Introduction

One could argue that it is easier for a camel to pass through the eye of a needle than for a faculty member of a religious school to successfully prosecute an employment discrimination claim. Why? In the words of James Madison, “the scrupulous policy of the Constitution” is to guard against “political interference with religious affairs.”[1] Stated in more contemporary terms, the “ministerial exception” precludes courts from adjudicating claims brought against religious institutions by “key employees.”

The “ministerial exception” is a doctrine derived from the First and Fourteenth Amendments to the Constitution. The amendments elevate the interests of “religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission” above society’s interests in the enforcement of employment discrimination laws.[2]

The Supreme Court has long protected the right of churches and other religious institutions to decide matters of faith, doctrine and internal governance.[3] The modern “ministerial exception” recognizes that the “power to appoint and remove ministers and other church officials is the power to control the church.”[4] Accordingly, the First and Fourteenth Amendments dictate that courts recognize the autonomy of religious institutions to select individuals who will play key roles in advancing the institution’s religious mission.

In Pulsifer v. Westshore Christian Academy,[5] the 6th Circuit Court of Appeals examined whether Aaron Pulsifer, a dean of students and assistant principal for a private Christian elementary school in Muskegon Heights, Michigan, could maintain employment discrimination claims against his employer.[6] Pulsifer sued Westshore Christian Academy (WCA) under a variety of state and federal employment laws. The district court granted summary judgment to WCA, holding that the federal Constitution “precludes review of the Academy’s employment decisions vis-à-vis Pulsifer because he performed important religious functions at the school.”[7] In short, the “ministerial exception” doomed Pulsifer’s claims, and Pulsifer appealed.

Case Summary

According to its founder, WCA was established to “bring affordable Christian education to inner city youth in the Muskegon area,” and WCA viewed its educational role as central to the religious development of students.[8] WCA terminated Pulsifer’s employment in August of 2022.[9]  Pulsifer, an African American male, claimed that his employment was terminated by WCA in retaliation for his having complained about discriminatory pay practices and for his having reported negative information about WCA’s primary financial supporter.[10] Moreover, Pulsifer argued that the “ministerial exception” did not apply to him because his role at the school required many routine secular administrative tasks, e.g., scheduling, student discipline and record keeping.[11]  WCA argued that the “ministerial exception” did apply to Pulsifer’s role because he performed a number of vital religious functions.

To answer the question of whether Pulsifer fell within the “ministerial exception,” the court looked to two Supreme Court cases for guidance — Hosanna-Tabor[12] and Our Lady of Guadalupe[13]. These cases provide several rules that are important to the “ministerial exception” analysis. The first rule is that the “ministerial exception” is not limited to churches.[14] Schools and other institutions whose missions involve religious education are covered because of their obvious religious characteristics. Second, the exception applies to more than “ministers,” or those with similar titles, and extends to other employees “who play an important role in advancing the institution’s religious mission.”[15] Third, while an employee’s title and training may be relevant, “[w]hat matters, at bottom, is what an employee does.”[16] In short, an employee’s inclusion within the exception turns on whether he or she is involved in religious functions, such as leading worship, teaching the faith, or providing pastoral care and guidance.

Applying these rules to Pulsifer’s case, the court noted that the school’s mission statement articulated the goal of helping students “grow in their relationship with Christ, become life-long learners, to actively serve their community, and pursue Christian leaderships.”[17] Thus, there was no dispute that WCA was the type of religious entity that could avail itself of the “ministerial exception.”

In his role as Dean of Students/Assistant Principal, Pulsifer was expected to guide the students’ spiritual formation and be a “spiritual leader.”[18] In addition, Pulsifer led morning devotions for staff meetings and school board meetings, and he was in charge of two WCA after-school religious youth programs, which were public-facing efforts designed to convey the school’s religious message.[19] Finally, Pulsifer played a critical role in conducting communal prayer with board members and staff. In short, these vital religious functions placed Pulsifer’s position within the “ministerial exception.”[20]

Finally, the court found Pulsifer’s argument — that he performed duties typical of secular administrators — to be unpersuasive.[21] Like the elementary school teachers in Our Lady of Guadalupe, who fell within the ministerial exception despite the fact that they performed many of the same functions as secular teachers, Pulsifer’s secular activities did not determine whether his role fell within the “ministerial exception.” Here, because Pulsifer performed important religious functions, the “ministerial exception” did apply, and the 6th Circuit affirmed the district court’s order granting summary judgment.[22] 

Harder Questions

The application of the “ministerial exception” to Pulsifer, who served as the dean of students at a private Christian school, simply was not much of a stretch for the court. However, one could imagine a number of scenarios that would present more difficult calls. For example, would a football coach at a Christian school whose only religious activity was leading the team in the rote recitation of the “Lord’s Prayer” qualify for the exemption? Do employees who are engaged exclusively in the technical side of worship production (e.g., lights, sound, slides, instruments, cameras, Facebook feeds) play key roles in advancing the mission and message of a religious institution? Would it matter to the “ministerial exception” analysis if the claimant was known to not hold any religious beliefs?

Tips for Practitioners

Pulsifer underscores how important it can be for a religious institution to formalize a mission statement that makes the religious characteristics of the enterprise obvious. In addition, job descriptions and offer letters that document religious responsibilities can be helpful in establishing the “ministerial exception” as a defense to employment claims.

Jason Ensley is a past chair of the TBA’s Labor & Employment Section Executive Council. He is employed as labor and employment counsel for a global transportation and logistics company.  He serves on the board of elders at his church and has always been fascinated with the “ministerial exception.”