Labor & Employment Law Daily Ministerial employee’s ADA claims not barred by ministerial exception, but sexual harassment claims fail
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Thursday, October 4, 2018

Ministerial employee’s ADA claims not barred by ministerial exception, but sexual harassment claims fail

By Kathleen Kapusta, J.D.

The ministerial exception does not categorically bar hostile work environment claims that do not seek relief for a tangible employment action, a federal court in Illinois declared, finding instead those types of claims must be evaluated on a case-by-case basis for excessive intrusion on the religious institution’s First Amendment rights. Under that analysis, because a gay ministerial employee’s Title VII claims of harassment based on sex, sexual orientation, and marital status would excessively entangle the government in religion—the Archdiocese claimed the alleged harassment reflected the pastor’s opposition in accord with Catholic doctrine to same sex marriage—they were dismissed. But there was no religious justification offered for the alleged disability discrimination and so his ADA hostile work environment claim survived (Demkovich v. St. Andrew the Apostle Parish, Calumet City, September 30, 2018, Chang, E.).

During his two years of employment as parish music director, the employee claimed the pastor knew he was gay and made discriminatory remarks such as referring to him and his partner as “bitches.” When the pastor learned he was planning to marry his partner, his abusive behavior increased, he made derogatory comments about the “fag wedding,” and four days after the marriage, he asked the employee to resign. The employee refused and was fired, purportedly because his marriage was “against the teachings of the Catholic church.”

First suit dismissed. The employee sued but the court, finding his discrimination and wrongful termination claims were barred by the First Amendment’s ministerial exception, dismissed his complaint. Modifying his claims to challenge the hostile work environment, rather than the firing itself, he filed the complaint at issue here, which rather than seeking relief for an adverse tangible employment action sought damages for the alleged discriminatory insults and remarks. The Archdiocese again argued that the claims were barred by the ministerial exception.

Hostile work environment. Because the employee conceded for purposes of the motion to dismiss that he was a minister under the ministerial exception, the issue was whether the exception bars claims for a hostile work environment—rather than for refusals-to-hire or for firings—under Title VII and the ADA. Observing that Hosana-Tabor, the Supreme Court’s most thorough case on the ministerial exception, dealt only with the question of a minister’s firing, the court examined appellate court authority before concluding that the question of whether the ministerial exception applies to claims that do not challenge tangible employment actions remains open in the Seventh Circuit.

Two extremes. Turning to the “two extremes of discrimination claims brought by employees against their religious employers,” the court noted that on one end of the spectrum the Supreme Court has made clear that the selection or retention of a minister is completely off-limits to the courts. Further, the court observed, the extension of the ministerial exception to claims that challenge tangible employment actions is consistent with the exception’s underlying rationale as those claims still intrude on a church’s internal governance of its minister’s employment duties. On the other end of the spectrum, however, whether the employer acted on a religious-based motive is examined for challenges brought by non-minister employees and there are limits to an employer’s invocation of a religious motive.

Excessive entanglement. “Where then,” the court asked, “should a minister’s challenge to a hostile work environment, with no challenge to a tangible employment action, fall on this spectrum?” Turning to two Ninth Circuit decisions addressing whether hostile work environment claims brought by ministerial employees are barred by the exception, the court observed that the upshot of these cases, as well as the many cases in which non-minister employees successfully bring claims so long as there is no excessive entanglement, is that federal courts have been able to evaluate, on a case-by-case basis, when an employee’s particular case would pose too much of an intrusion into the religious employer’s Free Exercise and Establishment Clause rights. “If a minister’s hostile-environment claim does not challenge a tangible employment action and does not pose excessive entanglement with the religious employer, then the ministerial exception should not apply,” said the court here.

Sex-based claims. As to the employee’s claims here, the court found that although the ministerial exception did not bar his hostile-environment claims based on sex, sexual orientation, and marital status to the extent he did not challenge a tangible employment action, litigation over these claims would excessively entangle the government in religion. The Catholic Church’s official opposition to gay marriage is commonly known and there was no reason to question the sincerity of the Archdiocese’s belief that the opposition was dictated by Church doctrine. This official opposition, said the court, “weighs as an excessive-entanglement concern in this case, because the harassing statements and conduct were motivated by an official Church position (or at least the Archdiocese would defend the case on those grounds).” And while regulating how the official opposition is expressed is not as directly intrusive, it comes close and must weigh in favor of barring the claim under the Religion Clauses, the court reasoned.

Other risks. Further, the employee’s status as a minister weighed in favor of more protection of the Church under the First Amendment as it has absolute say in who will be its ministers and the Archdiocese could very well assert that it has a heightened interest in opposing same-sex marriage amongst those who fulfill ministerial roles. “Either the court would have to accept that proposition as true (thus intensifying the intrusion in regulating how the opposition is conveyed to the Church’s ministers) or the parties would have to engage in intrusive discovery on the sincerity of that belief.”

In addition, the opposition to same-sex marriage could be litigated in other ways, discovery over these claims would likely take a prolonged period, and because the hostile-environment claim does not challenge a tangible employment action, the Archdiocese could seek to prove an affirmative defense, namely, that it took reasonable care to prevent or to correct harassment and the employee failed to take advantage of it preventive or corrective efforts. “All-in-all, there are too many circumstances—in this particular case for this particular set of claims—that would result in excessive entanglement with, and intrusion on, the Church’s religious doctrine to allow the claims based on sex, sexual orientation, and marital status to move forward.”

Disability discrimination. After assuming that the ADA provides for hostile work environment claims, the court found that the Archdiocese offered no religious explanation for the alleged disability discrimination—numerous comments about the weight of the employee, who suffered from diabetes and a metabolic syndrome. While the Archdiocese justified the comments as reflecting the pastor’s subjective views and/or evaluation of the employee’s fitness for his position as a minister, this simply was not a religious justification based on any Church doctrine or belief.

Also rejected was the Archdiocese’s assertion that the employee failed to adequately state a claim for relief. He alleged multiple instances of harassing statements by the pastor about his medical condition and his disability that made him feel “discriminated against” and “humiliated and belittled,” and that severely damaged his personal and professional reputation and caused his physical and mental health to suffer. This was sufficient to survive dismissal.

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