                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                 File Name: 10a0065p.06

              UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                                  X
                                                   -
 EQUAL EMPLOYMENT OPPORTUNITY

                Plaintiff-Appellant (09-1134), --
 COMMISSION,

                                                   -
                                                       Nos. 09-1134/1135

                                                   ,
                                                    >
     Intervenor Plaintiff-Appellant (09-1135), -
 CHERYL PERICH,

                                                   -
                                                   -
                                                   -
           v.
                                                   -
                                                   -
                                                   -
 HOSANNA-TABOR EVANGELICAL LUTHERAN

                          Defendant-Appellee. -
 CHURCH AND SCHOOL,
                                                   -
                                                  N
                    Appeal from the United States District Court
                   for the Eastern District of Michigan at Detroit.
                 No. 07-14124—Patrick J. Duggan, District Judge.
                               Argued: October 6, 2009
                          Decided and Filed: March 9, 2010
                  Before: GUY, CLAY, and WHITE, Circuit Judges.

                                 _________________

                                      COUNSEL
ARGUED: Dori K. Bernstein, U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, Washington, D.C., James E. Roach, VERCRUYSSE MURRAY &
CALZONE PC, Bingham Farms, Michigan, for Appellants. Deano C. Ware, DEANO C.
WARE, P.C., Redford, Michigan, for Appellee. ON BRIEF: Dori K. Bernstein, U.S.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C., James E.
Roach, VERCRUYSSE MURRAY & CALZONE PC, Bingham Farms, Michigan, for
Appellants. Deano C. Ware, DEANO C. WARE, P.C., Redford, Michigan, for Appellee.
        CLAY, J., delivered the opinion of the court, in which GUY, J., joined. WHITE, J.
(pp. 19-22), delivered a separate concurring opinion.




                                           1
Nos. 09-1134/1135         EEOC, et al. v. Hosanna-Tabor                               Page 2
                          Evangelical Lutheran Church


                                    _________________

                                        OPINION
                                    _________________

        CLAY, Circuit Judge. Plaintiffs, Equal Employment Opportunity Commission
(“EEOC”) and Cheryl Perich, appeal from the district court’s order granting summary
judgment in favor of Defendant Hosanna-Tabor Evangelical Lutheran Church and School
(“Hosanna-Tabor”) in this action alleging discrimination in violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12117(a) (the “ADA”). For the reasons set forth
below, we VACATE the district court’s order and REMAND the case for further
proceedings consistent with this opinion.

                                     BACKGROUND

        This case arises out of Perich’s employment relationship with Hosanna-Tabor, which
terminated Perich from her teaching position on April 11, 2005. Hosanna-Tabor, an
ecclesiastical corporation affiliated with the Lutheran Church-Missouri Synod (the
“LCMS”), operates a church and school in Redford, Michigan. The school teaches
kindergarten through eighth grades. The faculty consists of two types of teachers: (1) “lay”
or “contract” teachers, and (2) “called” teachers. Contract teachers are hired by the Board
of Education for one-year renewable terms of employment. Called teachers are hired by the
voting members of the Hosanna-Tabor church congregation upon the recommendation of the
Board of Education, Board of Elders, and Board of Directors. Called teachers are hired on
an open-ended basis and cannot be summarily dismissed without cause. They can also apply
for a housing allowance on their income taxes provided that they are conducting activities
“in the exercise of the ministry.” (Dist. Ct. R.E. 25 Ex. Q).

        To be eligible for a “call,” a teacher must complete the colloquy classes required by
the LCMS, which focus on various aspects of the Christian faith. After completing the
colloquy, a teacher receives a certificate of admission into the teaching ministry, and the
Michigan District of the LCMS places the teacher’s name on a list that can be accessed by
schools that need teachers. Once selected by a congregation, a called teacher receives the
title of “commissioned minister.”
Nos. 09-1134/1135         EEOC, et al. v. Hosanna-Tabor                               Page 3
                          Evangelical Lutheran Church


        In July 1999, Hosanna-Tabor hired Perich as a contract teacher to teach kindergarten
on a one year contract from August 15, 1999 to June 15, 2000. After Perich completed the
required colloquy classes at Concordia College in February 2000, Hosanna-Tabor hired
Perich as a called teacher on March 29, 2000. Perich continued teaching kindergarten until
the end of the 2002-2003 year. She taught fourth grade during the 2003-2004 school year,
and she was assigned to teach third and fourth grades for the 2004-2005 school year. From
the time she was hired as a called teacher until her termination, Perich was listed as a
commissioned minister in the LCMS. At least once during her tenure, Perich claimed the
housing allowance on her income taxes.

        After Perich was hired as a called teacher, her employment duties remained identical
to the duties she performed as a contract teacher. Perich taught math, language arts, social
studies, science, gym, art, and music. Language arts instruction included reading, English,
spelling, and handwriting. Music instruction included secular music theory and playing the
recorder, using the same music book as the local public school. During the 2003-2004
school year, Perich taught computer training as well.

        Perich also taught a religion class four days per week for thirty minutes, and she
attended a chapel service with her class once a week for thirty minutes. Approximately
twice a year, Perich led the chapel service in rotation with other teachers. Perich also led
each class in prayer three times a day for a total of approximately five or six minutes.
During her final year at Hosanna-Tabor, Perich’s fourth grade class engaged in a devotional
for five to ten minutes each morning. In all, activities devoted to religion consumed
approximately forty-five minutes of the seven hour school day.

        Hosanna-Tabor’s website indicates that the school provides a “Christ-centered
education” that helps parents by “reinforcing bible principals [sic] and standards.” Hosanna-
Tabor describes its staff members as “fine Christian role models who integrate faith into all
subjects.” Perich valued the freedom a sectarian school afforded to “bring God into every
subject taught in the classroom.” (Dist. Ct. R.E. 37 Ex. 1 ¶ 23). However, Perich taught
secular subjects using secular textbooks commonly used in public schools, and she can only
recall two instances in her career when she introduced religion into secular subjects.
Nos. 09-1134/1135         EEOC, et al. v. Hosanna-Tabor                               Page 4
                          Evangelical Lutheran Church


        Furthermore, Hosanna-Tabor does not require teachers to be called or even Lutheran.
Non-Lutheran teachers have identical responsibilities as Lutheran teachers, including
teaching religion classes and leading chapel service. Members of the custodial staff and at
least one teacher who worked at Hosanna-Tabor were not Lutheran.

        At a church golf outing in June 2004, Perich suddenly became ill and was taken to
the hospital. She underwent a series of medical tests to determine the cause. Perich’s
doctors had not reached a definitive diagnosis by August, and Hosanna-Tabor administrators
suggested that Perich apply for a disability leave of absence for the 2004-2005 school year.
The principal of Hosanna-Tabor, Stacy Hoeft, informed Perich that she would “still have a
job with [Hosanna-Tabor]” when she regained her health. (Dist. Ct. R.E. 24 Ex. 6). Perich
agreed to take a disability leave and did not return to work at the beginning of the 2004-2005
school year. Throughout her leave, Perich regularly provided Hoeft with updates about her
condition and progress.

        On December 16, 2004, Perich informed Hoeft by email that her doctor had
confirmed a diagnosis of narcolepsy and that she would be able to return to work in two to
three months once she was stabilized on medication. On January 19, 2005, Hoeft asked
Perich to begin considering and discussing with her doctor what she might be able to do
upon return. Perich responded the same day that she had discussed her work day and
teaching responsibilities with her doctor, and he had assured her that she would be fully
functional with the assistance of medication. Perich reiterated this sentiment with additional
explanation on January 21, 2005.

        Also on January 21, 2005, Hoeft informed Perich that the school board intended to
amend the employee handbook to request that employees on disability for more than six
months resign their calls to allow Hosanna-Tabor to responsibly fill their positions. Such
resignations would not necessarily prevent reinstatement of these employees’ calls upon their
return to health. Perich had been on disability for more than five months when she received
this email.

        On January 27, 2005, Perich wrote to Hoeft that she would be able to return to work
between February 14 and February 28, 2005. Hoeft responded with surprise, because Perich
Nos. 09-1134/1135             EEOC, et al. v. Hosanna-Tabor                                       Page 5
                              Evangelical Lutheran Church


had indicated a few days before that she had been unable to complete her disability forms
because of her condition. Hoeft expressed concern that Perich’s condition would jeopardize
the safety of the students in her care. Hoeft also indicated that Perich would not be teaching
the third and fourth grades upon return, because the substitute teacher had a contract that ran
                                         1
through the end of the school year. Furthermore, she indicated that the third and fourth
grade students had already had two teachers that year and having a third would not
provide a good learning environment for them.

          Three days later, at the annual congregational “shareholder” meeting, Hoeft and
the school board expressed their opinion that it was unlikely that Perich would be
physically capable of returning to work that school year or the next. Consequently, the
congregation adopted the Board’s proposal to request that Perich accept a peaceful
release agreement wherein Perich would resign her call in exchange for the congregation
paying for a portion of her health insurance premiums through December 2005. On
February 7, 2005, the Board selected Chairman Scott Salo to discuss this proposal with
Perich.

          On February 8, 2005, Perich’s doctor gave her a written release to return to work
without restrictions on February 22, 2005. The next day Salo contacted Perich to discuss
her employment. Perich instead requested to meet with the entire school board. At the
meeting on February 13, 2005, the Board presented the peaceful release proposal, and
Perich responded by presenting her work release note. The Board continued to express
concerns about Perich’s ability to supervise students for the entire day. Perich explained
that, as of her doctor’s release on February 22, 2005, she would no longer be eligible for
disability coverage and would be required to return to work. The Board, however,
continued to request that Perich resign and asked her to respond to the peaceful release
proposal by February 21, 2005.


          1
           In November 2004, the Board of Directors began making plans to fill Perich’s position. The
Board first decided to combine three grades into one classroom with one teacher and one part time teaching
assistant. In response to teacher and parent complaints concerning the stress of teaching three grades with
one teacher, the Board hired a long-term substitute for Perich. Hoeft notified Perich of the Board’s
decision on January 10, 2005.
Nos. 09-1134/1135        EEOC, et al. v. Hosanna-Tabor                             Page 6
                         Evangelical Lutheran Church


       Shortly after 9:00 p.m. on February 21, 2005, Perich emailed Hoeft to confirm
that she had decided not to resign from her position and that she planned to return to
work in the morning. When Perich reported to work on February 22, 2005, the school
did not have a job for her. Because the school handbook states that failure to return to
work on the first day following the expiration of an approved medical leave may be
considered a voluntary termination, Perich refused to leave school grounds until she
received a letter acknowledging that she appeared for work. Perich received a letter
signed by Hoeft and Salo, which said that Perich had provided improper notification of
her return to work and asked that she continue her leave to allow the congregation a
chance to develop a possible plan for her return. Perich took the letter and left the
premises.

       Later that day, Perich spoke with Hoeft over the phone. Hoeft told Perich that
she would likely be fired, and Perich told Hoeft that she would assert her legal rights
against discrimination if they were unable to reach a compromise. Perich asked Hoeft
to transmit that information to the Board. Perich also sent Hoeff an email stating that
her doctor had reaffirmed that she was healthy and ready to return to work. Following
the Board’s meeting on February 22, 2005, Salo sent Perich a letter describing Perich’s
conduct as “regrettable” and indicating that the Board would review the process of
rescinding her call based on her disruptive behavior. (Dist. Ct. R.E. 22 Ex. B).

       On March 19, 2005, Salo sent Perich a follow-up letter stating that, based on
Perich’s insubordination and disruptive behavior on February 22, 2005, the Board would
request rescinding Perich’s call at the next voter’s meeting on April 10, 2005. The letter
also stated that Perich had “damaged, beyond repair” her working relationship with
Hosanna-Tabor by “threatening to take legal action,” and it laid out the voting procedure
by which the congregation could depose a called minister. (Dist. Ct. R.E. 24 Ex. 1).
Finally, the letter again proposed the peaceful release offer and gave Perich until April
8, 2005 to accept the offer.
Nos. 09-1134/1135       EEOC, et al. v. Hosanna-Tabor                               Page 7
                        Evangelical Lutheran Church


       On March 21, 2005, Perich’s lawyer sent a letter to Hosanna-Tabor’s lawyer
stating that Hosanna-Tabor’s actions amounted to unlawful discrimination. The letter
asked Hosanna-Tabor to respond seeking an amicable resolution to the matter, or else
Perich would be forced to bring a lawsuit or file a complaint with the EEOC. On April
10, 2005, the congregation voted to rescind Perich’s call. The next day, Salo informed
Perich of her termination.

       On May 17, 2005, Perich filed a charge of discrimination and retaliation with the
EEOC alleging that Hosanna-Tabor had discriminated and retaliated against her in
violation of her rights under the ADA. On September 28, 2007, the EEOC filed a
complaint against Hosanna-Tabor in the United States District Court for the Eastern
District of Michigan alleging one count of retaliation in violation of the ADA. Perich
moved to intervene on March 11, 2008; she was granted leave and filed her own
complaint on April 10, 2008, which added a cause of action under Michigan’s Persons
with Disabilities Civil Rights Act, M.C.L. §37.1201(b) (the “PDCRA”). Perich and
Hosanna-Tabor each filed motions for summary judgment on July 15, 2008. On October
23, 2008, the district court granted summary judgment in favor of Hosanna-Tabor,
dismissing the claim on the grounds that the court could not inquire into her claims of
retaliation because they fell within the “ministerial exception” to the ADA. Perich
timely sought reconsideration pursuant to Federal Rule of Civil Procedure 59(e) on
November 6, 2008, which was denied on December 3, 2008. Perich and the EEOC
timely filed notices of appeal on January 30, 2009.

                                    DISCUSSION

I. Standard of Review

       This Court reviews de novo a district court’s order of dismissal for lack of subject
matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). See Hollins v.
Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007) (citing Moir v. Greater
Cleveland Reg’l Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990)). Although the district
court issued its decision in the context of a summary judgment motion, the court
Nos. 09-1134/1135            EEOC, et al. v. Hosanna-Tabor                                        Page 8
                             Evangelical Lutheran Church


dismissed Perich’s claim based on a lack of subject matter jurisdiction and did not reach
the merits of the claim. In addition, this Circuit has treated the “ministerial exception”
as jurisdictional in nature and an appropriate ground for a motion to dismiss pursuant to
Rule 12(b)(1). See id. See also Rweyemamu v. Cote, 520 F.3d 198, 206 (2d Cir. 2008)
(noting that the circuits have taken different approaches in applying the ministerial
exception, with the Third, Tenth, Ninth, and First Circuits treating the exception as an
affirmative defense under Rule 12(b)(6),2 the Sixth and Seventh Circuits interpreting the
exception as jurisdictional under Rule 12(b)(1),3 and the Eleventh and Fifth Circuits
treating it as a mandate to interpret the discrimination laws not to apply to claims
between ministers and their churches4). Accordingly, this Court should review the claim
using the same analysis as it does for an order entered pursuant to Rule 12(b)(1).

         In response to a Rule 12(b)(1) motion, the plaintiff bears the burden of proving
jurisdiction. Hollins, 474 F.3d at 225. Furthermore, “unlike Rule 12(b)(6) analysis,
under which the existence of genuine issues of material fact warrants denial of the
motion to dismiss, ‘the court is empowered to resolve factual disputes when subject
matter jurisdiction is challenged.’” Id. (quoting Moir, 895 F.2d at 269). If the district
court makes its jurisdictional ruling based on the resolution of both legal and factual
disputes, this Court reviews the legal findings under a de novo standard and the factual
findings under a clearly erroneous standard. See Gordon v. Gorno Bros., Inc., 410 F.3d
879, 881 (6th Cir. 2005); RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125,
1135 (6th Cir. 1996).




         2
          See, e.g., Petruska v. Gannon Univ., 462 F.3d 294, 302 (3d Cir. 2006); Bryce v. Episcopal
Church in the Diocese, 289 F.3d 648, 654 (10th Cir. 2002); Bollard v. Cal. Province of the Soc’y of Jesus,
196 F.3d 940, 951 (9th Cir. 1999); Natal v. Christian & Missionary Alliance, 878 F.2d 1575, 1578 (1st Cir.
1989).
         3
           See. e.g., Hollins, 474 F.3d at 225; Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1039
(7th Cir. 2006).
         4
           See, e.g., Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1302-04
(11th Cir. 2000); McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972).
Nos. 09-1134/1135            EEOC, et al. v. Hosanna-Tabor                                     Page 9
                             Evangelical Lutheran Church


        Perich argues that no facts relevant to the determination of subject matter
jurisdiction were in dispute and, thus, this Court should review de novo all of the district
court’s findings. Hosanna-Tabor argues the district court made a number of factual
findings in determining that the court had no subject matter jurisdiction, including
Hosanna-Tabor’s status as a “religious institution” and Perich’s status as a “minister”
and “ministerial employee.” Thus, according to Hosanna-Tabor, this Court should
review these factual findings under the clearly erroneous standard.

        The district court made both factual and legal findings in determining whether
the court had subject matter jurisdiction. The district court’s determinations concerning
Perich’s primary duties throughout her work day were factual. Accordingly, this Court
must accept these factual findings unless they are clearly erroneous. See EEOC v. Sw.
Baptist Theological Seminary, 651 F.2d 277, 283 (5th Cir. 1981) (indicating that the
district court’s factual findings in support of its decision of which employees are
ministers “must be accepted unless clearly erroneous”). However, its decision as to
whether Perich classified as a ministerial employee remains a legal conclusion subject
to de novo review. See Starkman v. Evans, 198 F.3d 173, 176 (5th Cir. 1999) (“[t]he
status of employees as ministers . . . remains a legal conclusion for this court”).

II. The ADA’s Application to Religious Organizations

        The ADA generally prohibits an employer with fifteen or more employees from
discriminating against a qualified individual with a disability on the basis of that
disability in regard to all conditions of employment. See 42 U.S.C. § 12111(5),
§ 12112(a).       The retaliation provision of the ADA prohibits employers from
“discriminat[ing] against any individual because such individual has opposed any act or
practice made unlawful by [the ADA] or because such individual made a charge . . .
under [the ADA].”          42 U.S.C. § 12203(a).5            Title I of the ADA includes an

        5
           Perich also brought a claim under the PDCRA, a Michigan law which essentially tracks the
ADA. Resolution of a plaintiff’s ADA claim would generally resolve her PDCRA claim as well. See
Cassidy v. Detroit Edison Co., 138 F.3d 629, 634 n.3 (6th Cir. 1998). In view of how closely the anti-
retaliation provision of the PDCRA tracks the anti-retaliation provision of the ADA, resolving Perich’s
ADA claim also resolves her PDRCA claim.
Nos. 09-1134/1135          EEOC, et al. v. Hosanna-Tabor                           Page 10
                           Evangelical Lutheran Church


exception–known as the “ministerial exception”–which allows religious entities to give
“preference in employment to individuals of a particular religion” and to “require that
all applicants and employees conform to the religious tenants of such organization.”
42 U.S.C. § 12113(d).

        However, the legislative history makes clear that Congress intended the ADA to
broadly protect employees of religious entities from retaliation on the job, subject only
to a narrowly drawn religious exemption. The House Report provides the following
illustrative hypothetical example:

        [A]ssume that a Mormon organization wishes to hire only Mormons to
        perform certain jobs. If a person with a disability applies for the job, but
        is not a Mormon, the organization can refuse to hire him or her.
        However, if two Mormons apply for a job, one with a disability and one
        without a disability, the organization cannot discriminate against the
        applicant with the disability because of that person’s disability.

H.R. Rep. No. 485 part 2, 101st Cong., 2d Sess. 76-77 (1990). See also 29 C.F.R. Pt.
1630, App. § 1630.16(a) (“Religious organizations are not exempt from title I of the
ADA or [these regulations]. A religious [entity] may give a preference in employment
to individuals of the particular religion, and may require that applicants and employees
conform to the religious tenants of the organization. However, a religious organization
may not discriminate against an individual who satisfies the permitted religious criteria
because that individual is disabled. The religious entity, in other words, is required to
consider qualified individuals with disabilities who satisfy the permitted religious
criteria on an equal basis with qualified individuals without disabilities who similarly
satisfy the religious criteria.”).

III. The Ministerial Exception

        The ministerial exception is rooted in the First Amendment’s guarantees of
religious freedom. Hollins, 474 F.3d at 225.
Nos. 09-1134/1135          EEOC, et al. v. Hosanna-Tabor                               Page 11
                           Evangelical Lutheran Church


        A. Interference in Church Governance

        As applied by this Circuit, the doctrine “precludes subject matter jurisdiction
over claims involving the employment relationship between a religious institution and
its ministerial employees, based on the institution’s constitutional right to be free from
judicial interference in the selection of those employees.” Id. See generally Serbian E.
Orthodox Diocese for the United States & Can. v. Milivojevic, 426 U.S. 696, 96 S. Ct.
2372, 49 L. Ed. 2d 151 (1976); Lewis v. Seventh Day Adventists Lake Region
Conference, 978 F.2d 940 (6th Cir. 1992).

        As the Fifth Circuit noted in McClure v. Salvation Army, one of the first cases
to analyze the ministerial exception, “[t]he relationship between an organized church and
its ministers is its lifeblood. The minister is the chief instrument by which the church
seeks to fulfill its purpose.” 460 F.2d at 558-59. See also Rayburn v. Gen. Conference
of Seventh-Day Adventists, 772 F.2d 1164, 1167-68 (4th Cir. 1985) (“The right to choose
ministers without government restriction underlies the well-being of religious
community . . . for perpetuation of a church’s existence may depend upon those whom
it selects to preach its values, teach its message, and interpret its doctrine both to its own
membership and to the world at large.”).

        While the ministerial exception was first applied in the context of suits brought
against religious employers under Title VII, see McClure, 460 F.2d at 560, the exception
has been extended to suits brought against religious employers under the ADA.6 See,
e.g., Hollins, 474 F.3d at 225; Werft v. Desert Sw. Annual Conference of United
Methodist Church, 377 F.3d 1099, 1100 (9th Cir. 2004); Starkman, 198 F.3d at 175.

        For the ministerial exception to bar an employment discrimination claim, two
factors must be present: (1) the employer must be a religious institution, and (2) the
employee must be a ministerial employee. Hollins, 474 F.3d at 225.



        6
        Courts have also extended the ministerial exception to suits brought under the ADEA, the
common law, and state law. See Hollins, 474 F.3d at 225 (citing cases).
Nos. 09-1134/1135            EEOC, et al. v. Hosanna-Tabor                                     Page 12
                             Evangelical Lutheran Church


         To qualify as a religious institution under the first prong, the employer need not
be a traditional religious organization, such as a church, diocese, or synagogue, nor must
it be an entity operated by a traditional religious organization. Id. Rather, a religiously
affiliated entity is considered a religious institution if its “mission is marked by clear or
obvious religious characteristics.” Id. at 226 (citing Shaliehsabou v. Hebrew Home of
Greater Wash., Inc., 363 F.3d 299, 310 (4th Cir. 2004)). This Circuit has applied the
ministerial exception to a religiously affiliated hospital, and it has explicitly approved
of applying the doctrine to religiously affiliated schools and corporations. Id. at 225.

         To determine whether an employee is ministerial under the second prong, this
Circuit has instructed courts to look at the function, or “primary duties” of the
employee.7 Id. at 226 (applying the exception to a resident in a Methodist Hospital’s
clinical pastoral education program). As a general rule, an employee is considered a
minister if “the employee’s primary duties consist of teaching, spreading the faith,
church governance, supervision of a religious order, or supervision or participation in
religious ritual and worship.” Id. (quoting Bruce N. Bagni, Discrimination in the Name
of the Lord: A Critical Evaluation of Discrimination by Religious Organizations, 79
COLUM. L. REV. 1514, 1545 (1979)). See also Rayburn, 772 F.2d at 1169. In
extending the ministerial exception beyond ordained ministers, this Circuit has instructed
courts to look at the function of the plaintiff’s employment position rather than the fact
of ordination. Hollins, 474 F.3d at 226. Other circuits have further instructed that courts
must “determine whether a position is important to the spiritual and pastoral mission of
the church.” See, e.g., Rayburn, 772 F.2d at 1169.

         The parties in the instant case do not dispute that “religious institutions” include
religiously affiliated schools and that Hosanna-Tabor meets this requirement. Thus, the




         7
          At least one other circuit has found that this approach is too rigid, adopting a standard that
considers both the employee’s primary function and the nature of the dispute to determine whether
analyzing the claim would entangle the court in religious doctrinal disputes. Rweyemamu, 520 F.3d at 208.
However, this Circuit has adopted a standard that focuses on the primary duties of the employee to
determine whether that employee should be classified as ministerial. See Hollins, 474 F.3d at 226.
Nos. 09-1134/1135        EEOC, et al. v. Hosanna-Tabor                             Page 13
                         Evangelical Lutheran Church


first requirement under the ministerial exception is present, and the primary issue is
whether Perich served as a ministerial employee.

        The question of whether a teacher at a sectarian school classifies as a ministerial
employee is one of first impression for this Court. However, the overwhelming majority
of courts that have considered the issue have held that parochial school teachers such as
Perich, who teach primarily secular subjects, do not classify as ministerial employees for
purposes of the exception. See, e.g., Redhead v. Conference of Seventh Day Adventists,
440 F. Supp. 2d 211, 221-222 (E.D.N.Y. 2006) (holding that a teacher at a Seventh Day
Adventist elementary school does not classify as a ministerial employee because her
teaching duties were primarily secular and her daily religious duties “were limited to
only one hour of Bible instruction per day”); Guinan v. Roman Catholic Archdiocese of
Indianapolis, 42 F. Supp. 2d 849, 854 (S. D. Ind. 1998) (holding that a fifth grade
teacher who taught at least one class in religion per term and organized Mass once a
month at a religious elementary school was not a ministerial employee); DeMarco v.
Holy Cross High Sch., 4 F.3d 166, 172 (2d Cir. 1993) (holding that applying the ADEA
to a math teacher at a religious high school would not result in excessive entanglement
under the Establishment Clause); Dole v. Shenandoah Baptist Church, 899 F.2d 1389,
1392, 1397 (4th Cir. 1990) (holding that teachers at a religious school who integrated
biblical material into traditional academic subjects should be considered lay teachers for
purposes of the ministerial exception); EEOC v. Fremont Christian Sch., 781 F.2d 1362,
1370 (9th Cir. 1986) (holding that teachers at a church owned and operated school do
not fulfill the function of a ministerial employee). But see Clapper v. Chesapeake
Conference of Seventh Day Adventists, No. 97 CV 2648, 1998 WL 904528, at *1, 7
(Dec. 29, 1998) (holding that a former elementary school teacher at a school whose
primary purpose was the salvation of each student’s soul through indoctrination into
Seventh Day Adventist theological beliefs classified as a ministerial employee).

        By contrast, when courts have found that teachers classify as ministerial
employees for purposes of the exception, those teachers have generally taught primarily
religious subjects or had a central role in the spiritual or pastoral mission of the church.
Nos. 09-1134/1135        EEOC, et al. v. Hosanna-Tabor                            Page 14
                         Evangelical Lutheran Church


See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455, 463-65 (D.C. Cir. 1996) (holding
that a nun whose primary duties were to teach canonical law at Catholic University and
who was “entrusted with instructing students in the ‘fundamental body of ecclesiastical
laws’ that governs the Church’s sacramental life, defines the rights and duties of its
faithful and the responsibilities of their pastors, and guides its administration” was a
ministerial employee); Sw. Baptist, 651 F.2d at 283-84 (holding that seminary faculty
were ministerial employees given that they served as “intermediaries between the
[Baptist] Convention and the future ministers of many local Baptist churches,”
“instructed the seminarians in the ‘whole of religious doctrine,’ and [taught] only
religious oriented courses”).

       The district court’s factual determinations concerning Perich’s primary duties
throughout her work day were not clearly erroneous. The record supports the finding
that Perich’s employment duties were identical when she was a contract teacher and a
called teacher and that she taught math, language arts, social studies, science, gym, art,
and music using secular textbooks. Furthermore, the record indicates that Perich taught
a religion class four days per week for thirty minutes and that she attended a chapel
service with her class once a week for thirty minutes. Perich also led each class in
prayer three times a day for a total of approximately five or six minutes. The record also
indicates that Perich seldom introduced religion during secular discussions.
Approximately twice a year, Perich led the chapel service in rotation with other teachers.
However, teachers leading chapel or teaching religion were not required to be called or
even Lutheran, and, in fact, at least one teacher was not. In all, the record supports the
district court’s finding that activities devoted to religion consumed approximately forty-
five minutes of the seven hour school day.

       However, given these factual findings relating to Perich’s primary duties, the
district court erred in its legal conclusion classifying Perich as a ministerial employee.
Perich spent approximately six hours and fifteen minutes of her seven hour day teaching
secular subjects, using secular textbooks, without incorporating religion into the secular
material. Cf. Clapper, 1998 WL 904528, at *2 (finding that an elementary school
Nos. 09-1134/1135            EEOC, et al. v. Hosanna-Tabor                                    Page 15
                             Evangelical Lutheran Church


teacher’s primary duties were religious where he taught the Bible’s story of creation in
science class and the influence of religion on the events of history in social studies
class). Thus, it is clear that Perich’s primary function was teaching secular subjects, not
“spreading the faith, church governance, supervision of a religious order, or supervision
or participation in religious ritual and worship.” Hollins, 474 F.3d at 226. (internal
citation omitted) See also EEOC v. Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980) (“The
College’s faculty and staff do not function as ministers. The faculty members are not
intermediaries between a church and its congregation. They neither attend to the
religious needs of the faithful nor instruct students in the whole of religious doctrine.”).

         The fact that Perich participated in and led some religious activities throughout
the day does not make her primary function religious. See Guinan, 42 F. Supp. 2d at 852
(finding that although the teacher did participate in some religious activities, “it cannot
be fairly said that she functioned as a minister or a member of the clergy”). This is
underscored by the fact that teachers were not required to be called or even Lutheran to
conduct these religious activities, and at least one teacher at Hosanna-Tabor was not
Lutheran. See at 852-53 (“the secular nature of [the teacher’s] position is underscored
by the fact that [the church] did not require teachers at [the school] to be Catholic, and,
as a matter of fact, some were not Catholic”).

         In addition, that Hosanna-Tabor has a generally religious character–as do all
religious schools by definition–and characterizes its staff members as “fine Christian
role models” does not transform Perich’s primary responsibilities in the classroom into
religious activities. See Miss. Coll., 626 F.2d at 485 (“That faculty members are
expected to serve as exemplars of practicing Christians does not serve to make the terms
and conditions of their employment matters of church administration and thus purely of
ecclesiastical concern.”). This is underscored by the fact that Perich can only recall
twice in her career when she introduced the topic of religion during secular discussions.8


         8
          While Defendant cites a quote from Perich in which she says that the educational ministry is
special “because the teacher can bring God into every subject,” the record supports the district court’s
finding that only twice did Perich bring religion into otherwise secular subjects.
Nos. 09-1134/1135        EEOC, et al. v. Hosanna-Tabor                            Page 16
                         Evangelical Lutheran Church


Cf. Clapper, 1998 WL 904528, at *7 (finding that an elementary school teacher’s
primary duties were religious where the academic curriculum in traditionally secular
subjects “incorporate[d] the teachings of the Seventh-day Adventist Church whenever
possible”). Similarly, Perich’s extra religious training as a result of completing her
colloquy did not affect the duties she performed in the classroom on a daily basis. See
Guinan, 42 F. Supp. 2d at 850 (finding that a teacher whose training as a Catechist
permitted her to teach religion classes was not a ministerial employee).

       In finding that Perich was a ministerial employee, the district court relied largely
on the fact that Hosanna-Tabor gave Perich the title of commissioned minister and held
her out to the world as a minister by bestowing this title upon her. However, the title of
commissioned minister does not transform the primary duties of these called teachers
from secular in nature to religious in nature. See Sw. Baptist, 651 F.2d at 285 (holding
that certain employees, “though considered ministers by the Seminary, are not ministers”
under the ministerial exception). The governing primary duties analysis requires a court
to objectively examine an employee’s actual job function, not her title, in determining
whether she is properly classified as a minister. In this case, it is clear from the record
that Perich’s primary duties were secular, not only because she spent the overwhelming
majority of her day teaching secular subjects using secular textbooks, but also because
nothing in the record indicates that the Lutheran church relied on Perich as the primary
means to indoctrinate its faithful into its theology. See Clapper, 1998 WL 904528, at
*7 (warning that courts should examine not only the relative quantity of time an
employee spends on religious versus secular activities, but also “the degree of the church
entity’s reliance upon such employee to indoctrinate persons into its theology”). By
contrast, in Clapper, the defendant schools envisioned their teachers as having a
primarily religious role. The teachers were required to be “tithe paying members of the
Seventh-day Adventist Church and are expected to participate in church activities,
programs, and finances.” See Clapper, 1998 WL 904528, at *2. The Fourth Circuit
observed that “[t]he purpose of this requirement is obvious–the Chesapeake Conference
Nos. 09-1134/1135        EEOC, et al. v. Hosanna-Tabor                             Page 17
                         Evangelical Lutheran Church


desires to insure that the minds of its youth are shaped by model members of the
Seventh-day Adventist faith.” Id. at *7.

        Furthermore, the district court in the instant case found that the primary duties
of called teachers are identical to those of contract teachers, who do not have the title of
minister, and at least one contract teacher who taught at the school was not Lutheran.
Given the undisputed evidence that all teachers at Hosanna-Tabor were assigned the
same duties, a finding that Perich is a “ministerial” employee would compel the
conclusion that all teachers at the school–called, contract, Lutheran, and non-
Lutheran–are similarly excluded from coverage under the ADA and other federal fair
employment laws. However, the intent of the ministerial exception is to allow religious
organizations to prefer members of their own religion and adhere to their own religious
interpretations. Thus, applying the exception to non-members of the religion and those
whose primary function is not religious in nature would be both illogical and contrary
to the intention behind the exception.

        B. Interpretation of Church Doctrine

        In addition to being motivated by the concern of government interference in
church governance, the ministerial exception is also motivated by the concern “that
secular authorities would be involved in evaluating or interpreting religious doctrine.”
Tomic, 442 F.3d at 1039 (quoting Combs v. Central Texas Annual Conference of United
Methodist Church, 173 F.3d 343, 350 (5th Cir. 1999)).

        In the instant case, Hosanna-Tabor has attempted to reframe the underlying
dispute from the question of whether Hosanna-Tabor fired Perich in violation of the
ADA to the question of whether Perich violated church doctrine by not engaging in
internal dispute resolution. However, contrary to Hosanna-Tabor’s assertions, Perich’s
claim would not require the court to analyze any church doctrine; rather a trial would
focus on issues such as whether Perich was disabled within the meaning of the ADA,
whether Perich opposed a practice that was unlawful under the ADA, and whether
Hosanna-Tabor violated the ADA in its treatment of Perich. As Plaintiff notes, the
Nos. 09-1134/1135        EEOC, et al. v. Hosanna-Tabor                           Page 18
                         Evangelical Lutheran Church


LCMS personnel manual, which includes EEOC policy, and the Governing Manual for
Lutheran Schools clearly contemplate that teachers are protected by employment
discrimination and contract laws. In addition, none of the letters that Hosanna-Tabor
sent to Perich throughout her termination process reference church doctrine or the LCMS
dispute resolution procedures.

       Furthermore, this Court would not be precluded from inquiring into whether a
doctrinal basis actually motivated Hosanna-Tabor’s actions.         See, e.g., Geary v.
Visitation of Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 (3d Cir. 1993) (finding
that the First Amendment did not preclude the court from “determin[ing] whether the
religious reason stated by [the school] actually motivated the dismissal”); DeMarco, 4
F.3d at 171 (noting that a court can conduct an “inquiry . . . directed toward determining
whether the articulated purpose is the actual purpose for the challenged employment-
related action” without “calling into question the value or truthfulness of religious
doctrine”).

                                    CONCLUSION

       Because the ministerial exception does not bar Perich’s claims against Hosanna-
Tabor, we VACATE the district court’s order entering summary judgment on behalf of
Defendant and REMAND with instructions that the district court make a finding on the
merits of Perich’s retaliation claim under the ADA.
Nos. 09-1134/1135              EEOC, et al. v. Hosanna-Tabor                                         Page 19
                               Evangelical Lutheran Church


                                    _______________________

                                        CONCURRENCE
                                    _______________________

         HELENE N. WHITE, Circuit Judge, concurring. I agree that the ministerial
exception1 does not bar this ADA action. I write separately because I read the relevant
cases as more evenly split than does the majority.

         As the majority notes, whether a teacher at a sectarian school is properly
characterized as a ministerial employee is an issue of first impression for this Court.2
A number of courts have concluded that parochial school teachers are not ministerial
employees for purposes of the exception. See, e.g., DeMarco v. Holy Cross High Sch.,
4 F.3d 166, 171-72 (2d Cir. 1993); EEOC v. Fremont Christian Sch., 781 F.2d 1362,
1370 (9th Cir. 1986); Redhead v. Conf. of Seventh-Day Adventists, 440 F. Supp. 2d 211,
221-22 (E.D.N.Y. 2006); Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F.
Supp. 2d 849, 852-54 (S.D. Ind. 1998); see also Dole v. Shenandoah Baptist Church,

         1
           It is worth clarifying that “the ministerial exception” is fundamentally distinct from the statutory
exceptions in federal antidiscrimination laws like the ADA and Title VII. See Douglas Laycock, A
Syllabus of Errors, 105 Mich. L. Rev. 1169, 1181-82 (2007) (book review). The statutory exception to
the ADA allows religious entities to “giv[e] preference in employment to individuals of a particular
religion” and to “require that all applicants and employees conform” to the organization’s religious tenets.
42 U.S.C. § 12113(d). The statutory exception only covers religious discrimination, but it applies to any
employee of a religious entity. See Laycock at 1182. In contrast, the ministerial exception is a separate
judge-made exception rooted in the First Amendment designed to allow religious organizations to hire and
fire religious leaders according to any criteria they choose. See id. at 1181; Hollins v. Methodist
Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007). The ministerial exception is broad – it covers any kind
of discrimination – but applies only to religious leaders, or those whose duties are “ministerial.” See
Laycock at 1182.
         2
          Courts have struggled in determining the proper application of the ministerial exception to
teachers at religious schools. A student note points out that application of the primary-duties test has
created split authority in several areas, including regarding parochial school teachers. See Note, The
Ministerial Exception to Title VII: The Case for a Deferential Primary Duties Test, 121 Harv. L. Rev.
1776, 1788 (2008). And several courts have recognized the lack of uniformity in this area. See
Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) (“Circuit courts applying the ministerial exception
have consistently struggled to decide whether or not a particular employee is functionally a ‘minister.’”);
Coulee Catholic Sch. v. Labor and Indus. Rev. Comm., 768 N.W.2d 868, 881 (Wis. 2009) (explaining
contrasting ways in which courts have interpreted primary-duties test); Weishuhn v. Catholic Diocese of
Lansing, 756 N.W.2d 483, 492-93 (Mich. App. 2008) (listing cases in which ministerial exception has been
applied to teachers, and cases in which it has not). See also Petition for Writ of Certiorari, Archdiocese
of Washington v. Moersen, 128 S. Ct. 1217, 2007 WL 2681957 at *15 (No. 07-0323) (Sept. 7, 2007)
(“teachers at church-related schools have been included within the ministerial exception by some courts
and excluded by others”). The Supreme Court has declined to weigh in on the issue. See Moersen, 128
S. Ct. 1217 (2008) (mem.); The Ministerial Exception, supra, at 1776 n.3 (noting certiorari denials in 2006
and 2007).
Nos. 09-1134/1135            EEOC, et al. v. Hosanna-Tabor                                    Page 20
                             Evangelical Lutheran Church


899 F.2d 1389, 1396-97 (4th Cir. 1990).3 In contrast, courts have found teachers to be
ministerial employees where the teachers have taught religious subjects and/or had a key
role in the religious mission of the church. See Clapper v. Chesapeake Conference of
Seventh Day Adventists, 166 F.3d 1208, 1998 WL 904528, at *1, 7 (4th Cir. Dec. 29,
1998) (unpublished); EEOC v. Catholic Univ. of Am., 83 F.3d 455, 463-65 (D.C. Cir.
1996); EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, 283-84 (5th
Cir. 1981); Coulee Catholic Sch. v. Labor and Indus. Rev. Comm., 768 N.W.2d 868
(Wis. 2009).

         Of these cases, four present situations similar to that here — plaintiff teachers
who taught primarily secular subjects at a religious school and court decisions turning
on a primary-duties analysis. Two plaintiffs were not found to be ministerial employees.
See Redhead, 440 F. Supp. 2d at 221-22 (teacher at Seventh-day Adventist elementary
school teaching secular subjects and daily Bible study not a ministerial employee
because teaching duties were “primarily secular” and religious duties “were limited to
only one hour of Bible instruction per day and attending religious ceremonies with
students only once per year”); Guinan, 42 F. Supp. 2d at 852-53 (fifth-grade teacher
teaching mostly secular courses along with one class in religion and organized Mass
once a month not a ministerial employee; secular nature of the teaching position
demonstrated by the fact that some teachers were not Catholic). Two plaintiffs were
found to be ministerial employees.              See Clapper, 1998 WL 904528, at *1, *7
(elementary school teacher teaching traditional academic curriculum who also led
students in prayer and taught the Bible on a daily basis is a ministerial employee; court
rejected argument that only one of teacher’s thirteen responsibilities was explicitly
religious, relying on the fact that the church’s code made clear that the “the primary
purpose of the Seventh-day Adventist elementary education” is the redemption of
students’ souls through belief in and adherence to Seventh-day Adventist beliefs);


         3
           The majority cites Dole for the original proposition that parochial school teachers are not
ministerial employees for purposes of the ministerial exception. However, Dole addresses whether a
specific statutory exception applies. See id. at 1396-97. (evaluating whether teachers are ministers for
purposes of statutory exception from the definition of “employees” in the Fair Labor Standards Act).
Nos. 09-1134/1135        EEOC, et al. v. Hosanna-Tabor                            Page 21
                         Evangelical Lutheran Church


Coulee, 768 N.W.2d at 881-82 (in applying primary-duties test, state supreme court
eschewed quantitative analysis of time spent on tasks in favor of functional approach
focusing on whether organization has a fundamentally religious mission and how
important or closely tied the employee’s work is to the fundamental mission, concluding
plaintiff’s teaching Catholic doctrine and practice to students four days a week occupied
a role “of high importance and closely linked to the mission of the school – the
inculcation of a Christ-centered concept of life.”).

       Perich’s daily duties resemble to some extent those of the plaintiffs in each of
these cases, including those in which the courts found the plaintiffs’ “primary duties” to
be ministerial in nature. Tipping the scale against the ministerial exception in this case
is that, as the majority points out, there is evidence here that the school itself did not
envision its teachers as religious leaders, or as occupying “ministerial” roles. Hosanna-
Tabor’s teachers are not required to be called or even Lutheran to teach or to lead daily
religious activities. The fact that the duties of the contract teachers are the same as the
duties of the called teachers is telling. This presence (or lack) of a predominantly
religious yardstick for qualification as a teacher is a key factor in decisions finding the
ministerial exception applicable and those finding it inapplicable alike. See Clapper,
1998 WL 904528 at *2, *7 (4th Cir. 1998) (applying ministerial exception) (noting that
teachers are required to be “tithe paying members of the Seventh-day Adventist Church
and are expected to participate in church activities, programs, and finances” and “The
purpose of this requirement is obvious-the Chesapeake Conference desires to insure that
the minds of its youth are shaped by model members of the Seventh-day Adventist
faith.”); Coulee, 768 N.W.2d at 891 (applying ministerial exception) (court found that
the plaintiff teacher was “required to live, embody, and teach Catholicism in her role as
a teacher consistent with the mission of the school” where teacher was required to
“engage in Catholic worship, model Catholic living, and impart Catholic teaching,” even
though not required to be a Catholic); Guinan, 42 F. Supp. 2d at 852-53 (S.D. Ind. 1998)
(ministerial exception does not apply) (“the secular nature of [the teacher’s] position is
Nos. 09-1134/1135       EEOC, et al. v. Hosanna-Tabor                            Page 22
                        Evangelical Lutheran Church


underscored by the fact that the Archdiocese did not require teachers at [the school] to
be Catholic and, as a matter of fact, some were not Catholic.”)

       By this measure, even courts that have found ministerial plaintiffs who have daily
schedules that have roughly the same ratio of religious to non-religious activities as
Perich would find that the ministerial exception should not apply here.

       For the reasons above, I concur.
