Lawsuit Prevention

The Ministerial Exception: How Catholic Nonprofits Can Safeguard Their Right to Choose Their Own Leaders

In general, state and federal law prohibit discrimination based on religion and immutable characteristics such as race, sex, color, and national origin. But under the ministerial exception, churches, religious schools, and other qualifying religious organizations are exempt from these laws in connection with the hiring and firing of their ministerial employees. This protection applies only to employment decisions involving a distinct class of employees who are considered ministers. While the term “minister” encompasses more than just a church’s ordained clergy, the precise scope of the term is not clearly defined. There are, however, some guidelines that Catholic non-profits can follow to determine which of their employees might qualify as ministers.
In general, state and federal law prohibit discrimination based on religion and immutable characteristics such as race, sex, color, and national origin. But under the ministerial exception, churches, religious schools, and other qualifying religious organizations are exempt from these laws in connection with the hiring and firing of their ministerial employees. This protection applies only to employment decisions involving a distinct class of employees who are considered ministers. While the term “minister” encompasses more than just a church’s ordained clergy, the precise scope of the term is not clearly defined. There are, however, some guidelines that Catholic non-profits can follow to determine which of their employees might qualify as ministers.

Consider Mediation

Employment disputes are common and can quickly result in litigation. Whether tried before a jury, before an arbitrator, or before an administrative agency, employment litigation is expensive, time-consuming, and risky, and can result in unwanted front-page news. Faced with these concerns, many companies have adopted arbitration policies. But this approach has not gone unchallenged. For example, courts in California courts have often found arbitration agreements to be procedurally or substantively “unconscionable,” or both, and hence unenforceable. And last year the California legislature passed a law that would have banned arbitration as a condition for employment. While that legislation has been enjoined (as to arbitration agreements governed by the Federal Arbitration Act), if history is any guide, there will more challenges to come.
Employment disputes are common and can quickly result in litigation. Whether tried before a jury, before an arbitrator, or before an administrative agency, employment litigation is expensive, time-consuming, and risky, and can result in unwanted front-page news. Faced with these concerns, many companies have adopted arbitration policies. But this approach has not gone unchallenged. For example, courts in California courts have often found arbitration agreements to be procedurally or substantively “unconscionable,” or both, and hence unenforceable. And last year the California legislature passed a law that would have banned arbitration as a condition for employment. While that legislation has been enjoined (as to arbitration agreements governed by the Federal Arbitration Act), if history is any guide, there will more challenges to come.