On March 11, 2020, the National Employment Lawyers Association (“NELA”) filed an amicus brief with the U.S. Supreme Court in St. James School v. Biel (consolidated with Our Lady Of Guadalupe School v. Morrissey-Berru (19-348 & 19-267)) urging the court to strike a delicate balance between religious organizations’ First Amendment rights and the right for workers to be free from discrimination in the workplace.

Both Biel and Morrissey-Berru arose after teachers at Catholic schools filed suit alleging discrimination when their contracts were not renewed. Both schools argued that the teachers were “ministers” as they served important religious functions in the course of their employment, and decisions surrounding their employment were therefore exempt from anti-discrimination statutes. The 9th Circuit disagreed with this assessment, upholding the Hosanna-Tabor totality-of-the-circumstances test. The brief asks the Court to uphold this current test, which requires lower courts to engage in a fact-intensive examination of four factors (the employee’s formal title; the substance reflected in that title; the individual’s own use of that title; and the important religious functions the individual performed for the religious organization) when determining if an employee is a “minister.”

NELA’s brief argues that the current totality-of-the-circumstances test has proven a workable standard, that properly balances religious freedom and workers’ right to be free from discrimination. The brief further points out the large numbers of workers who would potentially be open to discrimination in the workplace should the court adopt the one-factor test proposed by petitioners.

You can download a copy of the brief here.