Earlier this fall, the Wisconsin Supreme Court granted a petition for review in Coulee Catholic Schools v. Labor and Industry Review Commission. The decision below is here.
The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.
The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”
Although Ms. Ostlund’s duties certainly included “teaching and spreading the faith” (although the school did not require teachers to be Catholics) and participation in worship, the court held that they were not primary. While it did not say that it based its decision simply on the amount of time devoted to religous and secular duties, this seems to have been very important. Noting that most other cases to have considered the issue have concluded that lay teachers at religious schools do not fall within the exception, the court was unwilling to adopt a broad view of the exception that would have rooted it in the primary mission of the school (which was certainly to teach and form students in the faith.)
One of the interesting things about the Court of Appeals decision is that it rejected LIRC’s contention that the ministerial exception should not apply when the employer does not claim a religious justification for its decision (as the school here did not). If an employee is within the exception, it applies even if the claimed basis for a termination or other adverse action is secular.
And . . . even if the employee is not within the exception, a religious employer may nevertheless have a First Amendment defense (or, I suppose, a defense under Art. I, § 18 of the Wisconsin Constitution) if the proferred reason for the challenged employment action was religious and consideration of it would constitute excessive entanglement.