Ministerial Employees and Discrimination Without Remedy

The Supreme Court first addressed the ministerial exemption in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The ministerial exemption is a defense that religious employers can invoke in discrimination cases brought by employees who qualify as “ministerial,” and it is rooted in the First Amendment principle that government cannot interfere in a church’s choice of minister. However, Hosanna-Tabor did not set out a test to determine which employees are covered by this exemption, and the decision was susceptible to a reading that the category was narrow. In 2020, the Court again took up the ministerial exemption, this time staking out a broad test that will cover swaths of teachers at religious schools, among others. This Article explores the costs to employees of the ministerial exemption—especially those who have no idea that they will not have legal recourse if their employer discriminates against them based on a protected characteristic. It closes by raising the possibility that state legislatures could adopt measures intended to blunt these costs, either by helping to close the information gap, or by addressing head-on the costs of discrimination without remedy.