As the Supreme Court gears up to hear Zubik v. Burwell and the six other consolidated cases once again challenging the Affordable Care Act’s contraceptive mandate, an important question lingers about religious employers’ potential ability to flout the mandate even if the challenge fails.  More specifically, could the “ministerial exception,” as recognized in Hosanna-Tabor v. EEOC, provide a workaround for religious nonprofits that do not wish to provide certain contraceptives to employees?

A brief primer on the ministerial exception: In Hosanna-Tabor, the Supreme Court unanimously confirmed the validity of a “ministerial exception” to employment discrimination statutes.  This exception, grounded in the First Amendment, “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.”  132 S. Ct. 694, 705 (2012).  “Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.”  Id. at 706.  Indeed, government interference in a church’s hiring and firing decisions would violate the Free Exercise Clause, which “protects a religious group’s right to shape its own faith and mission through its appointments,” as well as the Establishment Clause, which “prohibits government involvement in such ecclesiastical decisions.”  Id.

After reaffirming the principles animating the ministerial exception, the Hosanna-Tabor Court barred a former teacher from bringing a discrimination and retaliation suit against a parochial school under the Americans with Disabilities Act (ADA).  Although the teacher had taught secular subjects like math and language arts, the Court noted that she also taught a religion class and led students in daily prayer.  Id. at 700.  That she had received religious training and undergone a “formal process of commissioning” also figured into the Court’s finding that she was a minister for purposes of the exception.

Even before Hosanna-Tabor’s stamp of approval, state and lower federal courts had expansively construed the ministerial exception’s scope, broadly defining the class of employees that constitute ministers and the class of employers that constitute religious organizations.  Furthermore, courts have recognized the exception to operate not only with regard to discrimination statutes like Title VII, the ADA, and the Age Discrimination in Employment Act (ADEA), but also with regard to wage-and-hour regulations like the Fair Labor Standards Act (FLSA).

Examples of the ministerial exception’s broad reach abound: Prior to Hosanna-Tabor, the Ninth Circuit dismissed a Catholic seminarian’s suit for overtime pay under state law, Alcazar v. Catholic Archbishop of Seattle, 627 F.3d 1288 (9th Cir. 2010), while the Fourth Circuit shielded a predominantly Jewish nursing home from a kosher supervisor’s overtime-pay suit,  Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 363 F.3d 299, 306 (4th Cir. 2004).

Following Hosanna-Tabor, after an evangelical campus mission fired an employee allegedly for seeking a divorce, the ministerial exception barred her gender-discrimination suit.  Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829, 831–32 (6th Cir. 2015).  And after a seminary terminated a tenured and unordained professor, the Supreme Court of Kentucky dismissed his race-discrimination suit.  Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 605 (2014) (“Although ministerial it is in name, the exception . . . has been applied to lay employees, seminary professors, hospital workers, press secretaries, musicians, and many others.”).

The ACA’s contraception mandate: Given the breadth of the ministerial exception, could it impact the fate of religious employers and their employees in Zubik’s aftermath?

In this consolidated case, religious nonprofits argue that compliance with the ACA’s contraceptive mandate—notwithstanding the Department of Health and Human Services’ (HHS) accommodation scheme for religious nonprofits—substantially burdens their religious exercise, in violation of the Religious Freedom Restoration Act (RFRA).  Under HHS’s accommodation scheme, religious nonprofits that object to the contraceptive mandate may notify their health insurance provider or HHS of such objection.  Opting out shifts the burden of providing and paying for contraceptive coverage from religious nonprofits to insurance issuers and third-party administrators.  But religious nonprofits argue that this scheme does not alleviate the burden: because their notification “triggers” the delivery of contraceptive coverage to their employees, they remain complicit in the provision of contraceptives in violation of their religious beliefs.

Even if the religious employers lost before the Supreme Court (as they have before the Third, Fifth, Seventh, Tenth, and D.C. Circuits), they may be able to sidestep the contraceptive mandate by citing the ministerial exception and basing hiring and firing decisions on employees’ contraceptive use.  Put another way, the ministerial exception may immunize religious employers from hiring candidates based on an agreement to abstain from using certain contraceptives, or fire employees upon learning that they had accessed such contraceptives through the employers’ health plans.

Without the exception, aggrieved applicants and employees could seek protection against such employment practices under a panoply of antidiscrimination statutes: Title VII’s prohibition on sex discrimination, as well as the ADEA’s prohibition on age discrimination, would prevent employers from preferring men and women beyond their childrearing age over younger women on the ground that the former would not access certain contraceptives through employer-provided insurance.  The Pregnancy Discrimination Act of 1978, which amended Title VII, further prohibits employer “discriminat[ion] against a woman because of her capacity to become pregnant unless her reproductive potential prevents her from performing the duties of her job.”  Int’l Union, UAW v. Johnson Controls, 499 U.S. 187, 206 (1991).

But if the ministerial exception bars such suits against religious organizations, they could discriminate among employees and limit the amount of contraceptives that they must make available.  Of course, certain caveats apply.  First, not all employees within a religious organization would count as “ministers,” nor would every employer be eligible to invoke the exception.  For example, closely held, for-profit corporations like Hobby Lobby would not qualify under the exception’s current scope.

Second, federal and state privacy protections limit religious employers’ ability to access employee medical records.  The Health Insurance Portability and Accountability Act (HIPAA), for example, prohibits covered entities—namely healthcare providers, health plans, and healthcare clearinghouses—from disclosing health information to employers without employees’ consent.  Accordingly, without employee consent to share information about contraceptive usage, religious employers could require new hires to abstain, but their ability to enforce that requirement or fire based on contraceptive usage may be hindered.

HIPAA protections are not absolute, however.  Because employers themselves are not “covered entities,” workplace employment records fall beyond HIPAA even if they contain health-related information.  For instance, if an employee consented to disclose relevant information for FMLA leave or ADA accommodations, that information could remain part of her employment records, and her religious employer could make personnel decisions accordingly.  While privacy protections limit the ministerial exception’s universal application, its potential consequences remain troubling.

As Professor Fisk earlier highlighted, the current Court’s “solicitude for free exercise – as reflected in Hobby Lobby and Hosanna-Tabor” may “open[] the door to employers claiming that [RFRA] grants them the right to discriminate against women when they claim that the discrimination is religiously motivated.”  From this perspective, the ministerial exception’s potential to immunize religious employers from contravening the contraceptive mandate is only one of many ways in which religious actors’ free exercise rights may clash with the interest of sex equality in the workplace.