August 4, 2022
by John Kaempf

Under the “ministerial exception,” churches and religious schools are not liable for employment discrimination for not hiring LGBTQ persons if doing so is contrary to their sincere religious beliefs.

This year, in the case of Starkey Roman Catholic Archdiocese of Indianapolis, Inc., a federal appeals court—the Seventh Circuit in Indiana—affirmed the dismissal of an employment discrimination lawsuit brought by Ms. Lynn Starkey. She is a former guidance counselor at Roncalli High School, a Roman Catholic high school in Indianapolis. She sued after losing her job for entering a same-sex marriage.

The dismissal of her lawsuit was based on the “ministerial exception” to employment discrimination claims. It prevents courts from interfering with hiring and firing decisions of religious employers pursuant to the First Amendment right to freely exercise religion.

The appeals court held Ms. Starkey was a “minister” because “she was entrusted with communicating the Catholic faith to the school’s students and guiding the school’s religious mission.”

The court also held that “because Ms. Starkey was a minister,” the trial court “correctly determined that the ministerial exception bars all her claims, federal and state.”

The Starkey decision is consistent with two United States Supreme Court cases decided in the last decade.

First, in 2012, the Supreme Court held that the “ministerial exception” barred an employment discrimination lawsuit brought by a math, language arts, social studies, science, gym, art, and music teacher at a religious school who had a physical disability (narcolepsy). The case is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

Second, in 2019, the Supreme Court, in the case of Our Lady of Guadalupe School v. Morrissey- Berru, held that the “ministerial exception” barred an age discrimination claim by a teacher at a Roman Catholic elementary school.

So, the lesson from these legal decisions for churches and religious schools, if they want to take this position, is to state in employment contracts that the employee is deemed a “minister” for purposes of the “ministerial exception.”

And employment contracts and employee handbooks should state that the school’s or church’s mission is to develop and promote a faith community; a faith commitment in religious instruction; and a personal modeling of the faith by employees; and explain that the employee’s performance will be reviewed in part on those bases.