Dive Brief:

• A church music director was a "minister" and therefore exempt from nondiscrimination protections, the Massachusetts Appeals Court ruled July 29 (Menard v. Archdiocese of Boston, No. 19-P-213 (Mass. App. Ct., July 29, 2020)).
• The director, Alessendrinia Menard, had complained to the Archdiocese of Boston, alleging her church subjected her to gender and age discrimination and harassment. After her complaint, she was subjected to retaliation, she alleged in the subsequent lawsuit.
• A lower court held that the director fell within the First Amendment's "ministerial" exception, and the appeals court agreed. "Menard's job duties place her squarely within the ministerial exception. As implied by her title, director of music ministries, Menard's role was a substantive one," it said. "Menard herself explained … that '[m]usic choices for [Mass] Liturgies are carefully and prayerfully chosen ... to encourage full and active participation of the assembly.'"

Dive Insight:

The U.S. Supreme Court recently weighed in on the ministerial exemption to Title VII of the Civil Rights Act of 1964. It held last month in Our Lady of Guadalupe School v. Morrissey-Berru that individuals teaching religion at religious schools are ministers and therefore not entitled to the law's protections. Most relevant to Menard was that court's note that "[w]hat matters, at bottom, is what an employee does," the Massachusetts appeals court said.

The Menard court, however, relied heavily on a 2012 Supreme Court ruling, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In that opinion, the high court carved out the ministerial exception and made clear that it "is not limited to the head of a religious congregation," the appeals court said. The Supreme Court also rejected a rigid formula, instead favoring "a fact-intensive inquiry that considered multiple factors, including the employee's title, her training, her job duties, and her 'role in conveying the Church's message and carrying out its mission.'"

Notably, the recent Our Lady of Guadalupe School decision came the same day as another high court opinion holding that the Trump administration had the authority to expand the ability of employers to claim moral or religious exemptions from the Affordable Care Act's contraceptive mandate.

The pair of rulings were praised by the Trump administration and represented "significant wins" for affected employers, Leah Litman, assistant professor of law at the University of Michigan Law School, wrote in a Washington Post op-ed.