Five Steps Every Church or Ministry Should Take to Protect Their Employment Decisions From Government Intrusion

By August 5, 2020 Church

President Ronald Reagan’s director of personnel is quoted as saying, “Personnel is policy.” It’s a pithy way of describing the truism that the people who work for an organization shape and mold the organization. They portray it to the outside world and embody the beliefs and values of the organization. In many ways, the people who work for an organization make it what it is and also have the power to change it within their scope of authority in the organization.

This comes into sharper focus for churches and religious ministries. A religious organization that hires a new CEO or a church who hires a new pastor expects that the leader will faithfully proclaim doctrine and stay true to the mission. Churches and religious ministries likewise demand doctrinal fidelity and behavior from their employees. Employees and leaders who go astray can cause enormous harm to the church or ministry and its witness to a watching world.

The First Amendment confirms, as the United States Supreme Court stated in 1952, the freedom of churches and religious organizations to “decide for themselves, free from state interference matters of church government as well as those of faith and doctrine.” Yet, this freedom has been the subject of debate in light of the proliferation of employment nondiscrimination laws. These non-discrimination laws override the general at-will employment structure in place in most states, including Arizona. These laws generally state that an employee cannot be hired, fired, or that action cannot be taken against an employee based on a protected category such as race, religion, sex, national origin—and since June 2020—sexual orientation, or gender identity (more on that in a forthcoming article).

Naturally, non-discrimination laws collide directly with the independence of a religious organization to select its own employees who will guide, mold, proclaim, and embody the religious beliefs of the organization. So how much freedom do churches and ministries have when it comes to their employees? Are they subject to employment non- discrimination laws?

The United States Supreme Court decided an important case on July 8, 2020 that broadens the ability of churches and religious ministries to select their own employees free of government interference. The case (really two cases that were consolidated into one opinion) involved religious schoolteachers whose contracts for teaching were not renewed. One teacher alleged a violation of the Age Discrimination in Employment Act and the other claimed that her contract was not renewed after she requested medical leave. The Supreme Court framed the question in the case as: “These cases require us to decide whether the First Amendment permits courts to intervene in employment disputes involving teachers at religious schools who are entrusted with the responsibility of instructing their students in the faith.” In both cases, the Court held that the First Amendment barred the teachers’ claims.

The dispute centered around who is a “ministerial” employee such that the religious organization can claim First Amendment protection for their position. In 2012, the Supreme Court recognized the “ministerial exception” to employment non-discrimination laws. That case involved another religious schoolteacher. The Court held that certain positions within a religious organization were entitled to special protection under the First Amendment. It declined to adopt a rigid formula regarding which positions would fall within this protected status but it looked to certain “relevant circumstances” such as the teacher’s religious title, the fact that her position reflected a significant degree of religious teaching, that she held herself out as a minister of the church where she was teaching, and that her job duties reflected a role in conveying the church’s message and carrying out its
mission.

The 2012 Supreme Court decision spawned numerous cases across the country where courts wrestled with which employees fell within the “ministerial exception” and how to make that decision. Some courts adopted the “relevant circumstances” identified by the Supreme Court and rigidly applied them. Employees in these cases who did not strictly meet all four circumstances identified by the Supreme Court were allowed to maintain a lawsuit against a church or ministry for employment discrimination. The Court, in its recent opinion, rejected this approach and reaffirmed that there is no rigid formula to apply in determining when an employee falls within the “ministerial exception.”

For example, the Court discussed that placing too much weight on the title of an employee as a “minister” could discriminate against the religious beliefs of those religions who do not use the title. Likewise, placing too much emphasis on formal religious training of the employee could discriminate against religions who select and employ leaders without any requirement of formal theological training.

“What matters, at bottom, is what an employee does,” the Court said. The Court held that lower courts must “take all relevant circumstances into account…to determine whether  each particular position implicate[s] the fundamental purpose of the exception.” What is important is determining whether the employee in question does the important work of carrying on the religious mission and conveying the religious message. Protecting these employees from government intrusion when an employment action is taken protects the religious organization’s “autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.”

So what steps should churches and ministries take in light of this important decision? The following actions can help prepare a church or ministry for a solid defense to a claim of employment discrimination by a “ministerial” employee:

1. Clearly identify which employees the church or ministry will contend are “ministerial” employees. Remember that the title of the employee does not have to be that of a minister to merit protection and that the Supreme Court significantly broadened which employees can fall within this category. But be balanced. Designating a night custodian who never meets anyone as a “minister” will not stand up in court.

2. For those employees identified as “ministerial,” prepare job descriptions specifically outlining how the employee’s job functions convey the religious message of the church or ministry and carries out the religious mission of the organization. Take the time to prepare these job descriptions keeping in mind that they may be reviewed by a court. Where possible, use scriptures and religious doctrine to support the job description. Require the employee to lead religious services, prayers, or events. Make it plain how the employee is vital to the religious mission of the organization. It should be crystal clear to a reviewing court that the employee is a “ministerial” employee by reviewing the job description.

3. Have the employee read and sign the job description and certify that they understand it and agree to faithfully execute the job duties. Review the job description annually with the employee and have them re-sign it annually. Keep permanent copies in their employment file.

4. Conduct reviews that assess an employee’s job performance against the job description. Holding the employee to the written job description places weight on the fact that the job description is true and not just mere words.

5. Require the employee to review the statement of faith of the organization and sign to certify their agreement with it. Require this review and signature annually and keep permanent copies in the employee’s file.

These steps are time consuming and a bit tedious, but they are vitally important to protect the right of your ministry to hire, fire, and make employment decisions free of government intrusion or oversight. Taking care on the front side will provide significant protection.

If your church or ministry needs help with any of these steps or is facing an employment action that could potentially lead to a legal claim, the attorneys at Provident Law are ready to help. We would be honored to stand with your church or ministry to defend your First Amendment rights.

Erik Stanley is an attorney at Provident Law where he focuses his practice on providing excellent legal representation of churches and religious organizations. Before joining Provident Law, Erik was Senior Counsel and the Director of the Center for Christian Ministries at Alliance Defending Freedom where he led ADF’s focus to protect and defend the First Amendment rights of churches and ministries. Erik has over twenty years’ experience in the field of religious liberties representing numerous churches and ministries. Erik has appeared on print and broadcast national media outlets to discuss religious liberty issues and cases. He was lead counsel in 2014 of the “Houston 5” pastors whose sermons were subpoenaed by the Mayor of Houston, and was second chair before the United States Supreme Court in 2017 in the Trinity Lutheran Church v. Comer case which established the right of churches to participate equally in neutral government grant programs. Erik obtained his juris doctorate from Temple University School of Law and holds a Master of Divinity from Liberty University Theological Seminary.