The Supreme Court is considering whether a parochial school has the right to fire employees at will. Traditionally, religious organizations have been given a lot of latitude when it comes to compliance with employment and discrimination laws, primarily because of the First Amendment issue. This concept, that religious groups are exempt from compliance is called the Ministerial Exemption and it was originally a relatively benign concept. However, it has grown and grown over the past several decades and is now being horribly misused by some organizations.It was originally intended to apply solely to ministers, priests, rabbis and others in high leadership positions. Now been expanded to apply to many lower-level employees as well, including mashgichim, bookkeepers, teachers, etc.
OnionSoupMix has a stunning post about a case now before the Supreme Court of the United States:
…In Hosanna-Tabor v. EEOC, the Supreme Court is considering whether a parochial school has the right to fire employees at will. Traditionally, religious organizations have been given a lot of latitude when it comes to compliance with employment and discrimination laws, primarily because of the First Amendment issue. This concept, that religious groups are exempt from compliance is called the Ministerial Exemption and it was originally a relatively benign concept. However, it has grown and grown over the past several decades and is now being horribly misused by some organizations. For example, although it was originally intended to apply solely to ministers, priests, rabbis and others in high leadership positions, it has now been expanded to apply to many lower-level employees as well, including mashgichim, bookkeepers, teachers, etc.
In the original case, Ms. Perich, a parochial school teacher, was fired after she became ill and needed to take time off, in violation of the Americans with Disabilities Act. This case is about whether she is important enough religiously to the school to be deemed a ministerial employee and if she is, she may not sue the school for violation of her rights. It is generally expected that the Court will also provide some limitation or guidance on the contours of the ministerial exemption and when it should/should not be used.…
Lets be clear.
Right now, a haredi school can fire a teacher without cause, and not face any legal reprocussions because of the Ministerial Exemption. It can do the same thing to the school nurse or the lady who answers the phones – or even the janitor.
This is bad for many reasons, not the least of which is the following, pointed out by OnionSoupMix:
…Limiting people's protections to those outside the secular legal system is dangerous to many, many potential victims. If you are a teacher and your family depends on your paycheck to pay the grocery and electric bills, are you going to report a principal's sexual abuse of a student if you know that you might likely be fired and be left with only a beis din to hear your case?…
So guess who filed Amicus briefs with the Supreme Court opposing any change in the status quo? A broad array of ultra-Orthodox organizations, including Agudath Israel of America, which just issued a ruling telling amdated reporters of child sexual abuse and other forms of abuse not to report those crimes to police or child protective services. Instead, said Agudah, go to rabbis and let them decide whether or not the suspected abuse should be reported.
And guess who's playing a key role in fighting for the status quo – and endangering children?
…An impressive array of Orthodox Jewish organizations and Rabbinical Courts from across the United States has filed an Amicus Curiae (“friend of the court”) Brief with the United States Supreme Court, in which they advocated that controversies between religious institutions and their present or former employees should be considered and determined by religious authorities applying the principles that govern the faith, such as a Beth Din (“Rabbinical Court”).
At the center of the debate in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is the “ministerial exception,” which bars secular courts from presiding over employment-related lawsuits against religious organizations by employees who perform religious functions. The Supreme Court will consider whether the “ministerial exception” extends to a teacher at a religious school who is involved in both the secular curriculum and the religious aspects of the school.
The brief was filed by The National Jewish Commission on Law and Public Affairs (“COLPA”), which is an organization of volunteer lawyers that advocates the position of the Orthodox Jewish community on legal issues affecting religious rights and liberties in the United States. COLPA has filed amicus briefs in the Supreme Court of the United States in 28 cases since 1968.
COLPA filed the brief on behalf of Agudath Israel of America, National Council of Young Israel, Agudas Harabonim of the United States and Canada, Rabbinical Alliance of America, Torah Umesorah, Baltimore Bais Din, Beth Din of the Rabbinical Council of California, Boston Rabbinical Court of Justice, Kehilla Bais Din of Los Angeles, Maysharim Bais Din of Lakewood, and Bais Din Tzedek U’Mishpat of New York.
In their brief, the organizations assert that every Jewish employee hired by a religious school who performs any religious function should be covered by the “ministerial exception,” whether it is a Rabbi or a teacher. They maintain that disputes involving a Jewish employee of a religious school who performs any religious duty should be heard by a Beth Din, rather than having a secular court become involved in the matter and attempt to ascertain the employee’s specific role in the school relative to the religious components of the institution.
“The ‘ministerial exception’ that is being defined in this case should, in the view of these amici, be applied broadly to withdraw from the jurisdiction of secular courts litigation that could and should be decided in accordance with religious guidelines by religious authorities,” the organizations wrote in their brief to the court. “This principle extends beyond employment controversies with employees whose ‘primary duties’ are religious. It includes all claims made by or against any employee whose duties relate in any manner to the religious doctrine or teaching of his or her employer, particularly if, as is true of Jewish institutions, a meaningful internal religious remedy is available to the plaintiff.”
In their amicus brief, the Orthodox Jewish organizations describe for the Supreme Court a number of relevant propositions of Jewish Law that affect the resolution of employment-related controversies involving Jewish religious institutions and Jewish employees.
“Courts should not be permitted to substitute their superficial understanding of religious doctrine for more learned evaluations by scholars committed to observance of religious precepts,” concluded the organizations in their brief.
“The Orthodox Jewish community has a particularly strong interest in insuring that disputes between Jewish institutions and their Jewish employees be resolved according to Jewish Law by rabbinical courts (Batei Din) rather than by secular courts,” said Nathan Lewin, Esq. of Lewin & Lewin, LLP, who authored the brief. “It is gratifying that COLPA (The National Jewish Commission on Law and Public Affairs) was able to gather such a broad coalition of Orthodox groups and rabbinical courts so that we can present to the Supreme Court the unique Jewish perspective on this important issue.”
“Rabbinical courts throughout the United States are qualified to arbitrate these issues without the intervention of the secular judicial system,” said Shlomo Z. Mostofsky, Esq., the President of the National Council of Young Israel. “A dilution of the “ministerial exception’ will also dilute our institutions’ right to freedom of religion under the First Amendment of the U.S. Constitution.”
“The right to autonomy and internal governance is integral to the religious liberty of Jewish institutions,” said Rabbi David Zwiebel, Esq., the Executive Vice President of Agudath Israel of America. “Such independence allows our institutions to remain true to their beliefs and mission, and ultimately enhances their ability to serve our community.”
* A female teacher making less money than her male counterpart in a religious school.
* A mashgiach who is making less than minimum wage.
* A teacher who is fired after reporting her suspicions of child abuse. See here for an example.
* A secretary who is fired after her religious employer finds out she is married to a black person.
* A music- teacher who is fired after donating her own private money to an organization not approved by the school.
* A principal whose contract is terminated after he alerts the authorities about fraud committed by the school's financial aid department.
* A female teacher who is fired after she takes maternity leave.
For more than 25 years, people tried to deal with various Orthodox and haredi sex offenders through the beit din system. These attempts failed and these offenders abused many more children.
The attempt being made to protect the status quo is on one level an attempt to protect yeshivas and day schools from abuse scandals.
If it succeeds, if the Ministerial Exemption is upheld for janitors, clerks and teachers, Orthodox and haredi kids will be even more endangered than they already are because the exemption will be fixed in stone.