Scott Pilutik




Will Hosanna-Tabor v. EEOC Give Hope to the Headleys?

The “ministerial exception” is finally about to get its long overdue day in court, as the Supreme Court will hear oral arguments on October 5, 2011 in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, out of the 6th Circuit [pdf of decision here]. The case’s outcome promises to have significant impact, as ministerial exception cases have seem to be more and more commonplace, and the various Circuits are split on how to approach them. For our purposes, the outcome could potentially affect three cases involving Scientology litigants, namely actions brought by Claire and Marc Headley (separately), and Laura DeCrecenzo, all who were members of Scientology’s purportedly “elite” Sea Org, which meant that they all worked obscenely long and hard hours, and were treated horrifically. Before I get to why Hosanna-Tabor matters with respect to these Scientology cases, let me back up explain how Hosanna-Tabor came about.

The defendant, Hosanna-Tabor Evangelical Lutheran Church and School, was the employer of 4th grade teacher and plaintiff Cheyrl Perich from Minnesota, who fell ill with a mystery ailment in June 2004, and had to be hospitalized for several months. Six months later doctors finally diagnosed Perich with narcolepsy and advised her that with proper medication she’d be able to return to work in 2-3 months. The principal and the school board, however, became concerned about Perich’s ability to fully function and requested that she agree to a “peaceful release” whereby the school would cover Perich’s medical insurance premiums through December 2005 (and effectively waive disability). Perich rejected the release proposal and attempted to return to work (she had obtained a work release from her doctor), and was instead fired, purportedly due to her “insubordination” at the board meeting where she rejected the school’s proposal, and due to her threat to sue (which, yes, appears to be something of a tautology).

Perich filed a complaint via the EEOC against Hosanna-Tabor for wrongful termination and under the Americans with Disability Act (“ADA”) and retaliation. She ultimately joined in the complaint herself, becoming a co-plaintiff with the EEOC. After both sides filed for summary judgment, the district court found for Hosanna-Tabor, ruling that the ministerial exception precluded the court from inquiring into her claims and accordingly dismissed the claim for lack of subject matter jurisdiction. After moving to reconsider (which motion was denied), Perich and the EEOC appealed to the 11th Circuit.

In all ministerial exception cases the issue ultimately boils down to a consideration of the relationship between the employer religious entity and the employer—basically: Is the employee a “minister”? If the answer is “yes,” the employer is exempt from virtually all labor law provisions. The rationale for the ministerial exception is that the constitution prohibits court inquiry into the hiring and firing decisions of religion, lest the courts become impermissibly entangled in religious affairs. Similarly, to penalize a religious institution based on hiring and firing decisions grounded in religious criteria violates that religious entity’s free exercise rights.

In deciding whether an employee is a “minister” or “ministerial employee,” the courts have taken a myriad of approaches, most under the guise of what’s been called the “primary duties” test. At the most restrictive end of the test spectrum is the 6th Circuit’s approach in Hosanna-Tabor. Perich did teach some religious classes but she primarily administered a secular curriculum—the Court at one point literally counts the hours in a typical day for Perich, noting that more than six of her seven hour day was spent teaching secular subjects.  Moreover, both the majority and concurrence found persuasive the fact that some Hosanna-Tabor teachers were not even Lutheran yet still gave religious instruction—how can non-adherents possibly be ministers? Additionally, it didn’t hurt that Hosanna-Tabor’s personnel manual includes EEOC policy within, and that the Governing Manual for Lutheran Schools apparently contemplates that teachers are protected by labor laws.

At the opposite end of the primary duties spectrum is a highly deferential test that asks whether some of the employee’s duties are religious in nature and whether the employer based its hiring decision on religious criteria. The 5th and 9th Circuits’ adopt this approach, as typified by the Alcazar v. Corporation of the Catholic Archbishop of Seattle case, upon which basis the Headleys’ cases were dismissed. With Alcazar, the question of duties is mostly subsumed by flipping it around and looking not at what the employee does, but the intent of the employer—why the employee was hired. By eschewing objectivity, Alcazar (decided en banc) hands to religious entities a highly valuable get-out-of-labor-law-free card, by including their hiring decisions—which courts cannot question lest they become entangled in religious affairs—as a part of the test. “Yes, we hired that janitor to deliver the Word of God—why should the state have any say in the matter?” Perhaps this is extreme (a janitor likely performs no religious functions much less some), but it’s a helpful example to point out the tautological nature of the “religious criteria” prong.

The ridiculousness of Alcazar was made apparent in the Headleys suits, which were dismissed when the court analyzed their situations as follows:

 She worked for Defendants, which both are institutions within the Church. She also was able to hold the positions she had with Defendants based largely on religious criteria, namely her commitment to 1,000,000,000 years of service to Scientology and the lifestyle constraints that come with being a member of the Sea Org. See id. 2010 WL 917200, (deciding this factor was met where plaintiff was in a job available only to seminarians of the Catholic Church). Finally, as part of her duties, she performed various religious duties and responsibilities, most notably “auditing” and “cramming.”

In other words, Claire Headley was a minister because Scientology said so. The court declined to entertain what Claire or Marc Headley actually did in terms of work while in the Sea Org, 99% of which could have been performed by non-Scientologists without a hitch, because it had already found that “some” of their duties were Scientological in nature.

If the Supreme Court affirms Hosanna-Tabor (or even if it merely concurs with the result and creates a new test based on the facts (perhaps adopting Judge Helen White’s concurrence, which appears to have kept the “primary” part of the primary duties test, but also looked to whether the employee’s hiring relied upon a religious criteria) it may be necessary for the courts to reexamine the Headleys’ cases based on whatever standard the Supreme Court sets forth, and the result could be quite favorable.

If the Supreme Court were to simply affirm without comment (for the sake of argument–this won’t happen), the question in the Headleys’ cases would become how much time they spent performing secular duties and how much time they spent performing religious duties. And even if the court ultimately agreed with Scientology that every minute of a Sea Org member’s waking day is spent performing religious duties as a member of a religious order, the factual inquiry would nevertheless be fascinating… for critics anyway–Scientology would certainly be terrified to have its treatment of Sea Org members subject to the court’s scrutiny.

Beyond the Scientology implications I’ve mentioned, this case has some pretty heavy real world implications as well, as can be inferred from the huge number of amicus briefs already filed (20 in support of Hosanna-Tabor, 8 in support of the EEOC/Perich). Scotusblog entry for Hosanna-Tabor case here. There are tens of thousands of teachers teaching at parochial and sectarian schools who will be directly affected by the how the Supreme Court winds up ruling.; and my guess is that the vast majority of those teachers are under the perhaps mistaken impression that they’re protected by labor law.

Also worth noting is this 2008 Student Note in appearing in the Harvard Law Review arguing for the more deferential “primary duties” standard–though I disagree with the Note’s thesis, it’s an excellent walk through the most prominent case law (as of 2008 at least, unfortunately prior to Alcazar).

Finally, journalist Jonny Jacobson wrote an excellent post covering similar territory as this one but with a different focus. His post prompted mine, so I just wanted to give it a shout-out.

  • AnonLover

    Thanks Tikk, as always – this was extremely helpful!

  • me with a question

    Thanks Tikk.

    I always appreciate your analysis and links.

    Reading through some of the briefs got me wondering about the Daniel Montalvo case.
    Will the secular laws requiring teachers to report truancy and abuse to protect minors take presidence above religious protections?

    • Scott Pilutik

      That’s a great question and one I honestly hadn’t thought much about. I haven’t seen much in the way of documents in the Montalvo case so I’m not in much of a position to render a useful opinion. My limited understanding is that Daniel Montalvo has the functional education of an 8th grader [see Jonny Jacobson on this], although I’m not sure what that literally means–whether he completed the eighth grade or whether that represents a guesstimate of the sum total of educational experience coming in drips and drabs while at Bridge Publications. The complaint suggests that while he attended school, he did so once a week. I don’t believe the complaint noted which school, but it’s notable that the public school system wasn’t named a party, nor was any other school or school district, so we may never know.

      To answer your question in the most general form, though, school attendance laws are neutral laws and not subject to religious exceptions or accommodations. The way around this for religious adherents is to homeschool, but there’s never been any suggestion that Scientology has even attempted to homeschool its underage SO members. And why should they when they’re the only ones bothering to save the planet? Plenty of time for those younger meat bodies to learn in subsequent lifetimes.