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Does a Parochial School Have a Constitutional Right to Fire a Teacher in Violation of the Americans with Disabilities Act?

by Professor Will Huhn on November 21, 2010

in Constitutional Law,employment law,Establishment Clause,Freedom of Religion,Wilson Huhn

     In 2005 the Hosannah-Tabor Evangelical Lutheran Church and School fired Cheryl Perich, a teacher, because she had narcolepsy.  Does the school have a constitutional right to do this even if the school's action violates the Americans with Disabilities Act?

     The First Amendment to the Constitution provides that

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ….

     The Americans with Disabilities Act prohibits employers from discriminating against employees on the basis of disability.  42 U.S.C. § 12112(a).  

     Cheryl Perich was a teacher at the Hosannah-Tabor Evangelical Lutheran Church and School in .  In 2004 Perich developed narolepsy and was on disability leave for the first five months of the 2004-2005 school year.  When she attempted to return to duty in February, 2005, the school terminated her employment.   She sued the school for violation of the Americans with Disabilities Act.  The school claims that the Free Exercise Clause of the Constitution grants it a constitutional right to discriminate on the basis of disability.

     The Americans with Disabilities Act, like other civil rights laws, expressly provides that religious institutions are permitted to discriminate against their employees on the basis of religion.  That exemption is contained in 42 U.S.C. § 12113(d), which provides:

(1) In general

This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

(2) Religious tenets requirement

Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

The foregoing statutory exemption is necessary to protect the organization in its right to the Free Exercise of Religion. 

     The courts have also recognized another exemption for religious organizations as well, an unwritten rule called the "ministerial exception."  This rule essentially provides  that "ministerial employees" are not covered by employment discrimination laws – that religious organizations may discriminate against employees who are essentially acting as members of the clergy for any reason, including the employee's race, gender, national origin, sexual orientation, or disability.  The reason for the "ministerial exception" is to prevent the government from interfering with the governance of religious institutions as well as the beliefs (however discriminatory) those institutions may hold.  The "ministerial exception" is based not only upon the Free Exercise of Religion, but also upon Freedom of Speech, Freedom of Association, and the Separation of Church and State.

   On March 9, 2010 the Sixth Circuit Court of Appeals issued its decision in this case in a decision entitled EEOC v. Perich.  The court found that the statutory exemption contained in § 12113(d) did not apply because Perich was not fired for violating any of the tenets of the church.  It also found that the "ministerial exception" did not apply because Perich was not a "ministerial employee."  The court said:

the overwhelming majority of courts that have considered the issue have held that parochial school teachers such as Perich, who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception.

By contrast, when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.

    The court found that, under this standard, Perich was not "primarily" teaching religion or otherwise acting as a "ministerial employee."  The court found the following facts with respect to Perich's duties at the school:

The district court's factual determinations concerning Perich's primary duties throughout her work day were not clearly erroneous. The record supports the finding that Perich's employment duties were identical when she was a contract teacher and a called teacher and that she taught math, language arts, social studies, science, gym, art, and music using secular textbooks. Furthermore, the record indicates that Perich taught a religion class four days per week for thirty minutes and that she attended a chapel service with her class once a week for thirty minutes. Perich also led each class in prayer three times a day for a total of approximately five or six minutes. The record also indicates that Perich seldom introduced religion during secular discussions. Approximately twice a year, Perich led the chapel service in rotation with other teachers. However, teachers leading chapel or teaching religion were not required to be called or even Lutheran, and, in fact, at least one teacher was not. In all, the record supports the district court's finding that activities devoted to religion consumed approximately forty-five minutes of the seven hour school day.

     The Court remanded this case to the District Court so that Perich's lawsuit could go forward.  On October 22, the school filed a motion requesting the United States Supreme Court to review this case.

     In a post entitled Supreme Court Needs to Review Religious Employment Case Roberta Combs of Christian Coalition of America contends that the decision of the Sixth Circuit should be overturned by the Supreme Court.  She concludes:

This is a clear-cut constitutional case regarding First Amendment rights for religious institutions. The attack on people of faith in America needs to end ….

     In her post Combs does not mention that Perich was fired, not for reasons based upon religion, but because of her disability.  It seems to me that the decision of the Sixth Circuit in the Perich case is not an "attack on people of faith" but rather a defense of people with disabilities.

     Ryan Bonina of Roetzel & Andress published a thoughtful post about this case entitled Religious School Teacher Does Not Qualify for âMinisterial Exceptionâ Under the ADA at the Labor and Employment Blog on March 11, 2010.  She advised employers:

This decision serves as a reminder to employers to thoughtfully and carefully analyze any decision to rely upon exceptions to statutes such as the ADA.  As demonstrated by this courtâs decision, these exceptions are often narrowly construed to protect employees.

     That seems like good advice for all employers, including both secular and religious organizations.

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law. Visit his website for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.

{ 3 comments }

larry d. November 21, 2010 at 4:07 pm

You are right in that religion seems to have nothing to do with the case. But what if this woman was an airline pilot? Would United Airlines have to keep her employed even if she had a tendency to fall asleep as her plane was landing? What if a surgeon lost both of his arms and decided to work with his feet?

Scott November 21, 2010 at 7:47 pm

As I read this post, I found myself wondering basically the same thing as Larry. Surely the ADA includes some provision for cases where the disability prevents the employee carrying out the functions of the job. I assume there's a reason they went for the First Amendment defense– do you know what that reason is, perchance?

Professor Will Huhn November 29, 2010 at 9:20 am

Dear Larry and Scott,
Under the ADA employers may require that employees be able to perform the "essential functions" of a job. Here is a link to the EEOC website explaining employers' responsibility under the law: http://www.eeoc.gov/facts/ada17.html. I do not know whether the parochial school in this case defended on the ground that a teacher with narcolepsy controlled by medication was nevertheless unable to perform an essential function.

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