Emory Law Journal


Rachel Barrick


Supported by statute and the Constitution, the ministerial exception bars employees who are deemed “ministers” from bringing discrimination claims against their religious employer. Religious employers—whether a religious association, corporation, educational institution, or society—are exempted from Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of religion. The ministerial exception is no longer limited to religious discrimination and has been expanded to apply in cases of gender, race, age, and disability discrimination. In 2012, the Supreme Court affirmed that a constitutional ministerial exception existed and was supported by the Free Exercise and Establishment Clauses of the First Amendment. The Court set forth a four-factor test by which an employee’s “ministerial status” was to be assessed: (1) whether the religious institution held the employee out as a minister; (2) whether the employee’s title reflected a certain degree of religious training; (3) whether the employee used that title and held herself out to be a minister; and (4) whether the employee’s duties reflected a role in conveying and carrying out the mission of the church. The Court declined to adopt a rigid formula, leaving lower courts to interpret for themselves how these factors should be applied. Thus, lower courts were not only inconsistent in their analyses of subsequent cases, but also demonstrated a tendency toward favoring the religious employer. In 2020, the Supreme Court again addressed the ministerial exception, emphasizing function as key and broadening the exception’s potential application. This Comment proposes a solution for the inconsistencies and ambiguities that have resulted from the Court’s four-factor test for classifying “ministers” who then fall within the “ministerial exception,” and thereby suggests that the Court’s most recent holding failed to properly contain the exception. First, the proposed solution requires a balance of function and title based upon a reasonable construction of the surrounding factual circumstances. Function should be given the greatest weight if satisfied, but factors relating to title should not be ignored. Second, the proposed solution requires an analysis into the religious importance of the employee and the circumstances proffered to support or refute that importance. The analysis must be conducted with an eye toward the purpose of the exception: avoiding government interference with employment decisions relating to those employees whose functions are essential to the employer’s religious mission.

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