Last week the Supreme Court decided that two teachers working at Catholic schools could not sue their employer for discrimination because of the “ministerial exception” to federal workplace discrimination laws.

The Supreme Court clarified (or broadened) what kind of religious school employees are excluded from anti-discrimination laws. The Supreme Court held that the First Amendment’s Religion clause precluded courts from second guessing the reasons for firing ministerial employees. The court held there was no formula for who was a ministerial employee. The court stated that depended on the extent an employee conveyed the message of the church and carried its mission.

Arguably, the Morrissey-Berru decision and the Hosanna-Tabor decision which it relied on only apply to religious school teachers. Before these decisions, lower courts held that most religious school teachers were covered under federal civil rights laws. (See the dissent from Justice Sotomayor starting at page 37 of the opinion.)

Who else will be excluded from civil rights laws?

So, if churches have broader latitude to discriminate against employees, how broad is that latitude. Would this apply to nurses and nurses aides at hospitals affiliated with a church? Nurses and nurse’s aides are often injured at work. Because of this fact, they often need to invoke the Americans with Disabilities Act (ADA) and Family Medical Leave Act. (FMLA) Would a religious hospital argue the ministerial exception to argue the ADA and FMLA did not apply to a nurse or nurse’s aide hurt at work?

So far, at least in Nebraska and the Eighth Circuit I haven’t seen any cases where that happened. But Catholic Health Initiatives (CHI), a major health care employer locally, has some expressly religious statements in its mission statement. Would that language be enough to argue ministerial exception? Maybe not, but religious freedom advocates have advised employers about steps they can take to invoke the ministerial exception defense.

Another commonality between Morrisey-Berru and Hosanna-Tabor

I believe that major church-affiliated health care employers will continue to follow the ADA and FMLA. Major employers and their HR departments tend to be risk-averse. But in litigated cases, I believe outside counsel would push ministerial exception arguments.

Both the Hosanna-Tabor and Morrisey-Berru cases involved ADA claims. This fact fails to surprise me and I doubt that it’s entirely coincidental. From a practical perspective, ADA claims tend to be better cases for employees than other civil rights cases. I believe this is so because employers are more likely to botch ADA/FMLA compliance than other forms anti-discrimination laws. Arguing the ministerial exception is one way to defeat an otherwise valid ADA case.

A return to the pre-ADAAA bad old days?

But when I started practicing in 2005, ADA cases were harder to win. What changed was the ADA Amendments Act of 2008 which broadened the definition of disability. That change made ADA cases easier to prove.

Those changes to the ADA also made it easier for workers to heal from work injuries and return to work after injury. Pre-2008, if an injured worker was not ready to return to work after their 12 weeks of FMLA leave they would likely be fired. This threat often forced injured workers to attempt to return to work before they were ready. In tandem with “100 percent healed” policies, injured workers would also work with their doctors to downplay or eliminate work restrictions. An employee who returned to work with “no restrictions” before ready risked injury and also compromised the value of their workers’ compensation case.

But if courts extend Hosanna-Tabor and Morrisey-Berru to health care workers, the past is prologue for those workers. If courts extend these cases to hold the FMLA does not apply to health care workers, the future may be worse than the pre-ADAAA past.

Common law employment law claims?

Left unaddressed by the Supreme Court is whether religious employers can claim exemption from common law employment law claims. For example, Nebraska law makes it unlawful to retaliate against a worker claiming workers compensation. The Nebraska Workers Compensation Act covers churches and church employees. Arguably it would defeat the purpose of that law to allow churches or religious employers to retaliate against those employees.

On the flip side, Supreme Court cases about employment law tend to persuade state court judges. In her dissent in Morrissey-Berru, Justice Sotomayor criticized the ministerial exception as judge-made law. But the law prohibiting employers from retaliating against employees who claim workers’ compensation is also judge-made. That fact may make judges in Nebraska more willing to create a ministerial exception in common law anti-retaliation claims.