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Can Civil Rights Be Religious Wrongs?
High court should uphold a teacher's right to bring a retaliation claim against a parochial school under the ADA

The National Law Journal
September 19, 2011

Onn Oct. 5, the U.S. Supreme Court will hear arguments in a very significant case that pits a Lutheran parochial school's assertion of First Amendment rights against the claims of the Equal Employment Opportunity Commission and a fired teacher, Cheryl Perich, of violations of the Americans With Disabilities Act (ADA). The high profile of this suit, Hosanna-Tabor Evan­gelical Lutheran Church and School v. EEOC, is reflected in interest by third parties — 31 amicus briefs have been filed — and by the church's retention of Professor Douglas Laycock of the University of Virginia School of Law, a leading authority on religious liberty, to represent it.

Hosanna-Tabor illustrates a recurring tension between two bedrock guarantees: the religion clauses of the First Amendment and the civil rights laws. Because the parties believe they are playing for high stakes, the ultimate decision will greatly disturb one side's adherents. Indeed, depending on the Court's precise disposition and reasoning, everyone involved may end up unhappy.

Perich taught elementary grades at the church's school, first serving as a "lay" teacher. After completing doctrinal courses, she became a "called" teacher with the title of "commissioned minister." Her duties, however, remained the same: principally, instructing her students in secular subjects. Although she had certain faith-based duties, such as leading her class in prayer and teaching religion once a week, these occupied only approximately 45 minutes a day.

Perich fell ill with narcolepsy and went on disability leave for the 2004-05 school year. When she wished to return several months later, school authorities, concerned that Perich's condition might endanger student safety, offered her a "peaceful release contract." Perich declined it and, cleared by her doctor, insisted on showing up at school. She told the principal that she would assert her ADA rights unless a compromise could be reached. Ultimately, the board's chairman wrote Perich that because of her "insubordination" and "disruptive" conduct — he stated she had "damaged, beyond repair" her relations with the school by "threatening to take legal action" — the board would ask the congregation to rescind her call.

After the rescission and her termination, she filed charges of discrimination and retaliation with the EEOC; it sued on her behalf on the retaliation claim. Perich and the EEOC sustained summary judgment in the trial court but prevailed in the U.S. Court of Appeals for the 6th Circuit.

As framed by the church, the case poses the question of whether the so-called ministerial exception, a judge-made doctrine shielding religious institutions from certain employment-related actions, covers a parochial school teacher whose "primary duties," as found by the 6th Circuit, were secular. (Although the Supreme Court has never discussed this exemption, all of the circuits recognize it while differing in the tests they use to resolve claims advanced under it.)

Resting on a tripod of First Amend­ment argumentation, the church invokes the establishment and free exercise clauses and the right to expressive association. It contends that the 6th Circuit's "minute-counting" approach "missed the big picture" of Perich's office: The church's Web site described its teachers as "fine Christian role models" who infuse God into the curriculum. It urges the Court to defer to this view of Perich's religious functions rather than "second-guess" the church's opinion on theological matters.

The EEOC and Perich assail all three legs of the church's argument; they also reject a categorical ministerial exception in favor of an as-applied approach to claims of constitutional exemption from civil rights laws. Regarding free exercise and association, they stand on firmer ground than the church.

Even if redressing Perich's injury might incidentally burden the church's rights to choose employees who engage in important religious work and to control its religious message, the government's compelling interest in eradicating discrimination ought to trump these. The church's seemingly stronger defense derives from establishment-clause concerns about the courts appointing ministers (though notably, Perich does not now seek reinstatement) and entangling themselves in spiritual questions.

Yet the church's contentions are truly sweeping. Asserting (as it did not at the time) that Perich was fired for violating a church rule requiring internal dispute resolution, the church concedes it dismissed her for threatening to sue, thereby invoking a "right to retaliate" directly at odds with the ADA and similar laws. Tellingly, although these statutes provide certain exemptions from substantive protections (e.g., for hiring co-religionists), no such exceptions apply in this context. Acceptance of claims, however sincere, of a tenet eschewing resort to the courts would insulate religious entities from even the process of inquiry into their challenged actions — an immunity previously disclaimed by the Court. Ohio Civil Rights Commission v. Dayton Christian Schools Inc., 477 U.S. 619 (1986) (dictum).

In sum, the Court should reject Hosanna-Tabor's overbroad position and render unto Caesar what is Caesar's by affirming Perich's right to freedom from retaliation — which is enshrined in laws inspired by constitutional guarantees of due process and equal protection.