No Exception for Ultra Vires Discrimination

The Ministerial Exception (“the Exception”) is an affirmative defense that religious institutions may use to obtain dismissal of discrimination claims brought by current and former ministerial employees.The Exception rests on the seemingly straightforward premise that churches and other religious institutions must be free to select and remove their own ministers without interference from secular laws. It applies with equal force to any kind of discrimination; extends to harassment and retaliation; and is not confined to forms of alleged discrimination motivated by religious belief. The Supreme Court has only addressed the Exception twice. First, in 2012, through Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission (“Hosanna-Tabor”), the Court officially recognized the doctrine, which the circuit courts developed. Second, in Our Lady of Guadalupe School v. Morrissey-Berru (“Our Lady of Guadalupe”), the Court expanded its assessment of which categories of employees at religious institutions qualify as ministers for purposes of the Exception. Accordingly, in the wake of Our Lady of Guadalupe, much of the recent scholarship on the Exception has centered on who exactly is a minister. Taking a deeper look at the Exception’s rationale and praxis, this article examines the underdeveloped yet critical parallel questions of who exactly the church is and what work the Exception does when it protects the discriminatory behavior of managers whose discriminatory conduct contravenes the church’s own rules. The article will first provide a brief overview of how the Exception works; case studies and discussion will follow.