On Oct. 5, 2011, the Supreme Court will hear oral arguments in a case that could help determine how much latitude religious organizations have in making employment decisions about clergy and others who perform religious duties.

The case centers on a legal doctrine known as the “ministerial exception.” The Supreme Court has never expressly ruled on the doctrine, but judges in lower federal courts have used it to exempt religious organizations from anti-discrimination laws and other statutes that regulate how employers treat their workers.

These decisions have emphasized that courts should not intervene in employment matters when doing so would require them to evaluate the qualifications or performance of employees who carry out religious functions, such as preaching or leading worship. In Hosanna-Tabor v. EEOC, the Supreme Court will decide whether a teacher who devoted part of her day to religious duties should be considered a ministerial employee in a wrongful dismissal suit. More importantly, Hosanna-Tabor offers the court an opportunity to shrink or expand the reach of the ministerial exception, thereby putting its stamp on an important doctrine that has been applied in different ways by lower federal and state courts.

How did this case arise, and how did it reach the Supreme Court?
The Hosanna-Tabor grade school in Redford, Mich., was operated by a congregation affiliated with the Lutheran Church-Missouri Synod (LCMS). (The congregation closed the school in 2009.) Like other schools run by the LCMS, Hosanna-Tabor employed two types of teachers: lay teachers, who were hired by school administrators to serve one-year, renewable contracts; and “called” teachers, who were approved by the congregation and hired on an open-ended basis.

The notion of being “called” has deep roots in Christianity. It refers to the belief that certain individuals are chosen by the church to perform religiously important tasks or roles. In the Lutheran Church-Missouri Synod, teachers can be called only after they meet specific requirements, notably the completion of significant theological and other coursework. Even then, someone can be called to teach only by a vote of the congregation for whom he or she will work. Once a teacher is called to his or her position, he or she is deemed to be a “commissioned minister,” a position without the preaching or sacramental duties of ordained ministers but with important religious functions.

Teacher Cheryl Perich received her call from the Hosanna-Tabor congregation in 2000. Perich taught her fourth-grade students a range of secular subjects, including math, social studies and music. She also taught religion four days a week, regularly led her students in prayer and in a daily devotional, and planned and led worship services – duties also assigned to lay or contract teachers at the school.

In June 2004, Perich was hospitalized for what was eventually diagnosed as narcolepsy, a chronic sleep disorder that can make people fall asleep at inappropriate times. During the first months of her illness, Perich was put on disability leave, given full pay and benefits, and told that she would have a job when she returned. In December 2004, Perich’s doctor informed her that she would be able to return to work in two to three months, information that Perich passed along to school administrators. However, around this time, the school hired another instructor to teach Perich’s class for the remainder of the academic year. In addition, school officials expressed concern that Perich would not be able to fulfill her duties if she returned, a judgment ratified first by the school’s board and then by the Hosanna-Tabor congregation.

On Jan. 30, 2005, the school, citing concerns about her health, asked Perich to voluntarily resign her call. Perich refused, reiterated that she was ready to report back to work and even showed up for work one day – without the school’s permission.

During this time, Perich also said that if the dispute could not be resolved, she would take legal action under the Americans with Disabilities Act of 1990 (ADA), which prohibits all but the smallest employers from discriminating against people with disabilities. The act also prohibits employers from retaliating against employees who attempt to assert their rights under the act.

On April 10, 2005, the Hosanna-Tabor congregation voted to rescind Perich’s call, citing a number of factors, including continuing concerns about her health and ability to function as a teacher. The church also said it wanted to be fair to the teacher who had been hired to replace her and who would have to be let go if Perich resumed her duties. In addition, the congregation claimed that it was troubled by Perich’s threats to sue, especially given that the church has long taught that Christians should resolve disputes internally rather than in the courts. (Perich would later say that she was never informed about the church’s internal dispute-resolution process.)

On May 15, 2005, Perich filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that Hosanna-Tabor’s actions violated the Americans with Disabilities Act. The EEOC and Perich then filed suit in federal district court alleging that the church had retaliated against Perich – in violation of the ADA – by rescinding her call after it learned that she had a disability and was contemplating legal action.

On Oct. 23, 2008, the district court decided against Perich, ruling that since she has been called as a commissioned minister, her firing was subject to the ministerial exception and thus was not within the court’s purview. On March 2, 2010, this decision was overturned by the 6th U.S. Circuit Court of Appeals, which ruled that Perich was not covered by the ministerial exception because most of her duties – teaching nonreligious subjects – were secular. The church then appealed the ruling to the Supreme Court, which on March 28, 2011, agreed to hear the case.