Disability Law Index - Employment: Religious Entities

Statute:

42 U.S.C. § 12113(c) (1990-2008) or 42 U.S.C § 12113(d) (2008-current)- Religious entities

(1) In general - This subchapter shall not prohibit 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.

(2) Religious tenets requirement - Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

Regulation:

29 C.F.R. § 1630.16(a) - Specific activities permitted - Religious entities

A religious corporation, association, educational institution, or society is permitted to give preference in employment to individuals of a particular religion to perform work connected with the carrying on by that corporation, association, educational institution, or society of its activities. A religious entity may require that all applicants and employees conform to the religious tenets of such organization. However, a religious entity may not discriminate against a qualified individual, who satisfies the permitted religious criteria, on the basis of his or her disability.

Case Law:

Hosanna Tabor Lutheran Church and School v. E.E.O.C., __ U.S. __ (January 13, 2012).

  • Religious employer had a First Amendment right to fire its employee for threatening to pursue her legal options under the ADA.
  • There is a ministerial exception to employment discrimination laws which allows religious organizations to choose their ministers.

Werft v. Desert Southwest Annual Conference of the United Methodist Church, 377 F.3d 1099 (9th Cir. 2004).

  • "The ministerial exception does not apply solely to the hiring and firing of ministers, but also relates to the broader relationship between an organized religious institution and its clergy"
  • "a minister's working conditions and the church's decision regarding whether or not to accommodate a minister's disability, are a part of the minister's employment relationship with the church"

Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999).

  • The "ministerial exception" applied to the ADA. Congress did not intend to regulate the employment relationship between church and minister. The First Amendment protects against undue interference with the personnel decisions of churches and religious leaders. If the employee is considered a "minister" and falls under the exception, the court may not inquire into his employment and must dismiss the suit against the religious organization.
  • The ministerial exception encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission.
  • Defendants are not required to advance a theological or religious explanation regarding its allegedly illegal employment actions.
  • The factors that a court must consider to see if a job falls under the ministerial exception:
    • whether employment decisions regarding the position at issue are made largely on religious criteria
    • whether the plaintiff was qualified and authorized to perform the ceremonies of the religious organization
    • whether the plaintiff engaged in activities traditionally considered ecclesiastical or religious