ABSTRACT-In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a schoolteacher sued her employer for retaliating against her in violation of the American with Disabilities Act (ADA). The success of her ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for her termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost.In fact, neither the Free Exercise Clause nor the Establishment Clause necessitated the ministerial exception. Under Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the ADA is a neutral law of general applicability. In attempting to distinguish Smith, the Supreme Court not only created an incoherent free exercise jurisprudence but also ignored Jones v. Wolf, which explicitly rejected blanket deference to religious institutions in matters of internal governance. Jones further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether the schoolteacher was a minister entangled the Court in religious doctrine more than simply adjudicating her retaliation claim would have.
The question presented in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was whether a schoolteacher should be considered a minister.1 Although the schoolteacher in this case, Cheryl Perich, began her employment as a lay teacher, she soon became a called teacher with the title "commissioned minister."2 She taught a religion class four times a week and led her class in daily prayers.3 During the bulk of her workday, however, Perich taught math, reading, English, social studies, science, gym, art, and music to third and fourth graders.4
Perich claimed that the school retaliated against her in violation of the Americans with Disability Act (ADA). During the summer of 2004, Perich became seriously ill.5 She took disability leave when school started in the fall and was eventually diagnosed with narcolepsy.6 In January 2005, Perich informed the school principal that her doctor had cleared her to return to work.7 In response, the principal voiced concerns about the safety of students under Perich's care.8 The school board then expressed its opinion that Perich would not be physically capable of returning to work and requested that she resign in exchange for assistance with her health insurance.9 Perich declined the offer.10 Her doctor released her to return to work on February 22, 2005, effectively ending her disability coverage. When Perich reported for work on February 22, the school did not have a job for her.11 Because the school handbook stated that failure to return to work the day after an approved medical leave expires may be considered a voluntary termination, Perich refused to leave school grounds without a letter acknowledging she had appeared for work.12 After Perich told the principal that she would sue for disability discrimination, she was fired.13 Correspondence from the school indicated that she lost her job because she was insubordinate and threatened to take legal action.14 Under the ADA, it is illegal for an employer to retaliate against an employee for bringing or threatening to bring a disability discrimination suit.15
The success of Perich's ADA claim turned on whether the Supreme Court thought that she was a minister. If she was not a minister, she would have probably won. After all, the school stated in writing that a main reason for Perich's termination was her threatened lawsuit. But because the Supreme Court decided that she was a minister, and that ministers may not sue their religious employers for discrimination under the ministerial exception, she lost. …