Administrators, Not Ministers—Bostock Bars Discriminatory Termination of Drama Teacher at Catholic High School

Last week, a federal judge ruled in favor of a gay former drama teacher who lost his job at Charlotte Catholic High School after he announced on social that he and his male partner were getting married.

A federal court in North Carolina deemed the organization’s actions discriminatory on the basis of sex. Even though the organization is a religious one.

The key to the decision—the teacher’s secular position with the school.

What Happened In This Case?

The employee, Mr. Billard, was a drama teacher and then a sub at a Catholic high school in North Carolina. He even won awards during his tenure, and students consistently nominated him as teacher of the year.

As happens, while a teacher, Mr. Billard met a nice man—it was no secret—and he brought his significant other to school events.

When Mr. Billard and his beloved decided to marry, he posted all about it publicly, on Facebook, because…of course he did.

Staff and parents saw Mr. Billard’s post, and he even told the principal of the school directly about his impending nuptials. The Chaplain was not happy and instructed the school principal to fire Mr. Billard as a sub for the school.

The assistant principal told the substitute drama teacher that he could not work at the school any longer because he publicly “announced his intention to marry a person of the same sex.” (Source)

Cue this lawsuit—Billard v. Charlotte Catholic High School.

Image by Thomas Ulrich from Pixabay

Sex Discrimination

An employer who fires or takes any adverse action against an individual merely for being gay violates Title VII of the Civil Rights Act of 1964 (“Title VII”), even if the employee’s sexual orientation was only part of the reason for an adverse action. 

According to SCOTUS in the landmark decision Bostock v. Clayton County, “an individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Indeed, in this case, U.S. District Judge (for the Western District of North Carolina) Max Cogburn Jr. noted:

Bostock v. Clayton County held it is impossible to discriminate against someone for being homosexual or transgender without discriminating against them based on sex. 140 S. Ct. 1731, 1741 (2020).

You can read the court’s 54-page ruling here.

Wait a second. This is a Catholic school. What about the ministerial exception? Doesn’t that apply?

Nope. Not here.

What IS the “Ministerial” Exception

I shall explain. The “ministerial” exception bars Title VII claims filed by employees who serve in clergy-based roles for a religious employer.

Indeed, SCOTUS has defined a “ministerial exception” to the anti-discrimination laws as a concept that protects religious organizations from being sued about their decisions to hire or terminate employees who can be described as “ministers.”

But, because there’s always a “but,” the exception applies only to employees who perform essentially religious functions, namely, those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction.

It is a First Amendment principle that governmental regulation of church administration, like hiring, impedes the free exercise of religion and inappropriately mixes church and state.

In fact, the school-employer argued here that “The First Amendment, federal law, and recent Supreme Court decisions all recognize the rights of religious organizations to make employment decisions based on religious observance and preference,” according to the statement from the diocese. “They do not — and should not — compel religious schools to employ teachers who publicly contradict their teachings.

So…Didn’t the Ministerial Exemption Prohibit the Employee’s Claim?

Nope.

In this case, Judge Cogburn ruled that federal laws protecting church autonomy and freedom of association didn’t “shield” the school and diocese from liability for violating sex discrimination laws in Title VII.

While the exception applies to organizations like Catholic schools and entities with religion-based missions, Judge Cogburn explained that the exception “is limited only to employees who perform spiritual functions.”

Does a drama teacher perform spiritual functions? No. He’s a sub of a purely secular subject.

Image by Julie Rose from Pixabay

While the school argued that the church autonomy doctrine provides broad protections, Judge Cogburn was having none of it. He stated

If the church autonomy doctrine was so expansive as to create in all religious employers a First Amendment right to engage in employment discrimination, then there would be no need to have a ministerial exception because Title VII would not protect any employee of a religious organization. …“[T]eachers at religious schools who are entrusted with the responsibility of instructing their students in the faith” are ideal candidates for a ministerial exception, but the Supreme Court never intended to expand a religious organization’s autonomy to encompass all types of employment discrimination.

(citations omitted).

Employer Takeaway

The ministerial exception is narrow and will not justify terminating an employee of a religious institution—because of sexual orientation, i.e., sex, who teaches a secular subject, and publicizes their engagement on social media.

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Amy Epstein Gluck

Amy Epstein Gluck has represented individuals and corporate clients in Virginia, Washington, D.C., and various federal district courts for more than twenty years. Ms. Epstein Gluck’s current practice areas include employment law—advising on and drafting employment agreements; handling employment negotiations, severance agreements, noncompete and nondisclosure agreements, “wrongful terminations” and other EEO matters; representation at the EEOC level; advising employers about discrimination laws and how to remain in compliance, and employment negotiations.