Fifth Circuit Abandons or Modifies its Ministerial Exception Test and Dismisses Music Director's Claims

November 2, 2012

In Cannata v. Catholic Diocese of Austin, Case No. 11-51151, 2012 WL 5240836 (5th Cir. Oct. 24, 2012), the U.S. Court of Appeals for the Fifth Circuit had the first opportunity to address the ministerial exception doctrine in light of Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 132 S.Ct. 694 (2012). Doing so, the court affirmed the dismissal of a music director’s claim for violation of the Age Discrimination in Employment Act and the Americans with Disabilities Act.

Before Hosanna-Tabor, the Fifth Circuit articulated a three-factor test for determining when an employee qualifies as a minister within the meaning of the doctrine. It said the court must consider whether: (1) employment decisions regarding the position at issue are made largely on religious criteria; (2) the plaintiff was qualified and authorized to perform the ceremonies of the church; and, most importantly, (3) the employee engaged in activities traditionally considered ecclesiastical or religious, including attending to the religious needs of the faithful. But the court determined that the effect of Hosanna-Tabor was either to invalidate or modify the three-part test for two reasons: (1) Hosanna-Tabor requires a totality-of-the-circumstances analysis, rather than "rigid formula" or bright-line test; and (2) courts may not weight one factor (such as the third) over another.

In Cannata, the plaintiff argued that he had no ministerial training, was not ordained, was not a worship leader, had no direct interaction with the congregation and did not sermonize or write music. The church focused on the central role of music in the celebration of Mass and other liturgical ministry, the music minister’s unilateral selection of hymns, and piano playing during Mass and accompanying the choir. The court agreed that the music minister’s lack of formal training in Catholic doctrine was "immaterial" and found that the doctrine "does not apply only to those who are ordained." More persuasive to the court was the "important role" the music minister played in helping to "convey the church’s message and carry out its mission." The court declined to "second-guess" whom the church could "consider a lay liturgical minister under canon law."

Source: Holland & Knight, Religious Institutions Update (Nov. 2012)

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