Employment Law for Ministries

Final Regulatory Push to Protect Workplace Religious Liberty

Federal agencies headed by appointees of the Trump Administration issued some last-minute guidance intended to preserve the rights of religious employers and believers. We summarize the latest guidance below.

EEOC Adopts Revised Compliance Manual

As we reported in our year-end recap last month, the EEOC in November proposed updates to its Compliance Manual on Religious Discrimination. On January 15, the EEOC adopted and finalized the proposed changes. Of particular interest is the revised Manual's relatively expansive view of the ministerial exception. The Manual was last revised in 2008, before the Supreme Court clarified the law regarding exemptions from certain employment laws rooted in the First Amendment that are available to religious employers. The Commissioners split over the new guidance 3-2, with the dissenters suggesting that the revisions will allow religious employers to infringe on workers' civil rights, particular LGBTQ rights.

Two days before the EEOC's vote approving the revised manual, the EEOC released the report of its Religious Discrimination Work Group, which the EEOC General Counsel organized and chaired. That report summarizes feedback from various organizations, primarily religious groups, on current religious discrimination concerns. It notes that some of these organizations had asked the EEOC to provide guidance on the scope of the ministerial exception.

DOL Opinion Letter

The Department of Labor’s Wage and Hour Division recently issued an Opinion Letter of particular interest to religious schools. Opinion Letter FLSA2021-2 (Jan. 8, 2021) involves the application of federal wage and hour law (the Fair Labor Standards Act, FLSA) to a private religious daycare/preschool. The guidance provided in the Letter includes these assumptions and facts:

• the school is a covered employer for purposes of the FLSA;
• the school is a not-for-profit institution;
• the school is affiliated with and under the direct control of a church; and
• all of the school’s teachers provide some religious instruction.

The specific question posed to the DOL was whether the teachers—assuming they are “ministers” under the ministerial exception—are exempt from the requirements of the FLSA. The Opinion Letter answers that question with the unconditional statement that “ministers are exempt from the FLSA’s wage-and-hour requirements.” It is true that that statement aligns with existing court rulings on that issue. But is likewise fair to say that the courts have not had the opportunity to address all of the potential permutations involved in applying the FLSA to ministers.

The Opinion Letter addressed the two factors relevant to the ministerial exception: whether the employer is a religious group, and whether the employee in question is a minister. As to the first issue, the DOL had “little trouble concluding” that the school is a religious organization, given that it is under the direct control of a church. On the second issue, the Opinion Letter tracks recent Supreme Court decisions holding that the determination of "minister" status must be based on the actual function of the employee's job. The Letter highlights the significance of the employer’s own view of whether its teachers are ministers, commenting that “the church here is only one of countless groups of believers that has determined that teachers … are part of their ministry.” The weight to be given to the school’s own view whether its teachers “minister” to students has been a matter of debate—some saying that courts have no business second-guessing an employer’s view on who is a minister. Nonetheless, the Opinion Letter notes that the employer’s view of the role of its employees in the life of religion “does not control whether the ministerial exception applies.”

OFCCP Opinion Letter

An organization with a self-described “strong interest in ensuring that Jewish Americans are free to practice their faith in the workplace” asked the Office of Federal Contract Compliance Programs (OFCCP) for guidance on protections for workers' religious beliefs. The OFCCP issued an Opinion Letter titled Legal Protections for Religious Liberty in the Workplace on January 8 in response to that request.

Federal government contractors must commit not to discriminate in their employment practices. Contractors may not, for example, discriminate against workers based on their religion. As an exception, religious employers may favor co-religionist workers, just as is true under the similar Title VII exception. The OFCCP enforces these requirements.

The OFCCP Opinion Letter addresses six scenarios in which an employee expresses or shares religious values. As examples, the Letter states that employers may not take adverse action against a worker because he or she:

• appears to hold values "that others may find offensive"—e.g., the worker attends a religious school or an Orthodox synagogue with sex­-segregated seating;
• is a member of a religious group that takes public policy positions that others may find offensive—e.g., a group that opposes late-term abortions;
• attends an event or supports a cause that others may find offensive—e.g., the March for Life or a rally opposing anti-Semitism; or
• takes positions based on religious views during an off-duty discussion of current events or social issues that co-workers might find offensive—e.g., stating a belief in traditional marriage.

As noted, a religious organization is generally exempt from those proscriptions to the extent that it prefers to employ workers who share the organization's religious tenets.

The New Administration

It bears note that the incoming Administration will, likely, hold views that are antithetical to this recent guidance and may attempt to limit or withdraw it. In particular, agency heads under the Biden Administration will in all likelihood push for regulations that prioritize equal protection rights (e.g., LGBTQ) over First Amendment religious freedoms. As an initial step, the White House issued a Memorandum on Inauguration Day instructing agencies to freeze actions to propose new rules or agency guidance. That instruction does not affect agency actions that have become final, such as the guidance documents discussed above.

If you have any questions about these developments, please contact us.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.

Employment Law for Ministries is prepared by Donn Meindertsma and Danny Miller, both partners in the Washington, D.C. office of Conner & Winters.

Donn advises clients on all aspects of employment law and has had an active labor and employment litigation practice for over 30 years. He can be reached at (202) 887-0465 or dmeindertsma@cwlaw.com.

Danny is a member in the firm's employee benefits group. He advises church denominational benefit plans and programs, large independent churches, and religious nonprofits on employee benefit issues. He can be reached at (202) 887-4783 or dmiller@cwlaw.com.

How much weight do regulatory issuances such as the EEOC’s Compliance Manual and the new Opinion Letters carry? As a general rule, they are authoritative and employers may rely on them, with the caveat that a court might not agree with them if they become the focus of litigation.

Agency pronouncements like these are entitled to deference, but only to the extent they are deemed persuasive. Courts will consider how thoroughly the agency considered the issue, whether the agency’s reasoning seems valid, whether the issuance is consistent with earlier and later pronouncements, and any other factors that give the issuance the so-called power to persuade.

A disclaimer at the beginning of the Compliance Manual states: "The contents of this document do not have the force and effect of law and are not meant to bind the public in any way. This document is intended only to provide clarity to the public regarding existing requirements under the law or agency policies." Similarly, Opinion Letters are just that: they express the opinion of the agency at a particular point in time on a narrow question presented by someone seeking guidance on an unresolved area of the law. Ordinarily, the government will restrain itself from taking a contrary position while the Opinion Letter is in effect, but private parties are not foreclosed from arguing that the agency guidance is unpersuasive and, thus, not authoritative. In addition, subsequent administrations—including newly appointed EEOC Commissioners and new federal agency directors—will have their own, potentially contrary opinions and may issue new guidance.

A former Gordon College professor of social work, Margaret DeWeese-Boyd, is suing the college for discrimination. She alleges that Gordon College denied her a promotion to a full professorship because she was critical of the school's stance on LGBTQ matters. The lower courts allowed the case to proceed, rejecting Gordon College's ministerial exception defense. The school appealed.

The case has now made its way to the Supreme Judicial Court of Massachusetts, which heard oral arguments in the case on January 4. According to media reports, one of the justices expressed concern about the court's proper role: "I feel like we’re treading into dangerous territory here if we start deciding what her secular aspects are and what her religious aspects are in a school that doesn’t draw those distinctions." A decision is expected later this year.