Ministerial Exception in Title VII Cases Is Alive and Well Even After Being Waived

As recently reflected by the Fourth Circuit’s opinion in Billard v. Charlotte Catholic High School, Title VII has a notable ministerial exception that religiously affiliated entities such as private religious schools should pay close attention to. Where faith is at the core of an institution’s mission and certain employment decisions are made that implicate Title VII, the exception should be part of the analysis. The Fourth Circuit’s opinion provides a detailed review and application of the doctrine in a case where the argument had initially been waived at the trial level.

Background

Lonnie Billard was a teacher at Charlotte Catholic High School (CCHS). CCHS is operated by the Roman Catholic Diocese of Charlotte who views their religious mission to “spread the Gospel of Jesus Christ” where religion “infuses daily life at the school.” Although the diocese does not require all its teacher to be Catholic, it requires them to conform to Catholic teachings and prohibits employees from engaging in or advocating for conduct contrary to the moral tenets of the Catholic faith, including the Catholic Church’s rejection of same-sex marriage. 

Billard, who is gay, taught English and drama class as both a full time and substitute teacher, and appeared to be an excellent and beloved teacher. He posted on Facebook in 2014 that he and his partner were engaged to be married. When CCHS learned of his engagement, it opted not to invite back as a teacher and concluded that his plans to marry a same-sex partner violated the diocese’s policy against engaging in conduct contrary to the moral teachings of the Catholic Church. 

Notably, at the trial level CCHS stipulated that it would not pursue the ministerial exception because it believed that Billard would not qualify as a ministerial employee and, at the trial level at least, waived that affirmative defense. Title VII bans employment discrimination “because of” an “individual’s race, color, religion, sex, or national origin” (42 U.S.C. § 2000e-2(a)). Certain religious organizations are exempted, but the exemption has been understood to only apply to claims of religious discrimination, not claims of race or sex discrimination, so it was not the basis of the court’s opinion. 

After both parties filed motions for summary judgment, the trial court found in Billard’s favor holding that it was a “classic case of sex discrimination” where CCHS fired Billard because of his plans to marry his same-sex partner. 

Ruling

On appeal, the Fourth Circuit reversed the trial court’s ruling based on the ministerial exception. Even though CCHS appeared to have waived the ministerial exception at the trial level, the Fourth Circuit exercised its discretion to revive the defense and based its holding on the doctrine. The ministerial exception to Title VII application operates structurally to “categorically prohibit[] federal and state governments from becoming involved in religious leadership disputes” by “exempting from legal process ‘decisions of religious entities about the appointment and removal of ministers and persons in other positions of similar theological significance’ to prohibit the adjudication of disputes ‘beyond the ken of civil courts.’” Put another way, “civil courts like ours are ‘bound to stay out’ of employment disputes involving ministers – those ‘holding certain important positions with churches and other religious institutions.’” The court noted that the Supreme Court adopted the ministerial exception in 2012 and reaffirmed it in 2020, and that the exception is well-settled doctrine. The ministerial exception is a constitutional defense, and the court acknowledged that the general rule is to prefer statutory over constitutional grounds in ruling that an exception to that general rule was warranted. 

After describing the ministerial exception background, the court focused on the “function of Billard’s position” and its importance to CCHS’s “spiritual and pastoral mission,” concluding that Billard had “vital religious duties” and was a messenger of its faith to qualify for the exception. The real focus was on the employee’s job duties and what mattered was that the teacher “played a substantial role in conveying the Church’s message and carrying out its mission.” According to the court, “‘What matters, at bottom is what, is what an employee does,’ and how those functions and duties interact with the mission of a religious school.”

Although labeled the ministerial exception, a title such as minister is neither necessary nor sufficient to come within the ambit of the exception. The court examined closely the points from Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020) and Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), even though they were mindful not to treat the two cases as a “checklist.” They found that Billard was evaluated based on the degree to which he integrated faith throughout his classes and taught his subjects in a way agreeable with Catholic thought, indicating the performance of “vital religious duties” that implicate the ministerial exception. The court recognized that, unlike the prior cases, Billard was not regularly providing explicitly religious instruction, a “distinction [that] undoubtedly matters” but when weighed against the other relevant similarities was not dispositive. The court found “[m]ost important” that “faith infused CCHS’s classes and that as a teacher (as opposed to other employees in the institution) he held a particular role that was “at the very core of the mission of a private religious school” and “CCHS considered it ‘vital’ to its religious mission that its teachers bring a Catholic perspective to bear on Shakespeare as well as on the Bible.” All of that lead the court to conclude that Billard was covered by the ministerial exception.

The court ruled that it could overcome CCHS’s waiver and consider the exception sua sponte in a case involving “structural concerns regarding separation of powers” although it stopped short of saying that the ministerial exception was non-waivable generally as some other appellate courts had done. 

Other Recent Ministerial Decisions

Other recent courts have found the ministerial exception to apply to teachers (see, e.g., Butler v St. Stanislaus Kostka Catholic Academy, 609 F. Supp. 3d 184, 194 (E.D.N.Y. 2022) (ministerial exception applied to English and social studies teacher at Catholic school who was expected to teach secular subjections consistent with church teachings)). But the Fourth Circuit opinion mentioned the Supreme Judicial Court of Massachusetts who rejected the ministerial exception defense in the case of a professor of social work at a religious college, but highlighted the significant difference that the professor did not “pray with her student, participate in or lead religious services” as a distinction to the Our Lady of Guadalupe opinion (see DeWeese-Boyd v. Gordon Coll., 163 N.E.3d 1000, 1012 (Mass. 2021)). Other courts have concluded the ministerial exception did not apply to a customer service representative position with a religious organization as the position was secular, lacked religious substance, and did not implicate the fundamental purpose of the ministerial exception (see McMahon v. World Vision, Inc., -- F. Supp. 3d --, 2023 WL 8237111, at *12-13 (W.D. Wash. Nov. 28, 2023)). 

Conclusion

Religious institutions, especially private religious schools, should be aware of the ministerial exception doctrine for any Title VII analysis. The Supreme Court’s ruling in Bostock v. Clayton Cnty., 590 U.S. 644 (2020), that sexual orientation is a protected category under Title VII, could foreseeably create situations where the ministerial exception comes into play. As the Fourth Circuit noted, the ministerial exception is highly fact intensive, turning on the consideration of a variety of factors and circumstances rather than a rigid formula, so the job position in question has to be closely assessed.