Salvation Army Case Shows Ministerial Exception is Unnecessary

A recent employment discrimination case, Rogers v. Salvation Army, demonstrates that the ministerial exception is an unnecessary legal rule. The ministerial exception is a court-created rule, affirmed by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, that dismisses lawsuits against religious employers at the mere invocation of the word minister, thus denying employees their day in court.

In non-ministerial cases, an employee files a lawsuit alleging race, gender, age or other discrimination, and the court or jury decides if she has proven her case. Some employees win those cases, and some employees lose. Proving discrimination is not easy.

In contrast, in ministerial exception cases, once the employer proves that the employee is a minister, the lawsuit is dismissed. The employee never gets her day in court. The factual record in the case is not adequately developed.

The ministerial exception allegedly keeps courts from getting involved in religious decisions. Rogers reminds us that courts are capable of resolving disputes between religious employers and employees without getting entangled in religion. Employees should be entitled to their day in court.

The Facts

Carol Rogers started working for The Salvation Army (TSA) in April 2005 as an Addictions Counselor. Starting in 2009, new supervisors gave her unsatisfactory reviews about her poor paperwork and administrative skills, complaining that Rogers didn’t keep adequate charts and records about her clients. In 2012 she received a warning notice about those administrative deficiencies. In July 2013, Rogers was transferred to a new job as Spiritual Counselor at reduced pay, and was subsequently fired in August 2013.

Rogers, a 67-year-old white female, filed charges with the Equal Employment Opportunity Commission (EEOC) alleging race, gender and age discrimination, and then filed a lawsuit alleging race and gender discrimination, as well as sexual harassment due to a hostile work environment that included offensive remarks and physical touching.

The Ministerial Exception

The United States District Court for the District of Michigan dismissed Rogers’ lawsuit under the ministerial exception because TSA is a religious organization and Rogers was a minister. The court ruled that the word “spiritual” in Rogers’ title conveyed a religious meaning and that her job involved prayer and Bible study with clients. Indeed, even her first Addictions Counselor job was ministerial, the court ruled, because she assessed clients’ spiritual needs and referred them to a chaplain.

Note that this conclusion completely avoids consideration of whether Rogers’ supervisors physically touched her, made offensive sexual comments, or dismissed her due to age or race. That is the problem with the ministerial exception. It allows the possibility that employers get away with discriminatory conduct that is not even undertaken for religious reasons without any court review.

The Merits

In an interesting decision, the district court also reviewed Rogers’ case on the merits just in case the ministerial exception didn’t apply.

The court concluded that Rogers had not provided any evidence of reverse racial discrimination by TSA or any evidence that similarly-situated African American employees were treated better than she was. The court also concluded that Rogers had presented no direct evidence of age discrimination. Moreover, TSA had produced evidence that Rogers was legitimately fired because of her inability to fulfill the administrative requirements of her job. The court believed the evidence that Rogers hadn’t adequately maintained client records.

On the sexual harassment/hostile work environment claim, the court concluded that Rogers’ allegations of a few isolated events could not prove the “severe or pervasive” environment that the law requires.

The court thus demonstrated that courts have the capacity to review religious employment discrimination claims on the merits without getting entangled in religion or treating religious employers unfairly.


Contrast the ministerial exception with a ruling on the merits. Under the ministerial exception, the case is dismissed once the court ascertains the employee is a minister. The merits are ignored.

This means that another TSA employee with different experience and different evidence, one who could prove her case of race, age or severe sexual harassment discrimination, would not get her case heard on the merits. The ministerial exception doesn’t really protect religious freedom. It just keeps employees from their day in court and shelters abusive conduct by employers.