.
Salvation Army, a woman who had been commissioned as a minister in the Salvation Army
alleged that the organization discriminated against her based on her sex. The court recognized that
the organization’s action was constitutionally protected under the ministerial exception.44 It
explained:

(...continued)
are shared by all the members of a religious sect.”).
36 Id.
37 Seeger, 380 U.S. at 184.
38 Id.
39 See Welsh, 398 U.S. at 341 (“[V]ery few registrants are fully aware of the broad scope of the word ‘religious’ as used
in [the statute], and accordingly a registrant’s statement that his beliefs are nonreligious is a highly unreliable guide for
those charged with administering the exemption.”).
40 42 U.S.C. §2000e(j).
41 29 C.F.R. §1605.1.
42 26 U.S.C. §1402(g)(1).
43 McClure v. Salvation Army, 460 F.2d 553 (1972).
44 The court noted that the employer could not avoid liability under Title VII’s religious exemption for discrimination
in employment. Title VII would protect the employer only against claims of religious discrimination but did not permit
the religious organization to show preference on the basis of sex or other factors. Id. at 558. Title VII’s exemption and
the distinctions between the constitutional exception and statutory exemption are discussed later in this report.
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The relationship between an organized church and its ministers is its lifeblood. The minister
is the chief instrument by which the church seeks to fulfill its purpose. Matters touching this
relationship must necessarily be recognized as of prime ecclesiastical concern. Just as the
initial function of selecting a minister is a matter of church administration and government,
so are the functions which accompany such a selection.45
If the government regulated the relationship between a church and its minister, it would be forced
to review practices and decisions of a religious organization and unlawfully “intrude upon matters
of church administration and government.”46 To avoid the risk of such unconstitutional
interference, the court recognized a ministerial exception to insulate decisions regarding those
employment relationships from governmental review.
Each of the federal circuit courts to consider the ministerial exception recognized its application
to some extent, but the courts have differed on the scope of its application.47 Federal courts are
generally in agreement that the ministerial exception bars lawsuits by clergy and religious
leaders—regardless of the particular religious sect or denomination to which they minister—
seeking redress for employment discrimination by their religious organization.48 The circuits
differ, however, in how to apply the ministerial exception to other employees who may serve
religious functions in the organization.
Until 2012, when the Supreme Court considered the issue, the most commonly applied test
applied by circuit courts in ministerial exception cases was the primary duties test (sometimes
called the primary functions test).49 Under this test, ministerial employees are not identified by
their job titles or ordination status, but rather by the function of their position. To apply the
exception, a court must “determine whether a position is important to the spiritual and pastoral
mission of the church.”50 Courts applying the primary duties test have adopted the following
standard 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.51

45 Id. at 558-59.
46 Id. at 560.
47 See, e.g., Natal v. Christian & Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989); Rweyemamu v. Cote, 520 F.3d
198 (2nd Cir. 2008); Petruska v. Gannon Univ., 462 F.3d 294, 303-04 (3rd Cir. 2006); EEOC v. Roman Catholic
Diocese of Raleigh, 213 F.3d 795 (4th Cir. 2000) (hereinafter Roman Catholic Diocese); Combs v. Central Texas
Annual Conf. of the United Methodist Church, 173 F.3d 343 (5th Cir. 1999); Hollins v. Methodist Healthcare, 474 F.3d
223, 226 (6th Cir. 2007); Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003); Scharon v. St.
Luke’s Episcopal Presbyterian Hosp., 929 F.2d 360 (8th Cir. 1991); Elvig v. Calvin Presbyterian Church, 375 F.3d 951
(9th Cir. 2004); Bryce v. Episcopal Church, 289 F.3d 648 (10th Cir. 2002); Gellington v. Christian Methodist Episcopal
Church, 203 F.3d 1299 (11th Cir. 2000); EEOC v. Catholic Univ. Of America, 83 F.3d 455 (D.C. Cir. 1996)
(hereinafter Catholic Univ. of America).
48 See Hosanna-Tabor, 132 S.Ct. at 705-06.
49 See Petruska, 462 F.3d at 307; Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164, 1168-69
(4th Cir. 1985); Hollins, 474 F.3d at 226; Catholic Univ. of America, 83 F.3d at 463.
50 Rayburn, 772 F.2d at 1169.
51 See id. (internal quotations and citations omitted). See also Petruska, 462 F.3d at 307, quoting Rayburn, 772 F.2d
1164; Hollins, 474 F.3d at 226, quoting Rayburn, 772 F.2d 1164.
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Several courts agreed that the ministerial exception may apply with regard to any employees who
“perform particular spiritual functions.”52 Some courts looked at other factors, in addition to the
employee’s primary functions, such as the nature of the claim asserted.53 Other courts decided
ministerial exception cases on a case-by-case basis without applying a particular standard.54
U.S. Supreme Court Recognition of the Ministerial Exception:
Hosanna-Tabor Evangelical Church and School v. EEOC
In 2012, the Supreme Court issued its decision in Hosanna-Tabor Evangelical Church and School
v. EEOC,55 a case which gave the Court an opportunity to recognize and clarify the application of
the ministerial exception. In this case, a teacher with both religious and secular duties at a
religiously affiliated school sought protection under the ADA after being terminated following her
disability leave. The teacher claimed that her termination was improperly based on her disability
and barred by the ADA. The school claimed that its decision was based on internal religious
policies regarding its spiritual leaders, which included some teachers. The case required the Court
to determine whether a teacher at a religious school qualified as a minister for purposes of the
ministerial exception.
In Hosanna-Tabor, Cheryl Perich, a “called” teacher at the school, had taken a disability leave of
absence, but attempted to return to her position later in the school year. The school informed
Perich that her position had been filled by a lay teacher for the remainder of the school year and
offered her “a ‘peaceful release’ from her call, whereby the congregation would pay a portion of
her health insurance premiums in exchange for her resignation as a called teacher.”56 When Perich
refused to resign, she was informed that she would likely be fired, and in response she notified
the school that she intended to file a claim under the ADA. Hosanna-Tabor rescinded Perich’s
“call” and terminated her teaching position, citing “insubordination and disruptive behavior” and
her threat of legal action against the institution.57
The Court’s decision noted the significance of the specific position held by the teacher. Hosanna-
Tabor Evangelical Lutheran Church and School hires two types of teachers: called teachers and
lay teachers.58 Called teachers are deemed to have been called by God to teach and must meet
certain qualifications, which include post-secondary theological study, endorsement by local
church authority, and completion of an oral examination. Upon meeting these qualifications,
called teachers receive the title of “Minister of Religion, Commissioned” and serve an open-
ended term at the school.59 Lay teachers are not required to meet such qualifications and may not

52 See Petruska, 462 F.3d at 307; Catholic Univ. of America, 83 F.3d at 463.
53 See Rweyemamu, 520 F.3d at 208 (“While we agree that courts should consider the ‘function’ of an employee, rather
than his title or the fact of his ordination, we still find this approach too rigid as it fails to consider the nature of the
dispute.” (internal citations omitted)).
54 See, e.g., Bryce, 289 F.3d 648; Gellington, 203 F.3d 1299.
55 132 S.Ct. 694.
56 Id. at 700.
57 Id.
58 Id. at 699.
59 Id.
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be trained by the church or even share the same affiliation. Lay teachers serve under one-year
renewable contracts.60
The Court held that Perich qualified as a minister for purposes of the ministerial exception and
therefore could not enforce the protections that would be available to other employees under the
ADA. Notably, the Court’s opinion in Hosanna-Tabor was unanimous, a rare occurrence for the
current Court in First Amendment cases. However, agreement among the Justices is not
particularly surprising given the narrow scope of the Court’s opinion, which only recognized the
widely accepted constitutional exception. It agreed with the circuit courts that the First
Amendment provides protection for a religious organization’s decisions regarding employment of
its ministers.61 It also agreed “that the ministerial exception is not limited to the head of a
religious congregation.”62 However, the Court stopped short of defining what a minister is for
purposes of the exception—the more contentious issue associated with the ministerial
exception—stating its “[reluctance] … to adopt a rigid formula for deciding when an employee
qualifies as a minister.”63
Instead, the Court treated the case as one of first impression limited only to the challenge in
question, alluding that later legal challenges would allow it to consider the parameters of the
exception.64 The Court explained that Hosanna-Tabor designated the employee as a minister,
which required a number of religiously significant qualifications to be met. The employee
regarded herself as a minister based on her position and accepted privileges available only to
ministerial employees.65 Furthermore, the duties of the position “reflected a role in conveying the
Church’s message and carrying out its mission” and indicated that the employee “performed an
important role in transmitting the Lutheran faith to the next generation.”66 Accordingly, the Court
held that the employee would qualify as a ministerial employee and Hosanna-Tabor’s decision
was not subject to the ADA.
Distinctions Between Statutory Religious
Exemptions and the Constitutional Ministerial
Exception
The statutory exemptions for religious organizations provided by Congress differ from the
constitutional ministerial exception, though both are rooted in the same principles of non-
interference in the internal decisions of church authority and operations. The constitutional
exception protects religious organizations from liability for decisions regarding only ministerial
employees, but may be applied to decisions made on any basis. The statutory exemptions

60 Id. at 699-700.
61 Id. at 705-06.
62 Id. at 707.
63 Id.
64 See id.
65 Id. at 707-08.
66 Id. at 708.
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generally exempt religious employers from liability for decisions regarding other employees, but
are limited to decisions made on the basis of religion.
To invoke the constitutional ministerial exception, an employer must be a religious organization
and the employee must be a minister or ministerial employee. However, the religious employer
does not need a religious basis for its decision. Rather, courts have indicated that the inquiry
should focus on the action itself, rather than the motives:
The exception precludes any inquiry whatsoever into the reasons behind a church’s
ministerial employment decision. The church need not, for example, proffer any religious
justification for its decision, for the Free Exercise Clause “protects the act of a decision
rather than a motivation behind it.”67
Under the constitutional exception, courts have upheld the termination of a college chaplain who
claimed her termination was a result of gender discrimination;68 a hospital chaplain who claimed
her termination was a result of discrimination based on a disability;69 and a priest who claimed his
termination resulted from race discrimination.70 Various circuit courts determined in each of these
examples that the employee qualified as a ministerial employee and that the religious employer’s
decision was accordingly beyond the review of the court.
Congress has extended the recognition of noninterference in employment decisions through
statutory exemptions, but has limited the exemptions to avoid undermining the purpose of the
legislation. Statutory exemptions apply only to religious employers making decisions based on
religion. One federal court has explained that the statutory exemption is significantly distinct
from the constitutional protections to such religious organizations because the “statutory
exemption applies to one particular reason for employment decision—that based on religious
preference.”71 A number of federal circuit courts have noted that the statutory exemption allows
religious organizations to make employment decisions based on religious preferences, but does
not permit those decisions to be based on other preferences, like race, sex, or national origin.72
The statutory exemptions also differ from the constitutional exception because the statutory
exceptions exempt employers from liability for decisions regarding any employee, rather than
being limited to ministers and ministerial employees. For example, the religious exemption under
Title VII has been held to allow a religious organization to terminate the employment of an
employee with no religious duties.73 In 1987, the Supreme Court upheld the Title VII exemption
when a religious employer discharged a building engineer because the employee failed to qualify
for membership in the church that operated the facility for which he worked.74 The Court
explained that the exemption was neutral and its purpose to limit governmental interference in
religious matters was permissible.75

67 Roman Catholic Diocese, 213 F.3d at 802 (quoting Rayburn, 772 F.2d at 1169).
68 Petruska, 462 F.3d 294.
69 Hollins, 474 F.3d 223.
70 Rweyemamu, 520 F.3d 198.
71 Rayburn, 772 F.2d at 1166-67.
72 See, e.g., id.; EEOC v. Pacific Press Publishing Association, 676 F.2d 1272, 1276-77 (9th Cir. 1982).
73 See Corp. of the Presiding Bishop v. Amos, 483 U.S. 327 (1987).
74 Id.
75 Id. at 339.
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Effect of Hosanna-Tabor on Future ADA Cases
In light of the split among the circuit courts over the standard for determining the scope of the
ministerial exception, it seemed likely in Hosanna-Tabor that the U.S. Supreme Court would
clarify the analysis of how courts should define minister in future employment discrimination
lawsuits involving religious organizations. Often, the Court accepts cases for review because a
different standard is applied across the various circuits, which, if left unreviewed, means that the
application of law is determined by the geography of the court in which the claim is filed rather
than by a uniform national standard. The Court did not resolve the split among the circuits,
however. Instead, it only announced its recognition of the ministerial exception as a constitutional
protection for religious entities and explained that it could be applied to more than just the
nominal head of the congregation. Many questions still remain regarding the scope of the
ministerial exception: Who qualifies as a ministerial employee? Which legal claims might the
ministerial exception apply to? What options does Congress have to affect the outcome of such
cases? Although the Court did not provide the definitive clarification of the ministerial exception
that many were expecting, its decision nonetheless indicates its preferred direction of the
constitutional analysis for future cases.
U.S. Supreme Court Rejection of Primary Duties Test
In Hosanna-Tabor, as discussed earlier, the Court declined to announce a uniform standard for
applying the ministerial exception, noting its reluctance “to adopt a rigid formula for deciding
when an employee qualifies as a minister,” and decided only the facts of the case before it.76 The
Court relied upon four general considerations in its decision: (1) the formal title given to the
employee by the religious institution; (2) the substantive actions reflected by the title (i.e., the
qualifications required to be granted such a title); (3) the employee’s understanding and use of the
title; and (4) the important religious functions performed by employees holding the title.77
Rejecting the primary duties test, the Court explained that the factors relied upon by the U.S.
Court of Appeals for the Sixth Circuit may be relevant to the applicability of the ministerial
exception, but they should not be treated as dispositive. For example, the Court disagreed with the
Sixth Circuit that the title of commissioned minister was irrelevant. Rather, the Court stated that
“although such a title, by itself, does not automatically ensure coverage, [it] is surely relevant, as
is the fact that significant religious training and a recognized religious mission underlie the
description of the employee’s position.”78 Likewise, according to the Court, the comparison of
duties between similar positions and the proportion of religious duties versus secular duties may
be relevant, but are not conclusive in the determination of ministerial employees:
[T]hough relevant, it cannot be dispositive that others not formally recognized as ministers
by the church perform the same functions—particularly when, as here, they did so only
because commissioned ministers were unavailable. ...

76 Hosanna-Tabor, 132 S.Ct. at 707.
77 Id. at 707-08.
78 Id.
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The amount of time an employee spends on particular activities is relevant in assessing that
employee’s status, but that factor cannot be considered in isolation, without regard to the
nature of the religious functions performed and the other considerations discussed above.79
The Court’s decision not to announce a formal standard for determining ministerial employees
means that future decisions in lower courts may still be decided based on different standards.
However, the Court’s rejection of the application of the primary duties test provides a strong
indication that at least courts in judicial circuits in which the test had prevailed will now be
guided by factors considered significant to the Court in Hosanna-Tabor.
Deference to Religious Institutions to Define Ministers
The Court’s decision indicated a significant amount of deference to religious authorities when
identifying ministerial employees, relying on the school’s understanding of its relationship with
its called teachers. The Court noted that “although teachers at the school generally performed the
same duties regardless of whether they were lay or called, lay teachers were hired only when
called teachers were unavailable.”80 Citing a long history of avoidance of determining matters of
religion, the Court relied on historical precedent “[confirming] that it is impermissible for the
government to contradict a church’s determination of who can act as its ministers.”81
The Court also deferred to the school’s reason for termination, explaining that the exception
applies regardless of whether the reason for termination is based on religion.82 During the lawsuit,
Hosanna-Tabor maintained that “Perich was a minister, and she had been fired for a religious
reason—namely, that her threat to sue the Church violated the Synod’s belief that Christians
should resolve their disputes internally.”83 The Court emphasized that the purpose of the
ministerial exception is to ensure that employment decisions of ministers and ministerial
employees remains within the sole authority of the religious institution.84 Accordingly, the Court’s
opinion suggests that religious employers may make decisions regarding employment of
ministers or ministerial employees for any reason it deems necessary to adherence to its beliefs,
regardless of whether the stated reason is pretextual.85
Although the Court’s decision was unanimous, Justice Thomas’s concurring opinion, joined by
Justice Alito, provides further support of the Court’s deference to religious institutions when
defining ministerial employees. Justice Thomas stated that the institution’s “right to choose its
ministers would be hollow … if secular courts could second-guess the organization’s sincere
determination that a given employee is a ‘minister’ under the organization’s theological tenets.”86
The opinion also warned against the adoption of a strict definition in the future. If courts attempt
to create a definitive standard for what positions qualify as ministerial, some religious groups,
particularly those “whose beliefs, practices and membership are outside of the ‘Mainstream’ or

79 Id. at 708-09.
80 Id. at 700.
81 Id. at 704.
82 Id. at 709.
83 Id. at 701.
84 Id. at 709.
85 Id.
86 Id. at 710 (Thomas, J., concurring).
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unpalatable to some,” would be disadvantaged because traditional definitions may not be easily
applied to them.87 A definitive standard may raise constitutional concerns if a religious group
feels pressed “to conform its beliefs and practices regarding ‘ministers’ to the prevailing secular
understanding.”88
The Court’s opinions reflect the long-standing aversion to interpreting what religious tenets
require. Just as the Court has recognized that it may not judge the veracity of beliefs or what
constitutes religion, it has now indicated that it may be similarly improper for courts to decide
who is a minister within a particular religion. It seems possible that, even with further litigation of
the scope of the ministerial exception, the Court will defer to a religious institution’s
understanding of which employees function as ministers. Such deference would allow courts to
avoid interpreting the religious doctrine of the institution and defining what constitutes spiritual
leadership within the institution.
Range of Legal Claims Affected
Although it reflects long-standing and widely accepted principles of noninterference in the
internal governance of religious institutions, the ministerial exception nonetheless raises concerns
regarding the degree to which such institutions may operate without legal recourse to those with
whom they may interact.89 In other words, if courts are prohibited from reviewing a church’s
decisions regarding its employees to avoid unconstitutional interference with religious operations,
might they also be prohibited from hearing other challenges involving the church’s decisions?
The Court limited its decision in Hosanna-Tabor, holding only that the ministerial exception bars
employment discrimination suits brought on behalf of a minister challenging a religious
institution’s decisions to terminate his or her employment.90 The Court expressly stated that it was
expressing “no view on whether the exception bars other types of suits, including actions by
employees alleging breach of contract or tortuous conduct by their religious employers,” leaving
such decisions to be determined in later cases.91 Thus, under Hosanna-Tabor, the ministerial
exception applies, at a minimum, to employment discrimination lawsuits alleging improper
termination of a minister by a religious institution, regardless of whether the reason given was
based on religion or another factor. Lower court decisions have indicated some uncertainty in the
applicability of the ministerial exception to other types of cases.
As one federal court has stated, religious organizations “are not—and should not be—above the
law” and “may be held liable for their torts and upon their valid contracts.”92 This court also
emphasized that such organizations remain subject to Title VII in cases that do not involve the
organization’s religious functions.93 Thus, according to some interpretations, even if the

87 Id. at 711.
88 Id.
89 Although the Court has adhered to a doctrine of avoidance of internal church matters, it has not adopted a policy of
non-regulation of religious activity. It has held that religious doctrine cannot exempt an individual from laws of general
applicability. See Employment Division v. Smith, 494 U.S. 872 (1990). The Court has clarified that the government
may regulate “outward physical acts” of religious beliefs, but may not interfere “with an internal church decision that
affects the faith and mission of the church itself.” Hosanna-Tabor, 132 S.Ct. at 707.
90 Id. at 710.
91 Id.
92 Rayburn, 772 F.2d at 1171.
93 Id.
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ministerial exception bars certain claims, other claims in the same case may proceed. For
example, a university chaplain filed claims against her employer after the university decided to
restructure her department and removed her from her position.94 The lawsuit asserted a variety of
claims, including employment discrimination, breach of contract, and state tort claims (e.g.,
negligent supervision and retention). The U.S. Court of Appeals for the Third Circuit held that the
ministerial exception barred any decision on the employment discrimination claims.95 The court
also explained that the First Amendment protected the university’s right to determine its internal
structure and therefore the court could not consider the tort claim of negligent supervision and
retention which resulted from the university’s decision to restructure.96 However, because some of
the chaplain’s claims did not implicate the university’s “freedom to select its ministers,” judicial
resolution of other claims, such as breach of contract, was not barred by the ministerial
exception.97
In another example of a court applying the ministerial exception to cases challenging actions
other than termination, the U.S. Court of Appeals for the Ninth Circuit applied the ministerial
exception to a challenge filed by a seminarian over the sufficiency of the wages he received from
his employing church.98 The court noted that the individual was challenging wages received in his
capacity as a seminarian in which he was assisting with the administration of religious services,
not for employment or duties outside the scope of seminary training. The court determined that
the challenge was of a ministerial nature, and therefore it could not interfere with the church’s
decision.99
Some federal courts have indicated that the nature of the dispute is a critical factor in determining
whether the ministerial exception applies. According to the U.S. Court of Appeals for the Second
Circuit, the ministerial exception is not an absolute bar to legal challenges, indicating that a court
must consider the nature of the dispute before it, in addition to the employee’s position, when
deciding whether or not to apply the exception.100 The U.S. Court of Appeals for the Ninth Circuit
has stated that a court may consider a case if it is limited in a manner that allows for controlled
discovery and avoids “wide-ranging intrusion into sensitive religious matters.”101
Sexual harassment claims have been of particular concern in the debate over the applicability of
the ministerial exception. Like any other claim, whether a court decides the merits of such cases
likely depends on whether the accused institution claims religious justification for its actions. For
example, the U.S. Court of Appeals for the Ninth Circuit permitted an ordained minister to pursue
a sexual harassment claim against her church.102 The court explained that the ministerial
exception applied only to the church’s ministerial employment decisions, and that the sexual
harassment claim was “narrower and thus viable” because it did not implicate a protected

94 Petruska, 462 F.3d 294.
95 Id. at 305-07.
96 Id. at 309.
97 Id. at 310.
98 Alcazar v. Corporation of the Catholic Bishop of Seattle, 627 F.3d 1288 (9th Cir. 2010).
99 Id.
100 Rweyemamu, 520 F.3d at 207-08.
101 Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 950 (9th Cir. 1999). See also Petruska, 462 F.3d at 311
(advising against court involvement in claims that may entangle the courts in religious matters).
102 Elvig, 375 F.3d 951.
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employment decision.103 The court noted that “the Church could invoke First Amendment
protection … if it claimed doctrinal reasons for tolerating or failing to stop the sexual
harassment.”104 Because the church did not defend its actions based on religious doctrine, the
court explained that the issues for judicial resolution were limited to “a restricted, secular
inquiry” and were appropriate for the court to consider.105
Potential Considerations for Congress
The Court’s decision in Hosanna-Tabor did not address the scope of the statutory exception of the
ADA.106 Rather, it was grounded in the constitutional protections afforded to religious
organizations under the First Amendment. In other words, regardless of the explicit statutory
protection for religious organizations like Hosanna-Tabor in the ADA, the school still was able to
exercise its constitutional right to terminate Perich’s employment without affording her the
legislative protections of the ADA. Accordingly, the legislative options for Congress in response
to the Court’s decision in Hosanna-Tabor are extremely limited.
Congress may seek to include a preferred standard of review in its religious exceptions to
nondiscrimination legislation, but such clarification must comport with the requirements of the
constitutional exception. The most probable method for clarification of the proper standard for the
constitutional exception is further litigation, as the Court alluded in its decision.

Author Contact Information

Cynthia Brougher

Legislative Attorney
cbrougher@crs.loc.gov, 7-9121


103 Id. at 953.
104 Id. at 963.
105 Id. See also Black v. Snyder, 471 N.W.2d 715 (Minn. Ct. App. 1991) (court may consider sexual harassment claim
“unrelated to pastoral qualifications or issues of church doctrine”).
106 The ADA’s exception exempts religious entities from its general prohibition on discrimination based on disability,
to allow religious entities to give “preference in employment to individuals of a particular religion” and “require that all
applicants and employees conform to the religious tenets of such organization.” 42 U.S.C. §12113(d).
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