We reported just one week ago on Grussgott v. Milwaukee Jewish Day Sch. Inc. applying the SCOTUS ruling in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C, in concluding that a Hebrew School teacher was included in the “ministerial exception.” Now another major decision comes down, this time from the Second Circuit Court of Appeals, finding that a Roman Catholic elementary school principal is with in the ministerial exception. In Fratello v. Archdiocese of N.Y. (July 14, 2017), the Court determined that “although Fratello’s formal title was not inherently religious, the record makes clear that she held herself out as a spiritual leader of the School and performed many important religious functions to advance its Roman Catholic mission. The ministerial exception thus bars her employment-discrimination claims because she was a minister within the meaning of the exception.”
More to come, for sure!
In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C, 565 U.S. 171, 188, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012), SCOTUS concretized the Ministerial Exception, which exempts religious institutions from the applicability of federal employment discrimination statutes in the face of First Amendment concerns. The Court broadened the“minister” category to include those whose work is part of the institution’s religious mission, not necessarily involving ordination. The Court did not, however, set forth specific parameters to help determine exactly who is a minister.
A recent decision in the United States District Court for the Eastern District of Wisconsin, Grussgott v. Milwaukee Jewish Day Sch. Inc., 16-CV-1245-JPS, 2017 U.S. Dist. LEXIS 82010, helps clarify Hosanna Tabor’s scope. This case, unlike Hosanna Tabor, involved a Hebrew School teacher, not known as a “minister” (ordained or otherwise), but whose functions were so tightly connected to the school’s religious mission as to bring her within Hosanna Tabor’s scope. Other courts will surely follow in helping bring more fact-based clarity to this issue.
A new law took effect today in New York City. Designed to protect freelance workers, the Freelance Isn’t Free Act “establishes and enhances protections for freelance workers, specifically the right to: a written contract, timely and full payment, and protection from retaliation.” The statute’s full text is found here. Religious institutions that employ freelancers should be aware of the law’s requirements. Non-employee ministers may be covered by this Act.
Nelson Madden Black partner Jonathan Nelson has been elected President of the Christian Legal Society’s New York City Chapter.
On Tuesday, April 4, 2017 partners Jonathan Nelson and Barry Black participated in a Brooklyn Law School panel entitled Religion, Media & the Law. The event was presented by the school’s Christian Legal Society, Muslim Law Students Association and Jewish Law Students Association, and was moderated by Professor Nelson Tebbe. Other panelists were Akiva Shapiro of Gibson Dunn & Crutcher, LLP and Omar T. Mohammedi of the Law Firm of Omar T. Mohammedi.
On March 20, 2017, Nelson Madden Black partner Barry Black taught a CLE course for myLawCLE, co-sponsored by Wolders Kluwer, entitled Employment & Ethical Considerations for Churches. A video feed of the course is available here.
Nelson Madden Black partner, Jonathan Nelson, recently joined the board of the New York Chapter of the Christian Legal Society. At last Monday’s meeting, we heard an update on Open Hands Legal Services from board member Haejin A. Shim, and shared fellowship over pizza.
Jonathan notes that at the next meeting, tentatively planned for late March, “We will be discussing the concept of ‘sanctuary’ and whether it is reflected in current law.”
In Advocate Health Care Network v. Stapleton, the Supreme Court is set to decide whether the church-plan exemption to the Employee Retirement Income Security Act of 1974 (ERISA) applies so long as an otherwise-qualifying church-affiliated organization maintains a pension plan, and whether the exemption applies only if a church initially established the plan. This case is expected to be argued in the Spring of 2017. Will the Supreme Court vacancy be filled by then, and how could that affect the outcome? Stay tuned!
Jonathan Nelson was one of the speakers at a seminar held at the Central Presbyterian Church in New York City by the Christian Legal Society on October 24, 2016. The seminar was attended by local pastors and other church administrators and lay leaders. Mr. Nelson spoke on the topic of “Real Estate Issues in the Church Life Cycle.”