Southwest ADA Center

Legal E-Bulletin - October 2011

Supreme Court Considers How the ADA Applies to Religious Employers

This month, the United States Supreme Court considered its first Americans with Disabilities Act (ADA) case since 2005, Hosanna Tabor Lutheran Church and School v. E.E.O.C.  The Supreme Court justices listened to arguments from attorneys on both sides on whether the ADA should apply to a private religious school in an employment dispute with its teacher.

In June 2004, Cheryl Perich, a school teacher at Hosanna Tabor, became ill due to narcolepsy and was unable to return to work at the beginning of the 2004-2005 school year in August. She took disability leave and kept her employers updated on her status. The school was skeptical that she would be able to return within the school year and contracted with a substitute teacher for Perich’s classes through the end of the school year. In February 2005, Perich’s doctor gave her a written release to work without restrictions, and Perich attempted to return to work. Since her position was already filled, the school asked Perich to stay home while it figured out a possible plan of return for her. The school principal told Perich she would likely be fired, and Perich told her she would pursue her legal options if they could not compromise. The school board considered her actions insubordinate and disruptive and that Perich had damaged her relationship with Hosanna-Tabor by threatening legal action. Perich’s lawyer sent a letter to the school stating the school’s actions were discriminatory and seeked an amicable resolution, or else Perich would be forced to sue. The school terminated her.

The ADA prohibits employers from retaliating against their employees for asserting their rights under the ADA. The school terminated Perich in response to her legal threats. However, courts have carved out an exception to civil rights laws like the ADA in recognition of the First Amendment’s guarantee of religious freedom. This exception is called the ministerial exception. Courts do not want to interfere with how a religious organization selects or deals with its ministerial employees. This exception does not just apply to ordained ministers. It can apply to any employee whose primary duties consist of teaching, spreading the faith, church governance, or supervision of religious orders, rituals, or worship. Previously lower courts have applied this exception to church choir directors,1 publicists,2 and teachers who taught primarily religious classes for religious schools.3 One major question then was whether Perich should be considered a ministerial employee.

Hosanna Tabor certainly thinks so. The church/school had two classes of teacher: 1) “lay” or contract teachers and 2) “called” teachers. Perich had to complete classes on various aspects of the Christian faith to be “called”, and she and other called teachers were designated by the school as “commissioned ministers”. She taught a religion class for four days a week along with other classes including math, English, social studies, science, gym, art, and music and led each class in prayer three times a day. However, the lower federal court that had considered this case analyzed her primary duties and found that she spent only 45 minutes in a 7-hour work day on these religious aspects. The rest of the day was spent on secular duties. It found that the primary job duties between “lay teachers” and “called teachers” were the same. The court concluded that Perich was not a ministerial employee and was protected by the ADA.4 It is not clear what type of analysis the Supreme Court will use to determine whether Perich is a ministerial employee and how much deference should they give to the Church in labeling their employees.

The U.S. Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the employment provisions of the ADA had intervened in this case. It argued before the Supreme Court that the anti-retaliation provisions of the ADA should apply equally to a religious employer as it would a secular one. The EEOC argued that it was not attempting to interfere with how a religious chooses its ministers but that it doesn’t want employers to punish their employees for threatening to pursue their legal options or report things to the government. According to the church, Lutheran doctrine believes that Lutherans should not sue the church in civil courts and should handle such disputes within the Church’s internal grievance process. Should the federal government defer to this doctrine out of respect for the First Amendment, which protects the free exercise of religion?

The Supreme Court will consider these issues as it tries to balance the government’s interests in protecting its citizens from discrimination through laws like the ADA with the religious organization’s constitutional right to freely worship. The Supreme Court will issue a decision in several months that should impact the rights of employees who work for a religious organization. This decision would affect not just places of worship like churches or synagogues, but also employees of a religiously-affiliated entities like hospitals, schools, or charities.

1. EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 802-03 (4th Cir. 2000); Starkman v. Evans, 198 F.3d 173, 175-77 (5th Cir. 1999);

2. Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 703-04 (7th Cir. 2003).

3. EEOC v. Sw. Baptist Theological Seminary, 651 F.2d 277, 283 (5th Cir. 1981).

4. EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769 (6th Cir. 2010).


The contents of this e-bulletin were developed by the Southwest ADA Center under a grant from the Department of Education, NIDRR grant number H133A110027.  However, those contents do not necessarily represent the policy of the Department of Education, and you should not assume endorsement by the Federal Government. The information provided is intended solely as guidance and is neither a determination of your legal rights or responsibilities under the ADA, nor binding on any agency with enforcement responsibility under the ADA.