A former elementary school teacher at a Milwaukee-based religious school failed to have her disability lawsuit reinstated by a federal appeals court, because of a concept known as the “ministerial exception.” The appeals court’s decision is significant, because it advances a “totality of the circumstances” approach to applying the ministerial exception.
The ministerial exception is designed to prevent the government from interfering in the private affairs of religious institutions. However, for individual employees the exception has a detrimental impact in depriving these employees of the protections of anti-discrimination laws.
In this case, Miriam Grussgott worked as a teacher at Milwaukee Jewish Day School beginning in 2013. She taught both Hebrew and Jewish studies to first and second-graders. The school re-hired her for the 2014-15 school year to teach second-and third-graders.
Unfortunately, she developed a brain tumor in 2013, which hindered her cognitive abilities. She returned to work in June 2014. However, in March 2015, Grussgott could not remember an event in a telephone conversation with a student’s parent. The parent taunted her. Grussgott’s husband, a rabbi, responded by sending an e-mail criticizing the parent. After this incident, the school terminated Grussgott’s employment.
Grusgott sued, alleging that the school violated her rights under the Americans with Disabilities Act of 1990, a broad federal law designed to protect people from discrimination simply for having a disability. The school argued for dismissal of the lawsuit based on the ministerial exception. On May 30, 2017, a federal district court judge dismissed the lawsuit, finding that her teaching role had a religious dimension.
Grussgott appealed to a three- judge panel of the 7th U.S. Circuit Court of Appeals, which affirmed in its Feb. 13, 2018, decision in Grussgott v. Milwaukee Jewish Day School, Inc. The 7th Circuit panel relied on the U.S. Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C. (2012). In Hosanna-Tabor, the U.S. Supreme Court explained that “[b]oth Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.”
The question becomes what employees of religious institutions qualify as ministers or ministerial employees. The 7th Circuit drew four factors from Hosanna-Tabor: (1) the formal title of the employee; (2) the substance reflected in the employee’s title; (3) the teacher’s use of the title; and (4) the important religious functions the employee performs for the religious entity.
Applying these factors, the 7th Circuit found the factors split two-two. Gruggott’s job title and her use of the title did not support the application of the ministerial exception. She identified her title as “grade school teacher” and Grussgott never held herself out to be a religious teacher.
However, two other factors cut in favor of the religious school. The substance in her title and the religious functions she performed favored application of the ministerial exception. Teachers at the school had to follow the school’s religious curriculum and Grussgott performed “religious” functions at the school. She taught students about Jewish holidays and prayers. Grussgott contended that she taught these from a historical and cultural perspective rather than a religious perspective, but the 7th Circuit was not persuaded. The panel wrote that “it is sufficient that the school clearly intended for her role to be connected to the school’s Jewish mission.”
Importantly, the 7th Circuit explained that its application of the Hosanna-Tabor factors was based on a “totality of the circumstances” analysis, examining all the germane facts in a specific case.
The net result was that another employee at a religious institution lost her ability to claim protections under an anti-discrimination law. I have warned previously that the ministerial exception applied broadly can increase employee discrimination. The trend continues.