Attorney General Becerra Urges U.S. Supreme Court to Retain Current Balancing Test Protecting Workers and Religious Freedom

Wednesday, March 11, 2020
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SACRAMENTO – California Attorney General Xavier Becerra today filed a multistate amicus brief in two consolidated cases urging the U.S. Supreme Court to retain a previously established multi-factor test designed to safeguard the rights of workers and religious organizations. The test has been used since 2012 to determine which employees fall under the so-called “ministerial exception” and are therefore not protected by state and federal anti-discrimination laws. The defendants in each case have asked the court to broadly expand the exception, which could risk the unnecessary elimination of workplace protections for employees of religious organizations across the country.

“Our nation’s labor laws are designed to protect workers all across the country,” said Attorney General Becerra. “Broadening the ministerial exception would rob Americans of critical, hard-fought antidiscrimination protections. At the California Department of Justice, we’re committed to doing our part to uphold the rights of both our state’s religious organizations and workers.”

The consolidated cases stem from discrimination lawsuits filed by teachers at two different religious schools in California. In Biel v. St. James School, a fifth-grade teacher alleged that the school violated the Americans with Disabilities Act when administrators chose not to renew her contract after she informed them that she would need time off to treat her breast cancer. In Morrissey-Berru v. Our Lady of Guadalupe School, a different teacher alleged that she was first demoted, then fired, in violation of the Age Discrimination in Employment Act. In each case, the school maintained that even if the teachers were right about why they were fired, courts could not grant them relief, because the teachers’ employment was subject to the ministerial exception from antidiscrimination laws. The U.S. Court of Appeals for the Ninth Circuit rejected that defense in both cases and held that the teachers could move forward to try to prove their discrimination lawsuits. However, following petitions by the schools, the cases are now under review by the U.S. Supreme Court.

Under current law, the government is barred from interfering with the employment decisions of religious organizations with respect to ministers. Under the test that the Supreme Court established in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, courts examine multiple factors to determine if a particular employee is actually covered under the religious exception. Those circumstances include:

  • The employee’s title within the organization;
  • Whether the individual has had significant religious training;
  • Whether the employee holds himself or herself out as a minister of the church; and
  • Whether the individual’s duties include a religious function with respect to conveying the organization’s religious message and carrying out its mission.

The defendants in these cases have argued that the first three factors should not be given weight, and that the test should focus only on any religious function the employee carries out. That raises the possibility that individuals who are assigned even a small degree of religious work in large organizations such as schools or hospitals could be subjected to the religious exception and lose workplace protections. In the amicus brief filed today, the coalition of states emphasizes the importance of state and federal antidiscrimination laws in removing barriers to employment and advancement for those who face discrimination on the basis of age, disability, race, color, religion, sex, LGBTQ status, national origin, and more. The brief highlights how an overbroad ministerial exception could weaken those efforts.

Attorney General Becerra is committed to fighting against discrimination wherever it occurs. Earlier this year, Attorney General Becerra filed two multistate comment letters in opposition to federal proposals to roll back critical anti-discrimination protections for patients and students. Last year, the Attorney General pushed back against a proposal to undermine protections under the Affordable Care Act that prohibit discrimination on the basis of race, color, national origin, sex, disability, and age. Attorney General Becerra also joined a coalition of attorneys general to defend Title VII’s anti-discrimination provisions before the U.S. Supreme Court. In May of 2019, Attorney General Becerra led a coalition of states in asserting that gender non-binary individuals deserve full legal recognition of their accurate gender identity on passports.

In submitting the amicus brief, Attorney General Becerra joins the attorneys general of Virginia, Colorado, Connecticut, Delaware, Illinois, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.

A copy of the amicus brief is available here.

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