The Ministerial Exception: How Church Workers Lost Legal Employment Protection
by Loren Seibold | 17 January 2025 |
In comments under a recent Aunt Sevvy, someone asked about the status of church employees under the law. The question intrigued me enough that I started digging a bit into it.
(I’m focusing here on the United States, since that’s where I have lived and worked. Perhaps others will join in the comments to describe how it is different in their countries.)
The Fair Labor Standards Act (FLSA) defines protections for wage earners, not people who are salaried. So the FLSA has little to do with pastors, teachers, or church administrators, who are salaried employees. Where institutions have secretaries, cooks, or janitors who work by the hour, those fall under FLSA rules: the employer has to pay them at least the United States federal minimum wage (an embarrassing $7.25 per hour), give them overtime pay, and a few other considerations.
The Equal Employment Opportunity Commission (EEOC) is designed to protect against discrimination in the workplace. It makes it illegal to discriminate against someone for their race, color, religion, sex, national origin, age, disability, pregnancy, or genetic information. In addition to a bunch of record-keeping requirements, it also prohibits retaliation against someone who points out discrimination.
The solution
Of course, rarely does an employer say, “I’m firing you because you’re female/old/dark-skinned”—which means that proving to the EEOC’s satisfaction that you’ve been dismissed wrongly is hard. The employer will always offer another reason, which is why if an employer has treated an employee badly and they can’t come to a quick resolution, many people conclude it isn’t worth the hassle.
So let’s say this right away: the best situation to work in is where an employer values their employees, treats them respectfully, communicates well with them, helps them develop professionally, keeps records, acts quickly to address problems or conflicts, and has well-documented reasons for dismissing people.
This is how our church, at best, should work. It doesn’t always.
Since the free exercise clause was written, it’s been clearly understood that in the United States, the government can’t insist that a church hire a pastor who disagrees with the church’s beliefs. The Adventist church needn’t hire a Lutheran pastor, for example, or even keep a pastor who becomes a Lutheran while he is working for the church.
Where the situation becomes blurred is in religious schools or management jobs. Is being a bookkeeper in a religious organization, or a math teacher in a school run by a church, a religious job?
The courts have provided a broad ruling that allows churches to handle that. It’s called the ministerial exception.
In 1999 a woman teaching at a Lutheran school in Michigan took sick leave because she suffered from narcolepsy. Like most church school teachers, among her teaching curriculum were Bible classes, though she wasn’t trained in theology, nor was she ordained.
When she was well and wanted to return, she was told they had hired someone else. When she threatened to sue, she was fired for “insubordination and disruptive behavior.”
Since this involved both disability and retaliation, normally it would come under the protection of the Americans with Disabilities Act (ADA), which is enforced by the EEOC. But the Supreme Court decided that
“…the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”
Clarence Thomas wrote that the government has no choice but to
“…defer to a religious organization’s good-faith understanding of who qualifies as a minister.”
It appears that a religious organization gets to decide if you’re a minister. Subsequent decisions (Our Lady of Guadalupe School v. Morrissey-Berru in 2020) have broadened this even more, to the point that religious organizations don’t need to worry very much about federal employment laws.
This is called the ministerial exception.
Many Christian leaders were happy with the decision because they felt it protected religion against government overreach. The New York Times, however, noted that
“…the ruling has broad sweep. It abandons the court’s longtime practice of balancing the interest in the free exercise of religion against important government interests, like protection against workplace bias or retaliation.”
The ministerial exception comes home
These SCOTUS (Supreme Court of the United States) decisions were tested in the Adventist church in 2016. Doris Curl had been teaching music at a Beltsville, Maryland, Adventist school full time for 25 years. She had training in education and music, but not in theology. As a music teacher in a Seventh-day Adventist school, though, and church member herself, she often taught sacred music, and occasionally led her students in singing in area churches.
In 2013 she sustained injury while teaching that left her with physical and neurological problems. After some attempts to get her back full time, the Potomac Conference rescinded her contract. The opinion of the United States District Court in Maryland said that the
“Defendants’ sole argument in support of their Motion is that all of Plaintiff’s claims are barred by the so-called ministerial exception grounded in the First Amendment.… In Hosanna-Tabor, the United States Supreme Court for the first time affirmed, after extensively examining the historical background of the First Amendment, that the ministerial exception is an affirmative defense that ‘prevents government entanglement in religion by precluding employment discrimination suits’ where such a suit would require courts to become involved in the relationship between a religious institution and its ministers.”
Doris Curl’s claim was denied.
It’s legal. Is it right?
If you work for a church or a church school, you need to know that you effectively have almost no recourse in the law. The policies of your institution might spell out a process, and those policies should be followed, but they aren’t always. In the end, the church merely needs to say that you are a minister and you can be fired at will, for any or no reason.
Some problems come to mind.
- There are people working for institutions who really aren’t doing anything religious. If you’re an accountant, for example, you have probably studied accountancy, not theology. You might be a church member. Perhaps you volunteer to teach an occasional Sabbath School class at church. You try to set a Christian example while working in the school office. Maybe you even read a worship to the children occasionally. But are you a minister? If there is a conflict, the school can say you are, which makes it easier should they wish to unemploy you.
- It looks pretty heartless. Doris Curl said that she was injured at work—a classic ADA situation. It isn’t clear what that injury was. But when she sought accommodation for her injury, including consultations and letters from her physician, the school lost patience. They decided not to renew her contract because under law she could be called a minister. (Hosanna-Tabor even bars claims of retaliation under the ADA.)
- It complicates the concept of ordination. The church has for several decades been in a vigorous debate about what is necessary to be an ordained pastor. Yet this makes anyone the church wants to fire—even people with no ministerial training or duties, and even if they’re female—into a minister. Not long ago, in an Adventist college, a vice president was removed. There were probably reasons for parting with him, but it wasn’t those reasons the employer relied upon: because he had once been ordained, they used the ministerial exception.
- It disincentivizes the employer to be rigorous in personnel management. Most leaders are aware—or should be—that there are conventional processes for working with employees. You monitor a person’s work and keep records. You don’t discriminate against them for personal reasons. You try to help them to grow their skills, and improve in areas of weakness. If there comes a time when it is best for you to part company with them, you have compiled legitimate reasons, backed up by records and warnings, to show why you are doing so. The ministerial exception shortcuts all of that, which could create a more vulnerable and less secure working environment. A church leader in the General Conference office admitted to me that he was very concerned that church-related organizations were relying too much on the ministerial exception, and not enough on good management and record-keeping.
I worked for the church for about 40 years. I’ve seen the church at its best and its worst. Its worst has too often been when it deals with personnel matters. I wish we’d decide to be ethical and considerate in how we deal with those who work for us.
Loren Seibold is the Executive Editor of Adventist Today magazine and website
