By: Salena E. Moran*
Abstract
The intersection of religion and civil rights in employment law has become a wedge, deepening the ideological divide of the United States. Typically, employers are subject to federal antidiscrimination statutes like Title VII of the Civil Rights Act of 1964. However, religious employers are afforded discretion in employment decisions through carveouts called ministerial exceptions. These exceptions prevent employees designated as ministers from asserting antidiscrimination lawsuits related to tangible employment actions like hiring and firing. This carveout prevents interference with religious institutions’ internal governance, thereby respecting their religious autonomy pursuant to the First Amendment. However, the circuits are split as to whether ministers can pursue claims based on intangible employment actions like harassment. This has had an impact on the LGBTQ+ community, as individuals with minister status cannot bring hostile work environment claims for harassment based on sexual orientation.
This Comment advocates that the Supreme Court should revisit the old guidelines of the ministerial exception or create a new test that is easily applicable for determining minister status to ensure an adequate balance respecting the values of religious freedom and civil rights protections. A narrower test would lessen the number of individuals who receive minister status and thus enable them to exercise their civil rights by pursuing discrimination claims. As a second step, this Comment argues that, if one is designated a minister, harassment claims should not be barred by the ministerial exception. Instead, harassment claims should be subject to state Religious Freedom Restoration Acts (“RFRAs”), which use a compelling government interest test akin to constitutional strict scrutiny. If the claim is not subject to a RFRA standard, then ministers should be allowed to prove harassment claims under the difficult “severe or pervasive” standard of sexual harassment amounting to a hostile work environment.
*J.D. Candidate, The Pennsylvania State University, Penn State Law, 2023.