Hosanna-Tabor and the Court’s Retaliation Decisions

Anne King

Last week the Supreme Court decided Hosanna-Tabor Evangelical Church and School v. EEOC, recognizing a ministerial exception to the Americans with Disabilities Act’s anti-retaliation provision under the First Amendment. The Court also held that the ministerial exception applied to Cheryl Perich, a teacher at a church-based school who threatened to bring an ADA claim.

The ADA and other workers’ rights statutes prohibit employer retaliation against an employee for protected activity, such as filing a discrimination claim. Normally, a retaliation case involves a pretext analysis, because the employer rarely admits that retaliation was the reason for an adverse employment action. Instead, an employer might cite performance, or perhaps insubordination, and the employee has to show that protected activity was the actual motivator.

But Hosanna-Tabor is very different, because the church acknowledged terminating Perich because of what would normally count as protected activity. As Justice Alito’s concurrence summed it up, “Hosanna-Tabor discharged [Perich] because she threatened to file suit against the Church in a civil court. This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna-Tabor’s view, [Perich’s] disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith.” That is, the church acknowledged conduct amounting to retaliation, but the church’s right to make that decision implicates the Free Exercise and Establishment Clauses.

Although the Court famously sided with employers in several recent high-profile opinions (Wal-Mart v. DukesLedbetter v. Goodyear Tires), its latest retaliation decisions have actually been relatively good for employees (Crawford v. NashvilleKasten v. St. GobainThompson v. North American Stainless).

Hosanna-Tabor departs from that trend, but comparing the 9-0 decision to last term’s 8-0 Thompsonsuggests some continuity in the Court’s approach to retaliation. In both cases, broadly speaking, the Court addressed the problem of who is protected under an employment discrimination law’s anti-retaliation provision, and declined to articulate a specific rule defining who is protected.

In Thompson, after a female employee filed a charge of discrimination with the EEOC, her employer fired her fiancé, who worked at the same plant. The Court held that the fiancé was protected by the anti-retaliation claim,  but the Justices “decline[d] to identify a fixed class of relationships for which third-party reprisals are unlawful.”

Similarly, in Hosanna-Tabor the Court did not provide a rule stating when the ministerial exception applied. Hosanna-Tabor offered a bit more guidance than Thompson, citing factors which carry weight in applying the exception, such as holding oneself out as a minister, or performing religious functions.  But both Hosanna-Tabor and Thompson, for the most part, leave to the lower courts the task of identifying and shaping the factors determining who is protected under anti-retaliation provisions.

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