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United States: Wisconsin Supreme Court Holds Constitutional Protections for Free Exercise of Religion Preclude Age Discrimination Claim

(Aug. 19, 2009) The Supreme Court of Wisconsin has held that a teacher at a Catholic school cannot sue her former school for age discrimination, because the U.S. and Wisconsin constitutions protect the school's free exercise of religion.

A first grade teacher brought suit against a Catholic school under the Wisconsin Fair Employment Act, claiming the school committed age discrimination in dismissing her. The school responded that the teacher's position was “ministerial,” and therefore her lawsuit was barred as a matter of constitutional law. The trial court and an intermediate court of appeals ruled in favor of the teacher. The school appealed the case to the Supreme Court of Wisconsin.

The court analyzed the school's claim under the Free Exercise Clause of the First Amendment of the U.S. Constitution and the Freedom of Conscience clauses in article I, section 18, of the Wisconsin Constitution. The court recognized the “ministerial exception” forbidding state interference in a religious organization's selection of its leaders. To qualify for the exception, a job position must meet a judicial test that the job's “primary duties” were ministerial. While courts have split on the meaning of “primary,” the Wisconsin court adopted an interpretation focusing on the job's importance to the religious entity's “spiritual and pastoral” mission, rather than evaluating whether the majority of the job's duties were religious or secular. The court found that the teacher's employment was closely related to the school's religious mission and concluded that the teacher's age discrimination claim was precluded by federal and state constitutional free exercise protections. (Coulee Catholic Schools v. Labor and Industrial Review Commission, 2009 WI 88 (July 21, 2009), available at