This blog entry asks the question as to what is the status of the ADA and the Rehabilitation Act with respect to employees that work for religious institutions. Recently, the United States Supreme Court decided the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012). In that case, a case in which the employee suffered from narcolepsy and sued under the Americans with Disabilities Act, the Supreme Court unanimously held that there existed under the First Amendment to the U.S. Constitution a ministerial exception that protected religious institutions from being subject to discrimination suits where the employee was a minister. While everybody agreed with this principle, the problem is, is that the justices could not agree on how to go about figuring out what a minister is. Justice Roberts focused on the training of the employee and the title that the employee has. Id. at 707-709. Justice Thomas focused on whether the religious organization had a good faith belief that the person is a minister based on a sincere determination of the religious entity that the person was a minister. Id. at 710-711. Justice Alito and Justice Kagan focused on the functions of the employee. Id. at 712-715. Since this is the first time the Supreme Court has visited this issue, it is unclear as to how this is all going to shake out because the courts below may choose to decide to follow one of these opinions or the other. You could get to different places depending upon which opinion is used. For example, as pointed out in the opinion, some faiths have ordination while many others don’t. For example, in the Jewish faith only rabbis and Cantors are ordained. Therefore, if you had an employee performing religious duties but whom was not ordained, an argument could be made that under Justice Thomas’s opinion, that person would not be considered a minister. Certainly, under the opinion of Justice Alito and Justice Kagan that person probably would be. With respect to the opinion of Justice Roberts, such a person may or may not be considered a minister depending upon his or her training and his or her title and perhaps some other factors as well.  Pointedly, the opinion of the court written by Justice Roberts, says that the decision does not mean whether other types of suits are barred, such as breach of contract or tort law claims against the employers.

What about the Rehabilitation Act? That act, 29 U.S.C. 794, says that an entity that takes federal funds must not discriminate against a person with a disability in their programs or activities. This statute also says that the discrimination must be the sole cause of the adverse action . Under the Rehabilitation Act, there are two questions that arise. First, is a program or activity involved. With respect to state and local government as well as colleges and other public school systems, program or activity refers to all the operations of those entities. 29 U.S.C. § 794(b)(1-3). With respect to private entities programs or activities only refers to the entire entity if the assistance is extended to the organization as a whole unless that organization is involved in the business of providing education, healthcare, housing, social services, or parks and recreation. 29 U.S.C. 794(b)(3). Therefore, depending upon the entity involved, you may have an issue as to whether a program or activity is involved with respect to the employee. Also, you may have an issue with respect to whether the employee can show whether the disability was the sole cause of the adverse action.

It is also possible that you may never reach the question of whether the Rehabilitation Act applies. There is one case that has addressed the issue of whether an entity taking federal funds waives its rights with respect to the ministerial exception. That case, Petruska v. Gannon University , 462 F.3d 294 (3d Cir. 2006), held that taking federal funds by itself does not waive the ministerial exception.

So what does this all mean. First, if you are an employer running a religious institution you would want to give all your employees at least some religious duties so that at least under the opinion of Justice Alito and Justice Kagan you would be able to consider them ministers. To be able to become a minister under Justice Roberts opinion, it would help if the position the employee was in required religious training and that requirement was in the job description with the title indicating as such. With respect to Justice Thomas’s opinion, there really isn’t much an employer can do as the determination of whether a person would be a minister is going to be a matter of the religious tenets of the faith. On the employee side, the employee should insist, if at all possible, on the contract that they have with the school containing a clause in it that the school will not discriminate based on a variety of characteristics, such as those contained in federal and state antidiscrimination laws. Alternatively, depending upon the state, if the religious institution has an employee handbook stating within it that they will not discriminate, the employee may be able to use that as the basis for breach of contract claim. Finally, the federal government may play a role here. For example, Petruska leaves open for the federal government to make as a condition of accepting federal funds that the employer explicitly waive their rights under the ministerial exception. It is possible that such an explicit waiver may indeed waive the ministerial exception. After all, nothing compels a religious entity to accept federal funds and there are some religious institution that do not accept any such federal funds. Further, if the waiver is explicit, then it is simply a matter of agreeing to a contractual term as a condition of receiving the monies.

Finally, expect to see an awful lot of litigation in the future as to whether employees are ministers. Also, the federal funding issue will be an interesting one to follow as well. Finally, it will be interesting to see whether you start seeing explicit waivers of the ministerial exception as a condition of receiving federal funds.