Labor & Employment Law Daily Ministerial exception does not bar all hostile environment claims brought by ministerial employees
Thursday, September 3, 2020

Ministerial exception does not bar all hostile environment claims brought by ministerial employees

By Kathleen Kapusta, J.D.

“The question as framed here is whether we can imagine any set of facts under which ministerial employees could bring hostile environment claims without running afoul of the Constitution. We can.”

Addressing on interlocutory appeal whether the First Amendment’s ministerial exception should be extended to categorically bar hostile environment discrimination claims by ministerial employees, even where there is no challenge to tangible employment actions, the Seventh Circuit, joining the Ninth Circuit and departing from the Tenth, held “Our answer is no.” Although the court, in a case brought by a catholic church music director who alleged he was harassed by the reverend based on his sexual orientation and weight, observed that while the problem was particularly sensitive, “involving tension between the freedom of religion and employees’ rights to be free from invidious discrimination,” it was not so sensitive as to preclude line-drawing altogether. Judge Flaum, dissenting, argued that adjudicating the employee’s hostile environment claims would “unavoidably and excessively entangle the courts in religious matters at the core of the protected ministerial relationship” (Demkovich v. St. Andrew the Apostle Parish, August 31, 2020, Hamilton, D.).

Alleged harassment. At the time he was hired as music director, the employee, who was overweight, diabetic, and suffered from metabolic syndrome, had been with his partner for over a decade. He alleged that the reverend harassed him based on his weight and medical issues, and repeatedly made derogatory comments about his sexual orientation, which increased when he learned the employee intended to marry his partner. After the wedding ceremony, the reverend purportedly demanded that the employee resign and when he refused, the reverend fired him.

Certified question. The employee sued the parish and the Archdiocese, asserting hostile work environment claims under Title VII and the ADA. Invoking the ministerial exception, the church moved to dismiss. Dismissing the Title VII claim but allowing the ADA claim to proceed, the district court certified the following question: “Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?”

Hosanna-Tabor. On appeal, the Seventh Circuit first observed that while the Supreme Court, in its 2012 Hosanna-Tabor decision, explained that the purpose of the ministerial exception is to “ensure that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the church’s alone,” it did not address whether the ministerial exception applies to suits that do not result from the firing of a ministerial employee. Because the employee’s complaint here addressed only his supervisor’s alleged harassment, and not his termination, it fell into the area Hosanna-Tabor declined to reach.

Alicea-Hernandez. Pointing to the Seventh Circuit’s 2003 decision in Alicea–Hernandez v. Catholic Bishop of Chicago, in which the court stated that “The ‘ministerial exception’ applies without regard to the type of claims being brought,” the church and dissent argued that this sentence bars all claims, including hostile environment claims, by a ministerial employee. But, said the court here, that “reading takes the sentence out of context and reads it too broadly.” The plaintiff in that case, the court explained, did not clearly delineate her claims by reference to causes of action for wrongful termination and/or a hostile work environment and nor did the court’s opinion. “The question before us today simply was not presented in Alicea-Hernandez.

Ninth Circuit. Further, said the court, before Alicea–Hernandez, the Ninth Circuit, in its 1999 Bollard v. California Province of Society of Jesus decision, drew a line between tangible employment actions and hostile environment claims. In that case, the plaintiff, who had been training for the priesthood, alleged his superiors subjected him to severe sexual harassment. Although the district court dismissed his claims, the Ninth Circuit, reversing, found the Free Exercise Clause did not require courts to deny relief.

Tenth Circuit. Five years later, the Ninth Circuit, in Elvig v. Calvin Presbyterian Church, held that while an ordained minister who alleged that a senior minister sexually harassed her and retaliated against her could not challenge any tangible employment decisions, she could pursue her hostile environment claims. The Tenth Circuit, however, took a different approach in Skrzypczak v Roman Catholic Diocese of Tulsa, when, in dismissing a ministerial employee’s sex discrimination claims, it held that her hostile work environment claim would pose too great a threat of entanglement with religious matters.

Free Exercise Clause. Citing the Supreme Court’s 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, the appeals court pointed out that the ministerial exception is a matter of constitutional law, not statute. It ensures that religious organizations are able to “select and control” their ministers without interference from civil law like employment discrimination statutes. Selection is accomplished through decisions such as hiring, firing, promoting, retiring, and transferring employees while control is available through other tangible employment actions such as decisions about compensation and benefits, working conditions, resources available to do the job, and training.

Tortious in nature. While employment discrimination laws hold employers accountable for tangible decisions made by a manager with an unlawful purpose, hostile environment claims, though arising under the same statutes, involve different elements and specifically tailored rules for employer liability and are essentially tortious in nature. “The lack of constitutional necessity for barring ministerial employees’ hostile environment claims becomes clear from the tort-law origins of the claims and the basis for employer liability for them,” observed the court, noting that as explained in Ellerth and Faragher, “the Court used the line between tangible employment actions and hostile environments to set different standards for employer liability.”

Oxymoron. While the church argued that its power to take tangible employment actions against ministerial employees does not give it enough power to “select and control” those employees, the court found that subjecting the “plaintiff to the abuse alleged here is neither a statutorily permissible nor constitutionally protected means of ‘control’ within the meaning of Hosanna–Tabor.” Rather, the alleged conduct was “classic tortious harassment,” said the court, and the “notion that such harassment is necessary to control or supervise an employee is, under employment discrimination law, an oxymoron.”

And while the church asserted at various times that the reverend’s conduct was motivated by Catholic doctrine, “Hosanna–Tabor protects the rights of religious employers, not supervisors within those religious organizations,” the court stated. Noting that tangible employment actions are directly attributable to employers, holding that those claims are off-limits to ministerial employees fits with Hosanna–Tabor’s focus on the institutional rights of employers, the court reasoned. Hostile work environment claims, on the other hand, concern the behavior of individual coworkers and/or supervisors that is generally treated as outside the scope of employment. “Supervisors within religious organizations have no constitutionally protected individual rights under Hosanna–Tabor to abuse those employees they manage, whether or not they are motivated by their personal religious beliefs.”

Consequences. The First Amendment, the court observed, “does not require that supervisors and co-workers of ministerial employees have the right, for example, to leave nooses at the desk of a Black minister while repeatedly subjecting him to verbal abuse with racial epithets and symbols, or to subject a teacher to pervasive and unwelcome sexual attention, or to subject another to intimidating harassment based on national origin.” Such harassment simply is not constitutionally necessary to “control” ministerial employees.

Establishment Clause. As to the Establishment Clause aspect of the issue, the court noted that cases addressing the ministerial exception raise the concern that litigation of particular types of claims against religious organizations will excessively entangle them with the government. Turning first to the issue of procedural entanglement, the court pointed out that while civil litigation can be intrusive, procedural entanglement is not necessarily any more a concern with hostile environment claims by ministerial employees than with claims by non-ministerial employees.

Noting further that the Catholic Church has recently faced extensive litigation over torts committed by clergy, the court explained that given the “scope of the ministerial exception and the lack of any generalized immunity from litigation for religious organizations, the potential for procedural entanglement does not bar plaintiff’s claims here entirely. Courts can deal with procedural entanglement problems as they arise rather than closing the courthouse doors to an entire category of cases.”

Substantive entanglement. As to substantive entanglement, the church argued that not only was the reverend’s behavior toward the employee’s sexual orientation motivated by church doctrine, the manner in which he expressed or implemented that doctrine should be shielded from judicial scrutiny. Further, the church asserted, the reverend’s supervision of the employee authorized him to harangue the employee about his health. Indeed, the court here pointed out, the lower court accepted this argument in part, dismissing the employee’s sexual orientation claim but allowing his disability claim to go forward because the Archdiocese offered a Catholic doctrinal ground for the former but not the latter.

Entanglement must be excessive. Unpersuaded that “the risk of substantive entanglement is so great that this case or all such cases must be dismissed without further inquiry or discovery,” the court found that to violate the Establishment Clause, entanglement must be excessive. The employee was not asking it to pass on the substance of the Catholic Church’s religious doctrines or practices, observed the court, but rather was asserting that some of the church’s internal decisions “caused behavior that constituted abuse under neutral, generally applicable standards that would be enforceable on behalf of a non-ministerial employee, and could also be enforced in a hostile environment case by a ministerial employee.”

Accordingly, the court concluded that the Free Exercise Clause does not bar all hostile environment claims by ministerial employees; the risk of procedural entanglement in such cases is modest because religious organizations have no generalized claim to immunity from litigation or regulation; and in hostile environment cases brought by ministerial employees, there is some risk of substantive entanglement, but that risk does not appear so severe that all such claims must be dismissed. “That risk can be managed by avoiding substantive decisions on issues of religious doctrine or belief and by balancing First Amendment rights with the employee’s rights and the government’s interest in regulating employment discrimination. We trust that district courts will manage these issues in their sound discretion.”

Accordingly, the court answered the certified question in the negative, affirmed the lower court’s decision denying dismissal of the employee’s disability claim, and reversed the dismissal of his sexual orientation claim.

Dissent. In a lengthy dissent, Judge Flaum argued that Alicea-Hernandez, as controlling precedent, required dismissal of the employee’s claims. Judge Flaum, disagreeing with the majority’s view that the plaintiff in Alicea-Hernandez did not assert a hostile work environment claim, noted the complaint alleged both tangible employment action and an intangible hostile work environment.

“To the extent the majority opinion is reconcilable with Alicea–Hernandez, I suggest the resulting rule creates a perverse incentive for religious employers. Under the majority’s rule, if a minister alleges that her work environment was hostile without indicating that she is challenging a tangible employment action, then the ministerial exception does not protect the religious employer. But if the religious work environment becomes so intolerable that it prompts a constructive discharge, as in Alicea–Hernandez, then the ministerial exception does protect the religious employer.”

Judge Flaum would follow the approach laid out in Alicea-Hernandez by holding that the ministerial exception bars each of the employee’s claims.

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