In the U.S. there are federal and state laws against employment discrimination. Businesses and not-for-profit organizations can’t hire or fire people because of their race, gender, ethnicity, religion, and disability.

That is, unless the organization is religious. When it comes to employment, religious groups have total control over who they hire, fire, and discipline.

Last week, the Sixth Circuit rejected a lawsuit brought by a former employee of InterVarsity Christian Fellowship. The details of the lawsuit are unimportant — completely unimportant. No matter what the claims made by the employee, the Court ruled that employees cannot sue a religious organization for violations of civil rights laws.

The InterVarsity decision expands/clarifies the interpretation of the Supreme Court’s unanimous decision in Hosanna-Tabor v. EEOC in 2012. The Hosanna-Tabor decision made it clear that religious organizations had broad powers to hire and fire those it considered to be “ministers.”

Here are the important questions raised and answered by the Sixth Circuit last week:

Does the religious group need to be a church?

No. There are many organizations with a religious mission that are not churches per se. Hospitals, para-church ministries, schools, and other groups with religious missions can claim the ministerial exception.

What is a “minister” under the law?

For lack of a better term, the court uses the “duck test.” Does it look, walk, and quack like a duck? If so, it’s a duck. The court can ask

• What is the title? There are many titles that are clearly equivalent to “minister”: pastor, rabbi, bishop, priest, imam, and priest. The court can also look at whether the title has a religious meaning. The title of “accountant” is not a religious title. In the case of the InterVarsity case, the employee’s title was “spiritual director,” which is religious in nature.
• What does the title mean in the organization? Some employees may have secular titles such as “teacher,” but the training, authorization, and duties may be religious.
• Does the employee the employee perform religious functions in the organization?

Can a religious group waive its right to the ministerial exception?

No. A group may tell an employee that they will not discriminate based on gender, for example, but that same group can still do so. The Sixth Circuit stated clearly “The ministerial exception is…a limitation that can never be waived.”

Does the ministerial exception apply even to state laws that do not include such exceptions?

Yes. Michigan has a strong anti-discrimination law that does not give religious organizations exceptions. The court ruled that the Supreme Court’s decision in Hossana-Tabor applies to state laws, too.

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