| Summary: The US Supreme Court, voting 9-0 in the landmark case of “Hosanna-Tabor Evangelical Lutheran Church And School vs. Equal Employment Opportunity Commission, Et Al” recognized the “ministerial exception” to the 1964 Civil Rights Act. Under this exception, churches cannot be charged with employment discrimination by its ministers. The Court said, “It is impermissible for the government to contradict a church’s determination of who can act as its ministers.” (Jump to “US Supreme Court ruling in the Hosanna-Tabor case: A victory for religious freedom” or to “Are church staff considered ‘employees’ under the Labor Code of the Philippines?”) |
(Churches are divided on the issue of single females serving as missionaries. Some pastors actively send out or support single female missionaries. On the other hand, some pastors refuse to support them. One American missionary based in Metro Manila whom I counseled on a legal matter a couple of years ago says that only men can be missionaries because women cannot establish churches. The Asian Baptist Clearinghouse accredits single females as missionaries on the condition that they serve under the leadership of a male pastor. I don’t remember if it’s John Piper who said that single female missionaries may fall under “sunergoi” in 1 Corinthians 3:9.)
| Overview of the case: Cheryl Perich was a “commissioned minister” of Hosanna-Tabor Evangelical Lutheran Church in Redford, Michigan. Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. She led the chapel service herself about twice a year. Besides these duties, Perich also taught math, language arts, social studies, science, gym, art, and music in Hosanna-Tabor’s elementary school. After Perich got sick, Hosanna-Tabor did not allow her to teach again. When she threatened to file a case of employment discrimination, Hosanna-Tabor rescinded her calling as a minister and then fired her. “Perich filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation. Invoking what is known as the ‘ministerial exception,’ Hosanna-Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers.” (From syllabus of the Supreme Court ruling). The District Court ruled in Hosanna-Tabor’s favor but the Sixth Circuit Court of Appeals reversed the decision. Based on extensive decisions of the various courts of appeals, the Sixth Circuit recognized the existence of a ministerial exception for pastors, priests, and rabbis based on the First Amendment. But it concluded that Perich did not qualify as a “minister” under the exception. It noted that in her seven hour workday, she spent about six hours and fifteen minutes teaching these secular subjects and only 45 minutes for her religious duties. Hosanna-Tabor appealed to the Supreme Court. It asked the Court to rule on the question of “whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship”. In its groundbreaking decision written by Chief Justice Roberts, the Supreme Court recognized for the first time the “ministerial exception” to anti-discrimination laws. The Supreme Court ruled that Perich was a minister even if she was performing secular duties and thus, the government cannot intervene in the dispute between her and Hosanna-Tabor. |
Facts of the Hosanna-Tabor case; Difference between “called teachers” and “lay teachers”
[1] Hosanna-Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.”
“Lay” teachers, by contrast, are not required to be trained by the Synod or even to be Lutheran. Although lay and called teachers at Hosanna-Tabor generally performed the same duties, lay teachers were hired only when called teachers were unavailable.
Cheryl Perich was a commissioned minister but performed secular duties
[2] After Cheryl Perich completed the required training, Hosanna-Tabor asked her to become a called teacher. Perich accepted the call and was designated a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.
Perich’s sickness and eventual firing
[3] Perich developed narcolepsy and began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The principal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year. The principal also expressed concern that Perich was not yet ready to return to the classroom. The congregation subsequently offered to pay a portion of Perich’s health insurance premiums in exchange for her resignation as a called teacher. Perich refused to resign.
In February, Perich presented herself at the school and refused to leave until she received written documentation that she had reported to work. The principal later called Perich and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights.
In a subsequent letter, the chairman of the school board advised Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich’s “insubordination and disruptive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” The congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination.
Perich files case for discrimination; Hosanna-Tabor’s defense of “ministerial exception”
[4] Perich filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation.
Invoking what is known as the “ministerial exception,” Hosanna-Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relationship between a religious institution and one of its ministers. The District Court agreed and granted summary judgment in Hosanna-Tabor’s favor.
The Sixth Circuit Court of Appeals recognized the existence of a ministerial exception rooted in the First Amendment, but concluded that Perich did not qualify as a “minister” under the exception. The Court of Appeals noted that she “spent approximately six hours and fifteen minutes of her seven hour day teaching secular subjects, using secular textbooks, without incorporating religion into the secular material.”
| Highlights of the ruling: “It is impermissible for the government to contradict a church’s determination of who can act as its ministers.” “Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” “The purpose of the (ministerial) exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” — is the church’s alone.” “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.” Relevant discussion: “The First Amendment And The Ministerial Exemption: Federal Statutory Mandates” by Georgia L. Holmes and Penny Herickhoff, Minnesota State University (The Journal of Applied Business Research, September-October 2012) |
[1] “The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.”
[2] “Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers. The Court agrees that there is such a ministerial exception. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”
[3] “This Court first considered the issue of government interference with a church’s ability to select its own ministers in the context of disputes over church property. This Court’s decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.”
[4] “Because Perich was a minister within the meaning of the ministerial exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer.”
[5] “The ministerial exception is not limited to the head of a religious congregation. The Court, however, does not adopt a rigid formula for deciding when an employee qualifies as a minister. Here, it is enough to conclude that the exception covers Perich, given all the circumstances of her employment. Hosanna-Tabor held her out as a minister, with a role distinct from that of most of its members. That title represented a significant degree of religious training followed by a formal process of commissioning. Perich also held herself out as a minister by, for example, accepting the formal call to religious service. And her job duties reflected a role in conveying the Church’s message and carrying out its mission: As a source of religious instruction, Perich played an important part in transmitting the Lutheran faith.”
[6] “The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”
| If Perich had merely been a lay teacher, then she could have not been fired under the law. But as the US Supreme Court ruled, Perich was a commissioned minister, and therefore, the government cannot intervene in the dispute between her and the church. Relevant discussions: “Fort Wayne case may force SCOTUS to define who qualifies as a minister” March 12, 2014 “Archdiocese of Cincinnati expands morals clause in teacher contracts” March 6, 2014 (as a direct result of Hosanna-Tabor, the Archdiocese now calls its teachers as “Teacher-Minister”) |
Implications of the Hosanna-Tabor case: Are church staff “employees” protected by the Labor Code of the Philippines?
(Note: The freedom of religion clause in the 1987 Constitution of the Philippines is patterned after that of the US Constitution. The Philippine Supreme Court has repeatedly cited rulings of the US Supreme Court on freedom of religion. Please read my discussion of the Estrada versus Escritor case, the landmark decision on freedom of religion in the Philippines.)
Baptist churches in the Philippines have people serving as ACE teachers, secretaries, drivers, messengers, janitors, etc. Most churches do not pay them salaries but instead give them financial “love gifts” on a regular basis. Some churches additionally provide them with SSS and Philhealth coverage. These churches tell them that they are not employees and that their work is a ministry.
The question is, can church staff claim that they are employees protected by and entitled to benefits under the Labor Code of the Philippines like regularization, security of tenure, 13th month pay, overtime pay, etc?
Many years ago, one of my law school classmates (a GCF member) handled a case involving a janitor in a Baptist church in Metro Manila. When the pastor saw that the janitor failed to clean up a spot on the church floor, he fired the janitor right there and then. My classmate helped the janitor file with the National Labor Relations Commission (NLRC) a case of illegal termination against the church. As far as I know, the janitor and the pastor settled the case amicably. The labor arbiter did not have the opportunity therefore to rule on whether someone working as a janitor in a church is an employee protected under the Labor Code.
Four-fold test to determine if there is employer-employee relationship:
Right of control test: There is an employer-employee relationship when the person for whom the services are performed reserves the right to control not only the end achieved but also the manner and means used to achieve that end. |
(1) they perform work necessary and desirable for the church, as defined in Article 280 of the Labor Code, and
(2) they are under the control of the church with respect to the means and methods by which their work is to be done.
It did not matter, the arbiter said, whether these people are paid only with “love gifts” and not with salaries.
Because the NLRC or our Supreme Court has not had the occasion to rule on this issue, the question remains unanswered. Based on the Hosanna-Tabor ruling, however, we can draw some preliminary conclusions or pose some additional questions:
[1] If a church fires its pastor or associate pastor, the courts cannot intervene as long as the church follows its own rules or established procedures. As the US Supreme Court ruled, “It is impermissible for the government to contradict a church’s determination of who can act as its ministers.”
[2] Church staff who are not commissioned or ordained ministers and are performing secular duties (like a driver for the pastor and his family, or a janitor) may possibly qualify as employees with rights and privileges under the Labor Code. ACE teachers who are not commissioned or ordained ministers may also conceivably qualify as employees.
What about so-called “church workers”? Churches oftentimes get Bible school students or graduates to help in soulwinning, visitation, Sunday School, etc. If they are not commissioned or ordained, then they may conceivably qualify as employees under the Labor Code.
[3] What if the church, in learning from the Hosanna-Tabor ruling, commissions as religious ministers everyone in the church staff? Will this prevent anyone in the church staff from claiming protection under the Labor Code? As I stated above, churches tell these people at the outset that they are not employees but are engaged in ministry.
During the oral arguments before the US Supreme Court, Douglas Laycock, a University of Virginia law professor who represented Hosanna-Tabor, said that “a church can’t simply declare all of its participants as ministers as a pretext to avoiding government intrusion”. He explained: “The fact that you’re expected to witness to the faith when the occasion arises doesn’t make you a minister. We think there should be deference to good faith understandings. But we are not arguing for a rule that would enable an organization to fraudulently declare that everyone is a minister when it’s not true.”
[4] If a church provides SSS and Philhealth coverage for its staff, this can possibly be taken as proof that they are employees of the church. (Please read below the 1999 Philippine Supreme Court ruling in Austria vs. NLRC involving a Seventh-Day Adventist pastor.)
[5] The Labor Code provides for “project employment” where a person works only for a specific period of time. Can a church resort to putting its church staff on “project employment”? I once counseled an American missionary who established a nationally-known ministry (not a church). Besides mismanagement, the numerous labor cases filed by its employees doomed the ministry. The missionary told me that he could have avoided all the problems if only he had known about “project employment”.
(Note: Please don’t misunderstand me on no. 4 above. I am not saying that churches should not provide these benefits for the church staff. I am just pointing out a potential legal issue. Many years ago, the president of a large Christian school asked me to implement a forced resignation or early retirement plan for its teachers. The school, as a cost-cutting measure, wanted to contractualize its teachers. I refused to accept the case.)
Philippine Supreme Court decision in Austria vs. NLRC G.R. No. 124382, August 16, 1999: Seventh-Day Adventist pastor is an employee protected by Labor Code
[1] Dionisio V. Austria worked with the Seventh-Day Adventists (SDA) for 28 years from 1963 to 1991, first as a literature evangelist in Negros island and finally as a district pastor in Bacolod City.
[2] In October 1991, the SDA dismissed Austria on the following grounds: misappropriation of denominational funds (tithes and offerings), willful breach of trust, serious misconduct, gross and habitual neglect of duties, and commission of an offense against the person of employer’s duly authorized representative.
[3] Austria then filed before the Labor Arbiter a case for illegal dismissal against the SDA and its officers. He asked for reinstatement with backwages and benefits, moral and exemplary damages, and other labor law benefits.
[4] During the hearings, the SDA submitted a copy of Austria’s letter of termination and admitted in a certification that Austria has been its employee for 28 years. The SDA even registered Austria with the Social Security System as its employee.
[5] The Labor Arbiter first ruled in Austria’s favor, ordering the SDA to reinstate him to his former position as pastor, without loss of seniority and other rights. The Arbiter also ordered the SDA to pay Austria’s backwages.
[6] The SDA appealed the decision of the Labor Arbiter to the National Labor Relations Commission, Fourth Division, Cebu City. In its August 1994 decision, the NLRC reversed the Arbiter’s decision and dismissed Austria’s case for lack of merit.
[7] Austria filed a motion for reconsideration. On July 1995, the NLRC issued a Resolution reversing its original decision and reinstated the Arbiter’s decision.
[8] The SDA then filed a motion for reconsideration of the NLRC’s July 1995 Resolution. For the first time, the SDA raised the issue that the Labor Arbiter has no jurisdiction over the complaint filed by Austria due to the constitutional provision on the separation of church and State. The SDA claimed that the case involves ecclesiastical affair to which the State cannot interfere.
[9] In January 1996, the NLRC, without ruling on the merits of the case, reversed itself once again. It sustained the argument posed by the SDA and, accordingly, dismissed the complaint for lack of jurisdiction.
[10] Austria appealed to the Supreme Court. He asked the Court to resolve the following issues:
- Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint filed by petitioner against the SDA;
- Whether or not the termination of the services of petitioner is an ecclesiastical affair, and, as such, involves the separation of church and state; and
- Whether or not his termination is valid.
[12] The Court ruled that the SDA could no longer raise the issue of jurisdiction:
It is already too late in the day for private respondents to question the jurisdiction of the NLRC and the Labor Arbiter since the SDA had fully participated in the trials and hearings of the case from start to finish. The Court has already ruled that the active participation of a party against whom the action was brought, coupled with his failure to object to the jurisdiction of the court or quasi-judicial body where the action is pending, is tantamount to an invocation of that jurisdiction and a willingness to abide by the resolution of the case and will bar said party from later on impugning the court or body’s jurisdiction. Thus, the active participation of private respondents in the proceedings before the Labor Arbiter and the NLRC mooted the question on jurisdiction.[13] The Court ruled that conflict between the SDA and Austria was not an ecclesiastical affair and did not involve the principle of separation of church and State. The Court explained:
The rationale of the principle of the separation of church and state is summed up in the familiar saying, “Strong fences make good neighbors.” The idea advocated by this principle is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions. The demarcation line calls on the entities to “render therefore unto Ceasar the things that are Ceasar’s and unto God the things that are God’s.” While the State is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters.
The case at bar does not concern an ecclesiastical or purely religious affair as to bar the State from taking cognizance of the same. An ecclesiastical affair is “one that concerns doctrine, creed, or form or worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of the membership, and the power of excluding from such associations those deemed unworthy of membership. Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with which attached religious significance. The case at bar does not even remotely concern any of the abovecited examples.
While the matter at hand relates to the church and its religious minister it does not ipso facto give the case a religious significance. Simply stated, what is involved here is the relationship of the church as an employer and the minister as an employee. It is purely secular and has no relation whatsoever with the practice of faith, worship or doctrines of the church. In this case, petitioner was not excommunicated or expelled from the membership of the SDA but was terminated from employment. Indeed, the matter of terminating an employee, which is purely secular in nature, is different from the ecclesiastical act of expelling a member from the religious congregation.[14] The Court sustained the finding of the Labor Arbiter that Austria was terminated from service without just or lawful cause. Having been illegally dismissed, Austria was entitled to reinstatement to his former position without loss of seniority right and the payment of full backwages without any deduction corresponding to the period from his illegal dismissal up to actual reinstatement.
Relevant articles:
[1] US Supreme Court Judges cannot get involved in church dispute (Associated press)
[2] Church Wins Firing Case at Supreme Court (Christianity Today)
[3] Due process and two-notice rule in termination of employment; five calendar days to answer the charges and hearing required
[4] Transcripts of the oral arguments before the US Supreme Court
