Q. Can employees sue for decisions based on religious beliefs?

A. Employees in nearly every organization can sue their employer for employment-related decisions the employer makes.

A landmark 2012 U. S. Supreme Court ruling, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, makes it much easier for churches and other ministries to defend themselves when church leaders make decisions based on their religious beliefs (belief-based decisions).

Title VII Applies to Employer/Employee Relationships

Title VII of the Civil Rights Act of 1964 is the most prominent federal law that has been enacted to provide equal employment opportunities for individuals, regardless of the person’s race, color, religion, sex, or national origin.

In order to comply with the Free Exercise Clause of the U.S. Constitution, Title VII includes certain exemptions for religious institutions for employment decisions that are based on the ministry’s religious beliefs. The Hosanna-Tabor ruling brought some clarity to this issue.

Ministerial Exception Recognized

In Hosanna-Tabor, the U.S. Supreme Court formally recognized a ministerial exception that effectively bars ministerial staff from suing their employer in response to employment-related, belief-based decisions that ministry leaders have made concerning the employee. The result of this ruling permits churches and related ministries to make hiring and firing decisions based on their religious beliefs.

Churches and ministries can protect themselves from non-ministerial staff lawsuits by clearly communicating the ministry’s expectations to job applicants and ministry employees from the first day of employment.

Who’s Considered Ministerial Staff?

In Hosanna-Tabor, the Supreme Court declined to specifically define who should be considered a minister for purposes of the exception. Instead, the justices said a court will look to see:

1. Whether the religious institution made its decision to hire the individual based “largely on religious criteria.”

2. Whether the individual is authorized to perform ceremonies of the church.

3. Whether the person engages in ecclesiastical or religious activities and “attends to the religious needs of the faithful” as part of their job function.

Based on these criteria, senior pastors, associate pastors, and other similar roles within a church or ministry would appear to fit within the three-factor test outlined above. Custodial staff, secretarial staff, and others whose jobs primarily support ministry work (as opposed to performing the ministry work itself) likely won’t be considered ministers for purposes of the exception.

Communicate Expectations to Limit Non-Ministerial Lawsuits

Churches and ministries can protect themselves from non-ministerial staff lawsuits by clearly communicating the ministry’s expectations to job applicants and ministry employees from the first day of employment. Ministry leaders should undertake this effort on several fronts:

Statement of belief: Include a statement of the ministry’s spiritual beliefs within the organization’s governing documents or bylaws. This lays the foundation for the ministry to operate in accordance with its stated beliefs.

Employee handbook: Tell job applicants and your employees what’s expected of ministry workers in writing in your employee handbook. Include a statement letting employees know that you expect them to follow and support the ministry’s spiritual beliefs, and abide by other requirements that the ministry sets forth for its employees.

Consistent response: If your church or ministry treats an employee or a group of employees differently than it does another person or group within the employee body, the odds of the ministry losing a lawsuit increase significantly.

Concrete steps you can take

To reduce the likelihood of an employee bringing a successful employment-related lawsuit against your church or ministry, consider the following steps:

1. Include a spiritual purpose provision in your governing documents/bylaws: Be sure your organizational governing documents clearly state your ministry’s spiritual purpose, your reliance on scripture, and the intent to advance the ministry in accordance with scripture. Where appropriate, quote scripture within the purpose statement.
   

2. Include a “morals clause” in your employee handbook: Be sure your employee handbook includes a policy telling your employees that the church expects them to support its spiritual purpose and behave in accordance with it.
   

3. Respond with sensitivity. Train your clergy, staff, and volunteers to approach individual needs and requests with empathy. Although you cannot meet every request or demand, the manner in which you convey your response is sometimes as important as what you have actually decided.
   

4. Consult with local counsel: When revising organizational documents and ministry policies and procedures, involve a local attorney. A wide variety of federal, state, and local laws apply to employer/employee relations, so consulting with a local attorney can provide guidance on any state-specific and local legal issues that you may encounter.