The "ministerial exception" is rapidly becoming a civil rights nightmare

The Ninth Circuit just handed religious employers a blueprint for gutting workplace civil rights

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An appellate court has ruled that even customer service employees at a religious organization count as “ministers,” allowing the company to fire them for religious reasons, even if normal companies doing the same thing would violate anti-discrimination laws.

The case revolves around a woman named Aubry McMahon. In the fall of 2020, she saw a job listing for an opening at World Vision, a ministry that aims to “show unconditional love to the poor and oppressed.”

The description said she could work from home, speaking with potential donors who wanted to support the group’s mission. She had all the qualifications and didn’t mind the additional requirements of having to attend “devotions, weekly Chapel services, and regular prayer,” albeit remotely.

World Vision (screenshot via YouTube)

McMahon was fully on board because she herself is Christian. She said as much in her interviews and got the job offer in January of 2021.

But at the same time, she was in a same-sex marriage. One reason she was looking for a job was that she had just gotten pregnant (via sperm donor) in the summer of 2020 and needed work she could do from a distance.

As soon as she was hired, she emailed her contact at World Vision with a relevant question:

Hey there, I just have a quick question! My wife and I are expecting our first baby in March and I wanted to see if I would qualify for any time off since I’ll be a new employee? I will be the one having the baby so I just wanted to check to see if any time would be allowed off. If not, no worries, thanks so much!

Within a couple of days, World Vision told her the job offer had been rescinded. (World Vision apparently has a rule that you can’t help the poor and oppressed if you’re gay and unashamed of it.)

McMahon sued the company, saying they violated her civil rights.

At first, a district court sided with World Vision, saying they had a right to fire her because she didn’t comply with their “Standards of Conduct.” But the judge later reversed that ruling, saying that World Vision had a “facially discriminatory hiring policy.” It was one thing to hold pastors to certain standards, but World Vision couldn’t make the same demands of low-level staffers who weren’t hired to promote the religion. In fact, the judge said that the duties of customer service reps (CSRs), such as answering calls and entering data, “demonstrate[d] that the thrust of the customer service representative position is administrative, not ministerial.”

World Vision appealed and that’s the ruling that finally came down last week from the Ninth Circuit.

In a unanimous decision, the three judges (all Democratic appointees) said that World Vision’s customer service representatives qualify as “ministers” under a rule that exempts religious organizations from following anti-discrimination laws when it comes to hiring. In other words, if they want to fire a CSR for not following their religious rules, they can do so without consequences.

When viewing CSRs’ religious functions within the context of World Vision’s mission, we hold that World Vision’s CSRs qualify for the ministerial exception because they perform “vital religious duties” at the heart of World Vision’s mission.

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… Although the execution of those responsibilities requires administrative and customer service tasks that are ubiquitous in a secular setting, CSRs also perform “vital religious duties” crucial to World Vision’s mission by explaining World Vision’s ministry, programs, and by “giv[ing] people an opportunity to join [World Vision] in the mission of God” through donations and sponsorships.

It was irrelevant, the judges added, that McMahon’s duties were “overwhelmingly secular” in nature and that the religious aspects were either universal for everyone in the company or “optional.”

While “secretaries, accountants, and custodians” could not be fired for the same reason McMahon was, they added, CSRs could indeed be held to higher religious standards based on how World Vision treated those positions as their “voice” to potential donors.

Before the Ninth Circuit ruled, Americans United for Separation of Church and State and The Sikh Coalition filed an amicus brief arguing that this was a slippery slope argument. If a customer service agent could be treated the same as a minister just because World Vision said as much, “religious entities could opt out of neutral and generally applicable employment-nondiscrimination requirements simply by stating a religious justification for their actions.”

If this Court accepts that the limited religious components of McMahon’s job qualify her as a minister, millions of employees at religious organizations could be stripped of fundamental civil rights and basic workplace protections. Employers could do an end-run around employment laws simply by writing some religious duties into otherwise secular job descriptions, turning into ministers employees who tangentially further the mission of their employers by performing only minimal religious duties.

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If endorsed by the courts, this kind of gamesmanship could leave millions of workers without basic legal protections at work. Consider receptionists, help-line employees, and call-center workers—all individuals in customer-service positions with public-facing jobs that may be directed to communicate the religious mission of their employer to callers. If World Vision had its way, these employees would no longer receive protection from discriminatory hiring and firing decisions. By simply requiring all employees to attend weekly chapel, occasionally lead team devotionals, or answer questions about the organization on the phone, religious employers could defeat employment-discrimination claims.

It’s a fair point. What’s stopping World Vision from saying, for example, that their custodians help their present a cleaner face of Christ to the world at large, therefore those positions are not protected under anti-discrimination laws?

Unfortunately, that argument was ignored by the Ninth Circuit. Religious organizations have now been handed a powerful loophole that they can use to circumvent laws they don’t like.

Rachel Laser, president of Americans United for Separation of Church and State, said Tuesday’s ruling was “part of a dangerous trend: A network of conservative legal activists and religious organizations is urging courts to expand a narrow, commonsense rule — meant to allow houses of worship to select clergy according to their faith traditions — into a broad license to discriminate and circumvent civil rights laws.”

And McMahon’s lawyer, Michael Subit, said the ruling “may be only a small tear in the fabric of anti-discrimination law but we fear that religious employers will in the future try to expand it to a giant hole.”

I share their concerns. By stretching the “ministerial exception” to cover even rank-and-file customer service reps, the Ninth Circuit has signaled that religious organizations can rewrite job descriptions with just enough holy-sounding language to strip workers of civil rights protections. There’s nothing stopping them from telling secretaries and accountants that they have to say a prayer here and lead a devotional there, turning all of them into de facto “ministers.”

This isn’t about religious freedom. It’s a license to discriminate camouflaged by scripture.

(This isn’t even the first time World Vision has been mired in controversy when it comes to same-sex marriage. In 2014, World Vision U.S. announced that Christians who are in legal same-sex marriages could be employed with the organization. But after two days of intense backlash from conservatives who didn’t give a damn about helping people in poverty if it meant hiring married gay Christians, the company backtracked and insisted it would continue to be a pro-bigotry group. Can’t have donors running around thinking the group is tolerant, can we?)

Barring further appeal, which seems unlikely, the law now leaves millions of Americans vulnerable to bigotry in the workplace, at least if their paycheck comes from a religiously aligned employer. Today it’s customer service reps; tomorrow it could be receptionists, IT staff, or cafeteria workers. The precedent here is devastating. Civil rights protections can now be dissolved, not by an act of Congress, but by the stroke of an HR pen in the name of religion. Why even call it a ministerial “exception” when it’s quickly becoming the rule?

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