By Leslie C. Griffin, author of Law and Religion: Cases and Materials, and Ronald Turner, co-author of Employment Discrimination Law: Cases and Materials. Both authors are professors of constitutional law at the University of Houston Law Center.
The Supreme Court recently granted cert. in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an important employment case that implicates the Free Exercise Clause. Cheryl Perich was an elementary school teacher at Hosanna-Tabor Evangelical Lutheran School. Perich took a disability leave of absence from teaching after a diagnosis of narcolepsy. When her doctor cleared her to return to work, school officials refused to readmit her; without any medical evidence, they doubted her fitness to return to the classroom. Perich was fired after threatening to sue for disability discrimination, and filed a lawsuit for retaliation under the Americans with Disabilities Act.
In another case with a cert. petition before the Court, a different elementary school teacher, Madeline Weishuhn of St. Mary Catholic School, was fired after she reported a student’s allegations of sexual abuse to the police without notifying the school’s principal. Weishuhn sued for retaliatory termination under Michigan’s Whistleblowers Protection Act.
The legal issue is whether these two women and similar employees of religious organizations throughout the country will have their day in court. The full and fair enforcement of the employment laws is at stake in the Court’s ultimate decision.
The courts have denied the protection of the employment laws to religious employees for almost 40 years. The legal justification is the so-called “ministerial exception,” a court-crafted rule that bars the courts from resolving employment disputes involving “ministers.” The antidiscrimination statutes authorize lawsuits against religious employers and do not exempt them from liability. Instead of resolving on the merits statutory claims of retaliation; disability, age, race or gender discrimination; and equal pay violations, the courts dismiss the cases on the grounds that the First Amendment does not even allow them to hear the cases because they may not intrude upon religion.