126.3 Constitutional issues

In order to determine whether an individual is considered to work in a “ministerial” position, the ERD must apply the “functional” approach articulated by the Wisconsin Supreme Court in Coulee Catholic, which focuses on whether a position is “important to the spiritual and pastoral mission of the church,” and requires a two-step analysis. Having concluded that the Complainant’s position was ministerial in nature, the ERD may not adjudicate her complaint that she was discriminated against by the Respondent based upon her age. A decision that the ministerial exception applies to her position means that the Complainant may not pursue a claim of discrimination under the WFEA, no matter what the basis. Goralski v. Archdiocese of Milwaukee & Saint Adalbert Sch. (LIRC, 2/27/15), aff’d Goralski v. LIRC, (Waukesha Co. Cir. Ct., 10/2/15).

The Equal Rights Division lacked jurisdiction over the Complainant’s age discrimination complaint. The freedom of exercise clause of the First Amendment of the United States Constitution and the freedom of conscience clauses of the Wisconsin Constitution preclude employment discrimination claims under the Wisconsin Fair Employment Act for employees whose positions are important and closely related to the religious mission of a religious organization. Two factors must be considered in determining whether the function of an employee is part of the spiritual and pastoral mission of the church: (1) Does the organization have a fundamentally religious mission? and (2) How closely linked is the employee’s work to the fundamental mission of the organization? In this case, the Respondent had a fundamentally religious mission, and the Complainant’s position as a first grade teacher was closely linked to the religious mission of the school. The Complainant led her students in prayer, she taught Catholic doctrine and practice, she took her students to Mass every week, and she tried to incorporate Catholic values and to encourage spiritual growth in all of her classes. The Complainant’s age discrimination complaint impinged upon the Respondent’s right to religious freedom. The Equal Rights Division had no jurisdiction over this matter, and could not interfere with the Respondent’s employment decision in this case. Coulee Catholic Sch. v. LIRC, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.

The concept of the ministerial exception has been a judicial shorthand for determining the constitutional question of whether a particular adjudication interferes with the free exercise rights of a religious association. The inquiry in this case was whether or not to renew the Complainant’s teaching contract was based on her age. This was a limited inquiry. The Respondent did not assert a religious reason for its termination of the Complainant’s employment. Therefore, an adjudication under the Wisconsin Fair Employment Act would not cause unconstitutional governmental entanglement with religion. Ostlund v. Coulee Catholic Sch. (LIRC, 02/28/06); aff’d sub nom. Coulee Catholic Sch. v. LIRC (La Crosse Co. Cir. Ct., 01/12/07); aff’d 2008 WI App 68, 312 Wis. 2d 331, 752 N.W.2d 342. Rev’d, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.

The “primary duties” test is a useful guide to determine whether a position is ministerial. In this case, the Complainant was a first-grade teacher at an elementary school which is part of the Coulee Catholic Schools Association and is owned and operated by the Roman Catholic Diocese of La Crosse, Wisconsin. For several reasons, the position in this case was not ministerial. First, a general exemption for teachers in religious schools would be more expansive than warranted when considered in light of the magnitude of the State’s interest in the enforcement of anti-discrimination laws. Second, a religious teacher’s duty to model and support particular religious values does not in itself constitute teaching or spreading the faith. Third, there were few specific findings of religious content in the courses taught by the Complainant. Fourth, the religious class, prayers, and the Complainant’s participation with her students in liturgies did not constitute the primary part of the Complainant’s workday, and they were not the primary focus either of the job description or the job evaluation. Fifth, because the Complainant’s primary duties did not implicate matters of Church, faith, and doctrine, the prospect that employment decisions would implicate those matters was significantly diminished. Coulee Catholic Sch. v. LIRC, 2008 WI App 68, 312 Wis. 2d 331, 752 N.W.2d 342. Reversed, 2009 WI 88, 320 Wis. 2d 275, 768 N.W.2d 868.

The Salvation Army is a church, and its officers serve a ministerial or ecclesiastical function. The Equal Rights Division does not have jurisdiction to resolve a discrimination complaint involving an officer position in the Salvation Army. To allow the Complainant to proceed with such a case would cause the state to intrude upon matters of church administration and government which are matters of ecclesiastical concern and, as such, would violate the Free Exercise and Establishment Clauses of the First Amendment. Coryell v. The Salvation Army (LIRC, 09/27/99).

The Respondent’s decision to discharge the Complainant because she stopped participating in Catholic worship activities and because she married outside the Catholic Church was ecclesiastically based. The Complainant maintained that the Respondent should have been required to demonstrate what a nonsacramental marriage was, according to an objective Catholic text, before the complaint could be dismissed. However, the question of whether the Complainant’s marriage was truly “non-sacramental” pursuant to the tenets of the Catholic faith is the very type of issue which the Equal Rights Division may not reach. In order to decide this question, it would be necessary to assess, evaluate and possibly challenge aspects of the Respondent’s religious philosophy in a manner that would clearly be inconsistent with the mandates of the Free Exercise Clause and the Establishment Clause of the First Amendment of the Constitution of the United States. Newton v. St. Gregory Educ. & Christian Formation Comm. (LIRC, 12/10/97).

Neither the Free Exercise Clause of the United States Constitution nor the Freedom of Worship Clause of the Wisconsin Constitution deprive the Equal Rights Division of subject matter jurisdiction to review and investigate whether evidence supports an employment discrimination complaint filed against a religious association. If the employment position at issue, however, is inherently “ministerial” or “ecclesiastical” the religious protection embodied in the federal and state constitutions precludes the state and its agencies from enforcing the mandates of the Wisconsin Fair Employment Act against the religious association. In this case, the Complainant alleged that a seminary failed to renew her employment contract, and thereby discriminated against her because of sex and her opposition to discriminatory practices. A state agency or court confronting the issue of whether a position is ministerial or ecclesiastical must immediately resolve the question before further investigating or reviewing the employment discrimination complaint. As a general rule, if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ministerial or ecclesiastical. This test should provide a basic framework to follow when addressing the prima facie question of whether a position is entitled to constitutional protection from state interference. Jocz v. LIRC, 196 Wis. 2d 273, 538 N.W.2d 588 (Ct. App. 1995).

The Commission does not have to address the issue of whether interpreting the Wisconsin Fair Employment Act as prohibiting harassment of employees because of religion would violate the first amendment free speech rights of the harasser because there was no unlawful harassment in this particular case. Catley v. Benjamin Air Rifle Co. (LIRC, 06/21/91).

The Equal Rights Division did not violate the free exercise clause of the First Amendment of the U.S. Constitution by holding a hearing to determine whether a religious school’s asserted religious-based reason was in fact the real reason for discharging the Complainant. Sacred Heart School Bd. v. LIRC, 157 Wis. 2d 638, 460 N.W.2d 430 (Ct. App. 1990). The Department would have jurisdiction to hear a case in which a Complainant alleged that a Catholic university refused to hire her because of her sex. It is not clear how far into the process the Department may proceed before running into First Amendment issues and violations, but the Supreme Court has indicated that a state administrative body violates no constitutional rights by investigating and determining whether a religious employer’s asserted religious reason for its alleged discriminatory action was the real reason. Maguire v. Marquette Univ. (LIRC, 08/18/89).

The Equal Rights Division would have jurisdiction to conduct a hearing on a complaint alleging that the Respondent, a Catholic University, discriminated against an employee because of sex in regard to hire, notwithstanding the school’s claim that its constitutional rights to freedom of religion would be interfered with by inquiry into its reasons for its decision. Maguire v. Marquette University (LIRC, 08/18/88).

It would be an unconstitutional infringement of the first amendment right to freedom of religion for the Equal Rights Division to assert jurisdiction over the practice of a Catholic school of forbidding divorced teachers to remarry. Kovach v. Marinette Catholic Cent. High Sch. (LIRC, 06/12/86).