Which Employees Are Considered “Ministers” in Employment Law?

  1. Church & Nonprofit
  2. Which Employees Are Considered “Ministers” in Employment Law?
Church & Nonprofit

When most people think about what a “minister” is, a certain picture or church experience may come to mind. However, for purposes of employment law, the term “minister” has a broader definition than just the person who preaches a sermon or presides over a wedding or funeral. For purposes of employment law, employees who are considered “ministers” trigger First Amendment protections for their position that prevent the government from forcing a religious organization or church to retain an unwanted employee.

Employment law today contains numerous “anti-discrimination” provisions that impact religious ministries or churches. Sometimes those provisions collide with the sincerely-held religious beliefs of a religious organization or church. For example, some churches may have sincere religious beliefs against hiring someone of a particular sex. If the organization declines to hire a person for that reason, the organization may open itself up to an employment discrimination lawsuit. Yet if the position is a “ministerial” position, then the anti-discrimination provisions of the law likely do not apply and the organization will not face liability for refusing to hire because of the sex of the applicant. Overall, the “ministerial exception,” as it is known in the law, is intended to keep the government from intruding into the internal affairs of a church or religious organization.

In a 2012 US Supreme Court Case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a teacher who worked for the church’s school attempted to sue the church claiming a violation of the Americans with Disabilities Act (she suffered from narcolepsy). She had been fired by the church for threatening a lawsuit against the church which ran counter to the church’s religious beliefs about resolving disputes among believers.

The Supreme Court rendered a unanimous decision upholding the “ministerial exception.” The Court recognized that this exception was grounded in the First Amendment and that it shields church decisions about their leadership from prohibited government interference. Here, the teacher and church both had accepted her position as a “called minister.” In addition to teaching secular topics in the school, the teacher had also taught religion and had led religious ceremonies. That meant the ministerial exception applied to her position, and the First Amendment prohibited the government from applying the employment anti-discrimination law to her firing.

In the process, the Court affirmed the use of a “totality of circumstances” analysis in determining who counts as a minister for purposes of employment issues. So whether a person is considered a minister depends, in the end, on factors such as that person’s job description and function—and turns on whether the person functions in a significant religious capacity, even where they are not ordained. There have since been numerous cases filed regarding who qualifies as a “minister” and thus triggers the ministerial exception. The U.S. Supreme Court is poised to issue another decision very soon that will provide additional guidance that will be helpful for ministries and churches.

When a church, ministry, or other nonprofit organization in Arizona needs advice pertaining to their staff and activities, Provident Law’s church and nonprofit attorneys are here to help. We recognize how essential these organizations are to society, and we provide broad transactional and general counsel services to keep them running smoothly. Contact us to learn more.


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