For the very first time, the U.S. Supreme Court has given its blessing to a “ministerial exception” when it comes to basically all statutory employment discrimination claims.

In what has been described as the most important and significant case involving religious liberty to come from the U.S. Supreme Court in 20 years, the Court ruled in a 9-0 decision that the Establishment Clause and the Free Exercise Clause of the First Amendment bar lawsuits brought by ministers against their churches. In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court held that Ms. Cheryl Perich, who was a teacher at a Michigan school that was part of the Lutheran Church-Missouri Synod, could not sue claiming that she was fired for pursuing an employment discrimination claim based upon disability.

While Perich had taught primarily secular subjects at the school, she also taught religion classes and she attended chapel with her class, which the Court found (along with some other factors) sufficient to bring her into the “ministerial exception.”

Chief Justice Roberts acknowledged that Perich’s religious duties only accounted for 45 minutes of each workday, with the remainder of the day spent teaching secular classes, but said “The issue before us . . . is not one that can be resolved with a stopwatch.”

This ruling will have a direct impact on countless religious employers and people employed by religious employers. Unfortunately, the Court gives limited guidance as to how one is to determine who is a “teacher” and who is a “preacher.”

The Court said it was “reluctant to adopt a rigid formula.” Eight of the nine Justices did, however, apparently agree on applying a kind of “multi-factor” analysis to the issue of whether or not an employee falls within the “ministerial exception.”

Under the “multi-factor” analysis approach, it would appear that, if a teacher at a religious school has formal religious training and is charged with religious instruction (even in a limited amount of time), he or she would fall within this “ministerial exception” to employment discrimination laws, along with ministers, priests, rabbis, etc.

In the case of Perich, the school considered her a minister, while calling her a teacher. She had completed religious training, and the church said that she was fired for violating religious doctrine. The religious doctrine she was alleged to have violated? Pursuing litigation in connection with her claim of disability discrimination rather than attempting to resolve the matter internally with the church.

It appears the “ministerial exception” is to be treated, however, more as an available defense, rather than as a jurisdictional bar. In other words, employees who work for religious employers may still file an action alleging employment discrimination; however, the religious employer can move to have the case immediately dismissed on grounds that the employee falls within the “ministerial exception.”

Here’s the tricky part – who gets to decide if the employee falls within the exception? Who gets to apply the multi-factor analysis? Or, in “religious” terms — Is the court to rely upon the “literal word” of the religious employer? Or is the court to “divine” its own answer?

All religious organizations, religious employers, and religious schools should become familiar with this very important decision. They would be well served to review their position descriptions in light of this decision, and make certain in cases where they are sued under federal, state or local anti-discrimination statutes that they promptly assert the defense of “ministerial exception.”

By Tod J. Barrett, tbarrett@dsda.com