Churches and State Employment Law Liability

Employment Law Liability Overview

Most American employers are subject to potential liability on a number of fronts, including the following:


  • federal anti-discrimination statutes

  • federal wage, hour, and safety laws

  • state antidiscrimination statutes

  • employment law torts and

  • breach of contract

Torts often asserted in the employment law context include wrongful termination, intentional or negligent infliction of emotional distress, invasion of privacy, breach of implied covenant of good faith, and defamation.

Churches and the First Amendment


Churches are unique employers in that their employment of leaders, often referred to as clergy or ministers, is protected by the Free Exercise Clause of the First Amendment to the United States Constitution. Courts have consistently held that any interference by the State into church decisions of whom to hire as a leader and whom to retain as a leader would burden the Free Exercise rights of the church. Furthermore, some courts have stated that excessive entanglement by the courts into administrative matters of churches would also violate the Establishment Clause of the First Amendment. This rule, widely known as the "ministerial exception," has been applied to exempt employment law claims against churches from judicial review under both federal and state employment law. This article summarizes the general application of the exception to state employment law claims.

Ministerial Exception Application to State Employment Law Claims


Courts have held that even "apparently arbitrary" decisions regarding the status of churches' clergy employees must be kept free from judicial oversight. Thus, courts have nearly universally held that employment decisions about clergy employees cannot be reviewed by the courts. Under the ministerial exception, breach of contract actions, tort actions, and state law antidiscrimination claims have been dismissed without review by state and federal courts. Even though states have an interest in equal employment opportunity, courts have ruled that the First Amendment interests at issue predominate. Thus, regardless of the label of the action, if the clergy employee or applicant is asking a court to review a hiring, firing, or other employment decision the church made with respect to him or her, the courts will likely dismiss the action.

This rule has been extended by some courts to also apply to lay church employees performing some of the duties of ministers. Courts, however, have not applied the ministerial exception to custodial or administrative employees of churches.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.