The Ninth Circuit recently reaffirmed the broad scope of the judicially-created ministerial exemption by upholding a lower court’s decision in Behrend v. San Francisco Zen Center, Inc. dismissing a former employee’s disability discrimination case against the Zen Center. Title VII allows religious employers to discriminate on the basis of religion in their hiring decisions, but the ministerial exemption goes much further and allows religious employers to avoid the application of all anti-discrimination provisions to their decisions about the hiring, firing, compensation, and other terms and conditions of employment of their “ministers.” This exemption is grounded in the First Amendment’s command that the government must not interfere with the free exercise of religion, and thus insulates religious organizations from scrutiny of their employment decisions when it comes to their ministers. The issue in this case was whether Behrend was a minister. The courts concluded that he was, and that he therefore could not bring a claim against the Zen Center.

Alexander Behrend brought suit under the Americans with Disabilities Act (the “ADA”) against the San Francisco Zen Center, a Zen Buddhist religious organization. Behrend had served as a Work Practice Apprentice (“WPA”) for the Center, meaning he trained as a student of Zen Buddhism while also working as a staff member. His training consisted of taking classes and participating in meditations. His work practice—which itself is a religious activity for Buddhists—included cooking, washing dishes, and assisting with religious rituals like ringing bells and cleaning altars. After he was assigned to the Center’s maintenance crew in September 2018, Behrend submitted a request for reasonable accommodations under the ADA, on the grounds that the work exacerbated his post-traumatic stress disorder. Instead of granting Behrend accommodations, the Center terminated his participation in the WPA program.

Behrend sued for disability discrimination. But the Center moved to dispose of his case in full on summary judgment, and the district court granted the motion. The court reasoned that the First Amendment’s ministerial exception—which prohibits interference with religious entities’ employment decisions regarding its “ministers”—barred the suit. Behrend appealed to the Ninth Circuit Court of Appeals, arguing that he did not qualify as a “minister” under the First Amendment exception because “he performed mostly menial work and did not have a ‘key role in making internal church decisions and transmitting the faith to others.’” In other words, he essentially argued that “only teachers and leaders of the faith qualify for the [ministerial] exception.”

The Ninth Circuit affirmed dismissal of the case on First Amendment grounds, explaining that the ministerial exception is “a much broader rule” than Behrend had suggested. The court determined that the real question is not what the employee’s title or responsibilities may be but whether their role within a religious institution implicates the “fundamental purpose” of the ministerial exception: “to ensure ‘[t]he independence of religious institutions in matters of ‘faith[,] . . . doctrine,’’ and ‘church government.’” The court rejected Behrend’s argument that, in effect, he was a student and menial laborer performing non-religious tasks rather than a teacher or proselytizer. The court said an employee’s position in a hierarchy is not dispositive, and that the purpose of the ministerial exception is implicated even where an employee “perform[s] vital, but not necessarily hierarchical functions.” Because Behrend had played a “role in . . . carrying out [the Center’s] mission,’” the ministerial exception prohibited his claims. Critically, the court accepted the Supreme Court’s direction to defer to a religious organization’s characterization of the roles their employees play.

The Supreme Court cases involving the ministerial exception have focused on teachers in religious schools. Most recently, the Court held that Catholic school teachers who prayed with and taught religion to their students qualified as “ministers” for First Amendment purposes, Our Lady of Guadalupe Sch. V. Morrissey-Berru, 591 U.S. 732, 738–44 (2020), as did a Lutheran school teacher who spent only a small portion of her day teaching religion, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 190–91 (2012). In Behrend, however, the Ninth Circuit noted that these cases—though they involved teachers—did not suggest that the ministerial exception is circumscribed by the existence of a teaching role. Instead, it emphasized that there is no bright-line rule for the ministerial exception and that courts should consider “all the circumstances of [the] employment” to determine whether the individual’s job duties “reflect[] a role in conveying the Church’s message and carrying out its mission.” Hosanna-Tabor, 565 U.S. at 192; see also Our Lady, 591 U.S. at 750–51 (emphasizing the absence of a “rigid formula” for the exception and instead focusing on the “variety of factors” that help determine a ministerial status). This broad understanding of the application of the ministerial exemption has led to decisions in which courts deny the protection of anti-discrimination laws to school guidance counselors, Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., 41 F.4th 931 (7th Cir. 2022), church music directors and organists, EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795 (4th Cir. 2000), press agents who distribute church literature, Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003), part-time music teachers, Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999), and dieticians, Shaliehsabou v. Hebrew Home, 363 F.3d 299 (4th Cir. 2004).

While the Supreme Court has yet to weigh in on a case with facts similar to those in Behrend, the Ninth Circuit’s decision is consistent with the approach of many courts that accept expansive definitions of the religious tasks performed by employees of religious organizations. Nevertheless, the determination of whether an employee is a “minister” is a fact-intensive question depending on all the circumstances, and many employees of religious institutions still have rights to be protected from discrimination.