Ninth Circuit Applies Ministerial Exception to Religious Employer

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The Ninth Circuit Court of Appeals recently issued a decision in the case of Orr v. Christian Brothers High School, Inc. et al., which addresses the application of the ministerial exception to a religious employer. Although this is a non-published opinion, it is an excellent example of how the ministerial exception to federal and state employment laws applies to religious employers such as churches and religious schools.

Orr was employed at Christian Brothers High School (“the school”). After his termination, he brought legal claims against the school for racial harassment, discrimination, retaliation, and wrongful termination. The U.S. District Court for the Eastern District of California granted summary judgment in favor of the school and other defendants. Orr appealed, and the Ninth Circuit affirmed the lower court’s decision.

Defining “Minister” for the Purposes of the Ministerial Exception

While employed at the school, Orr engaged in various religious-based activities and responsibilities as part of his job duties, including:

  • Participating in religious services and activities
  • Aiding the school in developing a faith-based community and inculcating faith-based teachings
  • Supervising certain aspects of religious instruction and programming
  • Receiving religious education

The Ninth Circuit ruled that due to his job duties, Orr qualified as a “minister” for the purposes of the ministerial exception to employment laws. The U.S. Supreme Court previously has defined “ministers,” in part, as individuals whose role is to convey the Church’s message and carry out its mission. As a result, many teachers at religious schools qualify as ministers under the ministerial exception, even though they are not formal ministers.

Application of the Ministerial Exception

The ministerial exception to employment laws such as Title VII of the Civil Rights Act of 1964 arises from the First Amendment right of churches and other religious institutions to decide matters of church operations, including employment decisions, free from government intrusion.

Exceptions to the Ministerial Exception Dud Not Apply to Orr’s Claim

Some violations of employment law are not subject to the ministerial exception, such as sexual harassment claims unrelated to religious organizations’ employment decisions. For example, although Orr claimed that his claims of racial harassment created a hostile work environment that survived the ministerial exception, the court disagreed and ruled that this claim was too interwoven with employment decisions that his claims could not be separated from them.

The School Did Not Waive Its Right to the Statutory Exemption under FEHA

Orr also argued that the school had waived its statutory exemption for religious nonprofit organizations to the California Fair Employment & Housing Act (FEHA). However, since the school’s handbook did not explicitly reference FEHA or make representations that it would follow FEHA, the court found that it did not waive this statutory exemption.

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