Can a Massachusetts Religious School Refuse to Employ a Worker in a Same Sex Marriage
February 03, 2016
In Barrett v. Fontbonne Academy, the Massachusetts Superior Court curtailed various statutory and constitutional defenses available to an employer affiliated with a religious institution that faces discrimination claims under Massachusetts General Laws chapter 151B, the state’s antidiscrimination law.
Matthew Barrett applied for the job of Food Services Director at Fontbonne Academy, a Catholic preparatory school. Though Fontbonne describes its mission as “the education of young women rooted in gospel values and the teachings of the Catholic Church,” it does not limit enrollment to Catholics. In addition, Fontbonne requires only certain employees to be Catholic, namely those in its administration, theology department, and Office of Mission and Ministry. The job for which Barrett had applied was not in any of these departments.
Fontbonne held three rounds of interviews with Barrett. During the final interview, Fontbonne’s Head of School, Mary Ellen Barnes, informed him that he, like all Fontbonne employees, would be regarded as a “minister of the mission.” Barnes then told Barrett that Fontbonne would expect him to model “Catholic teaching and values” and asked him if he could “buy into that.” Barrett responded that he could.
Shortly after the final interview, Fontbonne offered Barrett the job. Barrett accepted it and filled out a new hire form on which he identified “Ed Suplee,” his “husband,” as his emergency contact. A day or two later, Fontbonne told Barrett that it would not hire him because he was in a same-sex marriage, which Fontbonne deemed to be inconsistent with the teachings of the Catholic Church, and it rescinded the job offer. Barrett subsequently brought claims for gender and sexual orientation discrimination against Fontbonne pursuant to Chapter 151B.
Fontbonne defended the claims on four distinct grounds.
1. “Because of” Sexual Orientation
The first of Fontbonne’s claims was that it did not discriminate against Barrett “because of” his sexual orientation, as required by c. 151B. Instead, the school argued that it did not hire Barrett because he was in a same-sex marriage. Fontbonne also argued that it did not hire Barrett because doing so would be inconsistent with the teachings of the church and because of Fontbonne’s policy that all employees be models for the students. The court rejected this first argument, reasoning that discrimination against an individual based on a relationship unique to members of a protected class is discrimination against the protected class. The court explained that c. 151B’s “‘because of’ language . . . refers to the discriminatory reason itself, and does not contemplate an additional inquiry into why the employer intended to discriminate.” Finally, because Fontbonne rescinded Barrett’s offer as a result of his same-sex marriage—an action it would not have taken against a woman married to a man—the court determined that Fontbonne had also discriminated on the basis of gender.
2. Exemption From State Law
Fontbonne next argued that c. 151B, § 4(18) established an exemption from Massachusetts’s antidiscrimination law for Fontbonne. Section 4(18) provides that c. 151B does not prohibit “any religious or denominational institution or organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization . . . from taking any action with respect to matters of employment . . . which are calculated by such organization to promote the religious principles for which it is established or maintained.” Section 4(18) seemingly provided Fontbonne with a meritorious defense. However, c. 151B, § 1(5), which defines “employer,” only excludes religious institutions that “limit membership, enrollment, admission, or participation to members of that religion.” The court read sections 4(18) and 1(5) together and held that only religious institutions that impose the limitation specified in section 1(5) may be exempt from c. 151B. Because Fontbonne imposed no such restriction, the exemption did not apply.
3. Expressive Association
The third argument Fontbonne advanced was that it had a First Amendment right to expressive association that “entitl[ed] it to deny Barrett employment because it views his marriage to a man as incompatible with its mission and its expectations of its employees.” Acknowledging that Fontbonne engages in expression for constitutional purposes, the court nevertheless rejected this defense. The court reasoned that hiring Barrett would not have significantly burdened the school’s expressive activities, as his job would not have involved teaching religion, the school encouraged debate on contemporary issues (including same-sex marriage) and did not prohibit students from advocating positions contrary to Catholic teachings, Barrett had never advocated that his marriage should have any religious significance in the eyes of the church, and the school had a policy prohibiting sexual-orientation discrimination. Moreover, even if hiring Barrett did stifle Fontbonne’s expressive activities, the court reasoned that prohibiting discrimination is a compelling state interest, which overrides freedom of expressive association.
4. Ministerial Exception
Finally, Fontbonne asserted it was immune from liability for discrimination suits under the “ministerial exception.” The ministerial exception is a First Amendment doctrine that bars the government from interfering with a religious organization’s relationships with its “ministers.” The court declined to apply the ministerial exception, however, because Barrett was not a “minister.” The court distinguished Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, in which the Supreme Court of the United States found that a teacher was a minister—and was therefore excepted from the provisions of the Americans with Disabilities Act—because she held the title of “Minister of the Religion, Commissioned,” had significant education and training in theology, taught religion classes, and held herself out as a minister. The superior court reasoned that, unlike the teacher in Hosanna-Tabor, Barrett would have had “no duties as an administrator or teacher of religious matters.” The court also did not give deference to Fontbonne’s statement that each of its employees is a “minister of the mission,” as doing so “would allow all religious schools to exempt all of their employees from employment discrimination laws simply by calling their employees ministers.”
There are a number of lessons that employers that are religious institutions or that are affiliated with a religious institution can learn from the Barrett case.
- An employer affiliated with a religious institution will be subject to claims of discrimination against an individual in a protected class within the meaning of c. 151B even if it takes the alleged adverse action because of deeply held religious convictions.
- Discrimination against an individual on the basis of conduct or relationships unique to members in the individual’s protected class is discrimination against the individual on the basis of his or her membership in that protected class.
- Employers affiliated with a religious institution are statutorily exempt from c. 151B only if they limit membership, enrollment, admission, or participation to members of that religion.
- The compelling state interest in preventing discrimination outweighs an employer’s expressive association rights in the course of its work.
- The application of the ministerial exception to a particular employee is a fact-intensive inquiry, so no bright-line rule can be applied.
- As Barrett shows, a Massachusetts court is likely to give little or no weight to an employer’s designation of a particular employee as a “minister” if it is inconsistent with objective facts.