Calif. Court Decision Reveals Challenges for Religious Employers Relying on the 'Ministerial Exception'

Faith-based employers often invoke the so-called "ministerial exception," a judge-made doctrine arising from the First Amendment, to defeat employment discrimination claims early in litigation. But asserting the defense isn't always smooth sailing, as a recent decision by a California appeals court shows.

The case involves an age discrimination claim brought under California's Fair Employment and Housing Act (FEHA) by a former employee at St. Cecilia Catholic School after she was discharged from her dual roles as an office administrator and art teacher. The school's lawyers didn't originally argue the plaintiff was covered by the ministerial exception (which generally applies to employees who perform religious duties and play a vital role in carrying out the mission of a religious institution), but they changed course after the Supreme Court's 2020 ministerial exception decision, Our Lady of Guadalupe, ultimately convincing the trial court to dismiss the case. The appellate court reversed, ruling that a jury should decide the "fact" question of whether the ministerial exception applies. 

The decision reflects a recent trend among courts to treat the applicability of the ministerial exception as a fact issue (rather than a legal question) that cannot be resolved before burdensome discovery or even trial. Religious employers can respond to this trend by taking proactive steps, with the assistance of experienced legal counsel, to develop strong evidentiary support for the application of the ministerial exception--the kind of support that can be deployed easily and early in the event of litigation.

The case also raises questions about the strategy employed by the school and its lawyers. Why did they wait so long to raise the ministerial exception as a defense? More concerning: Why have they apparently not argued that religious employers like St. Cecilia are categorically exempt from FEHA as a matter of the statutory text itself? The constitutional and statutory protections for religious employers are of limited value if religious organizations and their attorneys are not equipped to wield them promptly and properly in the event of a legal dispute.