Religious Institutions Update: September 2019

In Biel v. St. James Sch., 926 F. 3d 1238 (9th Cir. 2019), the petition for rehearing and the petition for rehearing en banc was denied, subject to dissent by Judges Ryan D. Nelson, Jay Bybee, Consuelo M. Callahan, Carlos Bea, Milan D. Smith Jr., Sandra Ikuta, Mark J. Bennett, Bridget Bade and Daniel P. Collins. As previously reported, the panel voted 2-1 to reverse summary judgment granted in favor of the defendant against a former teacher who alleged violation of the Americans with Disabilities Act (ADA) against a Catholic elementary school when it did not renew her contract for the next academic year. The court determined that the ministerial exception doctrine did not prevent her claim. The dissent to the denial of the petition for rehearing, taking its cue from a coalition of religiously diverse organizations and law professors as amici, argued that the panel majority's approach "trivializes the significant religious function performed by Catholic school teachers." The dissent argued that by its own terms, the Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171 (2012), cautioned against applying its four "considerations" pertinent to the ministerial exception doctrine as a test. U.S. Supreme Court Justice Samuel Alito, joined by Justice Elena Kagan, called on courts to focus on "the function performed by persons who work for religious bodies." Id. at 198. (Alito, J. concurring). The dissent concluded, "Absent further review of Biel, the implications are stark: Catholic schools in this circuit now have less control over employing its elementary school teachers of religion than in any other area of the country," and "[n]ow thousands of Catholic schools in the West have less religious freedom than their Lutheran counterparts nationally."

In Sterlinski v. Catholic Bishop of Chicago, 2019 WL 3729495 (7th Cir. Aug. 8, 2019), the court reflected on the outcome and reasoning of Biel when deciding to affirm grant of summary judgment for the defendant against a church organist who claimed national origin discrimination and retaliation under Title VII. The organist asked the court to follow Biel in deciding whether his role was sufficiently like that of a priest to be called part of the ministry and in "essentially disregarding what Biel's employer (a Roman Catholic school) thought about its own organization and operations." The Seventh Circuit sided with the dissent in Biel, but proposed a different manner of drawing the line between judicial abnegation and "independent judicial resolution of ecclesiastical issues (which Biel embraced)." According to the court, "The answer lies in separating pretextual justifications from honest ones." Once a defendant raises a justification for an adverse employment action, a Title VII plaintiff can attempt to show that it is pretextual. The defense bears the burden of articulating the justification, but the plaintiff bears the burden of showing that the justification is a pretext. The church's assertion that organ playing served important religious purposes was not pretextual. The U.S. Conference of Catholic Bishops had issued a document explaining how music was important to religious services, including organ playing, long before the plaintiff was terminated. The court concluded, "[u]nder the rationale of Hosanna-Tabor" the plaintiff's "discharge is therefore outside the scope of Title VII."

In Telescope Media Grp. v. Lucero, No. 17-3352, 2019 WL 3979621 (8th Cir. Aug. 23, 2019), the court...