The Ministerial Exception: An Important Defense for Religious Employers

Representing religious institutions, from time to time, we get questions about the ministerial exception and its interplay with employment law. Under the ministerial exception, individuals performing the duties of a minister are exempt from the application of certain discrimination laws (for example, age, sex and disability discrimination) and, in some cases, other laws as well (Kentucky cases have prohibited ministers from pursuing breach of contract cases against their churches).  Our clients are often surprised to find that ministerial credentials are not required; however, the job position must be integral to the practice of the faith.

The ministerial exception is based upon a religious organization’s First Amendment right to control its own internal affairs, including the selection of its religious leaders.  The United States Supreme Court has held that requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, violates the Free Exercise and Establishment Clauses of the First Amendment.  

Recent case law on the subject indicates that courts will decide the application of the exception on a case-by-case basis, considering some or all of the following factors:

  • Has the employee completed theological studies or religious training?
  • Does the employee hold a formal religious title?
  • Does the substance of the employee’s job include religious duties?
  • Does the employee hold him/herself out as a type of minister?
  • Does the employee lead a religious organization?
  • Does the employee serve as a messenger or teacher of the church’s faith?
  • Does the administrative manual governing the job position set forth a mission of faith formation and spiritual development?
  • Is the employee required to be an adherent to the faith?

By way of example, some courts have found the following to be within the ministerial exception: a church music director whose duties included playing the piano during services; a press secretary; a high school principal; and nursing-home staff.  

For religious institutions, this legal doctrine can be an important defense to discrimination claims (and possibly other claims) asserted by an employee.  Religious employers should conduct an analysis of their employees’ duties and responsibilities and be able to articulate who is a “minister” and why. Well-defined job descriptions are helpful in determining when an employer is entitled to call on the ministerial exception.  Because the distinctions between the classifications are complex and highly fact-dependent, it is recommended that religious employers seek legal counsel before discharging an employee on religious grounds.