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Supreme Court Blocks Teachers from Suing Church Schools for Job Discrimination

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Might California’s FEHA offer a workaround?

Los Angeles, CAThe bad news for lay teachers is that on July 8, in Our Lady of Guadalupe School v. Morrissey-Berru, the U.S. Supreme Court severely limited the rights of Catholic school elementary teachers to sue for employment discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA). Justice Sotomayor captured the stunned reaction in her dissent: “That cannot be right.”

The good news for California teachers is that job discrimination lawsuits may not be entirely foreclosed under California employee labor law. To be honest, however, it’s a proverbial “Hail Mary” pass.

Our Lady of Guadalupe School v. Morrissey-Berru

The Supreme Court’s opinion actually covers two consolidated cases, both of which involved lay teachers at Catholic elementary schools in the Los Angeles archdiocese. Both were terminated for what they believed to be discriminatory reasons.

Agnes Morrissey-Berru, who was employed at Our Lady of Guadalupe School, taught all subjects including religion. In 2014, the school moved her from a full-time to a part-time position. The next year, the school declined to renew her contract. She filed a lawsuit under ADEA, claiming that the school had demoted her and had failed to renew her contract in order to replace her with a younger teacher.  

Kristen Biel worked for about a year and a half as a lay teacher at St. James School. St. James declined to renew her contract after one year. After filing charges with the EEOC, she brought a lawsuit, claiming that she was discharged because she requested a leave of absence for breast cancer treatment. Ms. Biel died in 2019.

The Court relied heavily on the fact that both teachers taught religion as well as all other subjects to their students. Both, it should be noted, were lay people, and Ms. Morrisey-Berru does not identify as a practicing Catholic. Nonetheless, the Court concluded that both teachers were covered by the “ministerial exception,” outlined in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That exception holds that the First Amendment bars a court from hearing employment discrimination claims brought by certain employees against religious institutions.

The dissenting opinion cautions that the ministerial exception had previously been limited to spiritual leaders within a congregation, and sharply criticizes the holding as an unwarranted expansion. It notes that “the Court’s apparent deference here threatens to make nearly anyone whom the schools might hire ‘ministers’ unprotected from discrimination in the hiring process. That cannot be right….Today’s decision thus invites the ‘potential for abuse’ against which circuit courts have long warned.”  

The decision appears to strip employment protections from many of the 149,000 lay teachers at religious elementary schools who teach religion in addition to other subjects. Looking for a silver lining, some commentators have suggested that the decision might not limit the employment rights of those, like high school physics teachers, who play no role in teaching religion.

State laws may be more protective of employee rights than federal law, and California law is often thought of as being very protective of workers. Is there some remedy for lay teachers at religious schools under California employee labor law?

The problem with the Fair Employment and Housing Act

California’s Fair Employment and Housing Act presents puzzles of its own, however. FEHA protects California employees from discrimination, retaliation and harassment in employment. The protections cover workers from adverse action based on race, gender, and a variety of other characteristics including being over the age of 40 and requesting leave based on a serious health condition. However, the law contains an exemption for religious organizations. This insulates them for all forms of FEHA liability.

Effective January 1, 2002, the California legislature created an exemption to the exemption that effectively pulls religious non-profit educational institutions back into FEHA coverage if they are:
  • organized under the California Corporation Code as non-profit public benefit corporations;
  • formed by, or affiliated with a particular religion; and
  • operating an educational institution as its sole or primary activity.
This suggests that religious schools that meet those three criteria are covered by the same rules as all other California employers.

The most frequently cited case that explores the meaning of this carve-out, Henry v. Red Hill Evangelical Lutheran Church found that the plaintiff employee was not protected from discriminatory termination based on marital status. court focused on the fact that the school was part of the church’s ministry, did not exist as a separate legal entity, was on church property and was adjacent to the church.

So, where exactly are lay elementary school teachers like Agnes Morrissey-Berru and Kristin Biel, when it comes to legal protections from employment discrimination?

Cracks in the wall

The dust is still settling with respect to federal law coverage. And the situation is not a lot clearer under the FEHA, but several ideas have emerged.

First, the Henry decision suggests that the less closely-tied a school is to a religious institution, the more likely it is that teachers will be protected from job discrimination under California labor and employment law.

Second, teachers at schools that are structured as non-profit public benefit corporations appear to be covered by FEHA’s non-discrimination requirements, even if those schools are closely affiliated with a religious organization and the teachers teach religion. This seems to be a corollary to the rule above since those schools seems to operate as more independent entities.

Third, lay teachers should check the school’s employee handbook very carefully. If the handbook or contains language committing the schools to enforcing federal anti-discrimination laws, the teacher may have what is known as a “waiver and estoppel” argument. Briefly, this argument is that:
  • the school waived its right to benefit under the FEHA exception;
  • the employee relied to her detriment on that promise; and
  • since the school has now broken its promise, the teacher has the right to sue.
The same might be true if administrators are trained in non-discriminatory management practices that mirror the federal guidelines.

This is a tough argument to make. All of the exceptions, to be honest, seem like long shots. Nonetheless, the great deference shown by the Supreme Court to all things religious and the California legislature’s apparent willingness to embrace much of the same sentiment has created an anomalous situation. 

Two groups of lay workers, who perform essentially the same tasks – but one for a secular employer and the other for a religious organization – have vastly different legal rights. This, to echo Associate Justice Sotomayor again, is inherently unjust.


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