Catholic School Principal a ‘Minister,’ Can’t Sue for Bias

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By Kevin McGowan

A Roman Catholic elementary school principal can’t pursue sex bias and retaliation claims against the Archdiocese of New York because a “ministerial exception” bars her federal civil rights claims, a federal appeals court ruled ( Fratello v. Archdiocese of N.Y. , 2017 BL 243547, 2d Cir., No. 16-1271, 7/14/17 ).

Joanne Fratello’s job title of “lay principal” wasn’t “inherently religious,” but “she held herself out as a spiritual leader” and performed “many important religious functions” to advance the school’s Roman Catholic mission, the U.S. Court of Appeals for the Second Circuit said July 14.

It therefore affirmed a district court’s dismissal of Fratello’s claims that her contract at St. Anthony’s School in Nanuet, N.Y., wasn’t renewed because of sex discrimination and retaliation for her bias complaints.

High Court Precedent

Religious employers can assert a “ministerial exception” defense to discrimination claims from individuals who can be classified as the organization’s religious leaders. The court-created doctrine is meant to protect such employers’ First Amendment rights to freedom of religion and to prevent government interference with decisions on religious matters.

The U.S. Supreme Court in 2012 ruled courts must consider the ministerial exception when employees of religious-affiliated schools allege bias under federal anti-discrimination laws. It found a Lutheran elementary school teacher was a “minister” but also said whether the exception applies is a case-specific inquiry.

Job Functions Most Critical

The Second Circuit’s ruling is a victory for religious liberty and a welcome application of the Supreme Court precedent, said Eric Rassbach, a lawyer for the Becket Fund for Religious Liberty in Washington, which represented the archdiocese, local church, and school in Fratello’s case.

Lower courts generally have taken the Supreme Court “at its word,” applying the ministerial exception not only to religious school principals but also to teachers who incorporate “religious content” into secular subjects, Rassbach told Bloomberg BNA July 14.

Rassbach said the Second Circuit notably endorsed Justice Samuel Alito’s concurring opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which said courts should focus less on an individual’s job title and more “on the function performed by persons who work for religious bodies.”

Former Principal Will Seek Rehearing

It’s an “irony” that under Roman Catholic church law, Fratello as a lay person would never be deemed a minister, said Michael Diederich, the Stony Point, N.Y., lawyer who represented her.

But the court is ruling that under the civil law, the archdiocese nevertheless can call her a minister for purposes of extinguishing her employment law rights, Diederich told Bloomberg BNA July 14.

There’s no logical end point to the court’s rationale, which would seem to allow a parochial school to assert all its lay teachers are ministers as well, Diederich said.

Fratello will file a petition for rehearing by the full Second Circuit, he said. The panel issued “an extremely ill-conceived” decision that threatens the principle of separation of church and state, Diederich said.

Case-by-Case Approach

The Second Circuit emphasized it wasn’t ruling that all parochial school principals can be considered ministers for purposes of the exception to employment discrimination laws.

But Fratello as principal expressly was required to advance the school’s religious mission and functionally was a “minister,” Judge Robert D. Sack wrote in an opinion joined by Judges Raymond Joseph Lohier Jr. and Gregory H. Woods.

“It is the relationship between the activities the employee performs for her employer, and the religious activities that the employer espouses and practices, that determine whether employment-discrimination laws implicate the religious group’s First Amendment rights,” the Second Circuit said.

Fratello was called a “lay principal,” but her duties included making sure teachers incorporated Catholic values into their lessons, reciting daily prayers over the school loudspeaker, and organizing school religious assemblies, the court said.

Modeling Catholic values was an express job requirement, and Fratello’s performance reviews made frequent references to her religious role, the court said.

Fratello’s case “lies at the center of the tension between an employer’s right to freedom of religion and an employee’s right not to be unlawfully discriminated against,” the court said. “The ministerial exception, as we understand it to be interpreted by the Supreme Court, resolves that tension in this case against Fratello.”

Rivkin Radler LLP also represented the archdiocese, church, and school.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editors responsible for this story: Peggy Aulino at; Terence Hyland at; Chris Opfer at

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