Bloomberg Law
Jan. 26, 2023, 10:40 AM

Liberty University to Push for Bigger Religious Job-Bias Shield

Robert Iafolla
Robert Iafolla
Senior Legal Reporter

Liberty University will try to convince a federal appeals court in Richmond that it’s immune to a former studio art professor’s age bias lawsuit, in a case testing the US Supreme Court’s doctrine shielding religious employers from anti-discrimination laws.

Liberty University Inc. is slated for oral argument Thursday at the US Court of Appeals for the Fourth Circuit to challenge a district judge’s decision that Eva Palmer didn’t qualify as a “minister,” which permitted her to sue the Baptist university for not renewing her teaching contract allegedly due to age discrimination.

Ruling that Palmer was a minister because Liberty required her to integrate a Christian worldview into her studio art classes “would be a significant expansion of the conception of the ministerial exception,” US District Judge Norman Moon said in the 2021 opinion that Liberty is appealing.

The case gives the Fourth Circuit the chance to define how broadly to read the Supreme Court’s 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, which extended the ministerial exception to block job-bias claims against religious schools by teachers with religious duties.

The ministerial exception, first recognized by the Supreme Court in 2012’s Hosanna-Tabor v. EEOC ruling, is based on the First Amendment’s protection for religious exercise and prohibition on government control in matters of faith. The court set forth several factors for deciding if workers are ministers, such as whether they were held out as a minister or had significant religious training.

In Our Lady, the justices said that the Hosanna-Tabor factors were general guidelines, and emphasized that “what an employee does” is the most important consideration for determining whether the worker is a minister.

Ministerial Development

Federal appeals courts have had a few chances to apply and develop the ministerial exception doctrine since the high court last weighed in.

For example, the Seventh Circuit used it to block a lawsuit filed by a Catholic school guidance counselor who lost her job after disclosing her same-sex marriage, and to hold that the ministerial exception can shield religious employers from hostile work environment claims.

The Tenth Circuit, on the other hand, rejected a Pentecostal college’s argument that the exception goes beyond sheltering religious employers from potential liability to insulate them from having to litigate job discrimination allegations.

The Fourth Circuit will weigh Liberty’s claim that “Palmer was exactly the type of Christian educator the Supreme Court contemplated as a minister” against Palmer’s assertion that adopting Liberty’s position would expand the exception “beyond all recognition” and without limit, making anti-discrimination laws at every religious organization little more than an illusion.

‘What She Actually Did’

The case arises from Liberty’s decision against renewing Palmer’s contract in 2018, after more than three decades of teaching at the university. Liberty, which was founded by televangelist Jerry Falwell, doesn’t give professors tenure. The university made an exception to its no-tenure policy at its law school, because having tenured professors is an American Bar Association requirement for accreditation.

Liberty said it didn’t bring Palmer back because she couldn’t teach digital art classes or teach online. But Palmer alleged it was due to her age—she was 79 when the university cut ties—and she sued the school in May 2020 under the Age Discrimination in Employment Act.

Moon, a Clinton-appointed judge in the Western District of Virginia, rejected Liberty’s argument that Palmer’s lawsuit was blocked by the ministerial exception in December 2021. Palmer’s core function was secular, and Liberty didn’t offer enough evidence that she engaged in ministerial actions, he said.

“The question is not what Palmer was supposed to do or encouraged to do, but what she actually did,” Moon said.

Nevertheless, Moon threw out Palmer’s lawsuit about a week later, ruling that she didn’t provide enough evidence to overcome Liberty’s summary judgment motion.

Who’s a Minister?

“It is undisputed,” Liberty told the Fourth Circuit in a brief, that Palmer was a “prayer warrior and spiritual mentor to her students.” She integrated the school’s Christian worldview into her art classes by reading scriptures, holding devotionals, praying, and speaking about her faith, the school said.

Palmer was qualified to minister the faith to her students, having enrolled in Liberty’s Doctor of Ministry program, which involved course work on studying the bible and evangelizing, Liberty said.

Liberty’s attorney, King Tower of Woods Rogers PLC, couldn’t immediately comment.

Pepperdine University and three other religious colleges filed an amicus brief backing Liberty, arguing that the district judge read Our Lady too narrowly by discounting Liberty’s expectations of Palmer to be a minister.

But Liberty’s reading of the ministerial exception could strip legal protections from hundreds of thousands of secular workers at religiously affiliated organizations, from teachers and nurses to social workers and in-house lawyers, Americans United for the Separation of Church and State said in an amicus brief supporting Palmer.

Palmer will try to revive her age bias lawsuit during oral argument, in addition to resisting Liberty’s assertion that her claims are blocked by the ministerial exception. To the latter point, Palmer said in a brief that the university embellishes and exaggerates facts—and at some points makes factually unsupportable statements—to make its case that she’s a minister.

Although Palmer is a devout Christian, her teaching job dealt with how to mix paint and draw a human portrait, said her attorney, Richard Hawkins of Hawkins Law Firm PC.

“If she’s a minister, then everybody is a minister,” Hawkins said.

The case is Palmer v. Liberty University, Inc., 4th Cir., No. 21-02390, oral argument 1/26/23.

To contact the reporter on this story: Robert Iafolla in Washington at

To contact the editor responsible for this story: Genevieve Douglas at; Rebekah Mintzer at

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