Ministerial exception scuttles school principal's Title VII lawsuit

Not all employment discrimination can be challenged in court. If the plaintiff is a "minister" as defined by the Supreme Court, she cannot bring her lawsuit. The reason for this is a doctrine called the ministerial exception, endorsed by the Supreme Court in 2012. Last week, the Second Circuit applied that exception for the first time in holding that the principal of a private religious school cannot proceed with her gender discrimination lawsuit.

The case is Fratello v. Archdiocese, decided on July 14. I wrote an amicus brief in this case for the National Employment Lawyers Association. Fratello worked for St. Anthony's School in Nanuet, New York. After she was fired, plaintiff sued in the Southern District of New York, alleging gender discrimination. Citing the ministerial exception, the district court dismissed the case on summary judgment, and the Second Circuit (Sack, Lohier and Woods [D.J.]) affirms.

Judge Sack provides a comprehensive overview of the ministerial exception, drawing from Supreme Court and other authorities in noting that the values promoted by Title VII of the Civil Rights Act of 1964 (prohibiting gender and other forms of employment discrimination) clash with the Free Exercise and Establishment Clauses of the First Amendment, which protect the free exercise of religion and prohibit government regulation of religion. What it all means is that "ministers" as defined by the Supreme Court cannot bring these lawsuits because that would requires courts to tell religious institutions whom to employ as ministers. Some plaintiffs will end up on the losing end of these cases even if they are not formal "ministers." As the Supreme Court defined the term in Hosanna-Tabor v. EEOC, 565 U.S. 171 (2012), you can be a "minister" if the totality of the circumstances shows you took on certain religious duties such that a lawsuit would have the effect of telling religious institutions who can spread the gospel. This doctrine is therefore not limited to actual ministers.

As principal, Fratello's formal title was not religious in nature. But that is not enough for her to get around the ministerial exception. Other factors help the defendants. The school's principal must be a practicing Catholic, committed to the teachings of the Church, and she must, among other things, exercise leadership to ensure a thriving Catholic school community. The Circuit court also says plaintiff understood that she would be perceived as a religious leader, and she performed important religious functions in that role. The Court says:

We think the record establishes beyond doubt that, as principal, Fratello “convey[ed]” the School's Roman Catholic “message and carr[ied] out its mission,” id., insofar as she: (1) consistently managed, evaluated, and worked closely with teachers to execute the School's religious education mission; (2) led daily prayers for students over the loudspeaker, and other prayers at various ceremonies for faculty and students; (3) supervised and approved the selection of hymns, decorations, and lay persons chosen to recite prayer at annual special Masses; (4) encouraged and supervised teachers' integration of Catholic saints and religious values in their lessons and classrooms; (5) kept families connected to their students' religious and spiritual development through the newsletter; and (6) delivered commencement speeches and yearbook messages that were religious in nature.Not only did Fratello perform all these functions, she was also evaluated on the quality of that performance.

In the end, no lawsuit for plaintiff. As the Second Circuit sees it, her job duties were too religious in nature to get around the ministerial exception. Although plaintiff was not a formal minister but instead a school principal, under Supreme Court authority, she was a "minister" under Hosanna-Tabor.