Religious Exemption from Employment Discrimination Center of Appeals Court Case

In oral arguments heard this past Tuesday, judges on the Second Federal Appeals Court appeared to favor arguments that would shield religious schools from many charges of discrimination.

The case revolves around the claims of Joanne Fratello, who served as principal at St. Anthony’s, a Catholic school in Nanuet, New York. When the school opted not to renew her contract, she sued on the grounds of discrimination, challenging the idea that her employer should be largely exempted from such laws on account of its religious status.

“This is a very straightforward case based on over 45 years of courts applying [the idea of] ministerial exception,” said Attorney Eric Rassbach in his opening remarks to judges. He is representing the school, as well as the Archdiocese of New York State, on behalf of his firm, the Becket Fund. “When courts looked at these cases they said, we understand that you are a school with a religious mission and it matters who you choose for a principal.”

Michael Diederich, Mrs. Frattello’s counsel, painted his client’s claims in dramatic terms, saying that a ruling against her could “hurt democracy itself.”

“You would be establishing religion in this country,” he told judges. “[If the court rules against Mrs. Fratello] no one will take these cases and then it will extend to teachers and even companies.”

In statements and responses that at times seemed meandering, Mr. Diederich warned of encouraging “tribal” tendencies and “indoctrination.”

As one of the judges noted, the case bears particular significance as it is the first time the New York-based court is dealing with religious exemptions from employment discrimination since the Supreme Court’s unanimous decision in EEOC v. Hosanna-Tabor, which protected a Lutheran school’s right to dismiss a teacher, despite a disability claim. The decision built on a long case history of courts granting what they label “ministerial exemption” to religious institutions as a means of avoiding government interference in the hiring or dismissal of individuals involved in propagating the mission of faith institutions.

One factor in particular focus at Tuesday’s hearing was whether Mrs. Fratello’s job was sufficiently religious in nature to warrant the exemption. Despite executing and administering a great many religious activities, Mr. Diederich insisted that her position was secular and that it was unfair to cast her retroactively as a “minister.” Judges seemed repeatedly skeptical about the argument.

“The contract says that the school puts their trust [in the principal] … in teaching Catholic values, that sounds pretty religious to me,” one of the judges said.

Judges noted that part of Mrs. Fratello’s job involved leading prayers, writing monthly religious messages and designing curriculum for Catholic instruction.

Mr. Rassbach argued that while Mrs. Fratello’s involvement in faith matters makes this case “simple,” the ministerial exemption has been broadly applied to a number of positions, including music directors, pre-school teachers and kashrus supervisors.

Judges did show concern for whether the exemption could ultimately make religious organizations immune from too broad a list of discrimination claims, even those having little or nothing to do with faith issues, as well as the scope of employees that could be covered. At one point, a member of the panel suggested that even if the court rules for the Archdiocese, “we could say it applies here but not elsewhere.” Daniel Bromberg, another attorney for Becket, told Hamodia that the case “goes to the heart of protecting the rights of all faith groups to select their leaders.”

“It’s a very important issue at stake,” he said. “Religious organizations need leeway in selecting anyone who is involved in delivering their message. Failure to do so would really undermine their mission.”

A decision is expected to announced by this coming summer.

This article appeared in print on page 5 of the March 9th, 2017 edition of Hamodia.