Hosanna-Tabor and the Court’s Retaliation Decisions

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. Read more