Indiana Supreme Court Says Church Autonomy Doctrine Bars Man’s Lawsuit

Court says a Catholic school’s choice to fire a man who married another man is a matter of church autonomy.

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State: Indiana
Categories: Employment Practices

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

In 2006, a man (the “Plaintiff”) began teaching social studies at a parochial school (the “Cathedral”) under a contract renewed annually.

In 2017, he married another man who teaches at a seminary prep school (the “School.”)

The Cathedral and School operated within the same archdiocese.

In mid-2019, the archdiocese ordered that both men be terminated because of their same-sex marriage.

The School declined the archdiocese’s order on the basis that the men were in a “civilly-recognized same sex marriage.”

The archdiocese then revoked the School’s status as a Catholic institution in accordance with canonical requirements.

The School no longer could use a name incorporating the word “Catholic,” and lost recognition as a Catholic institution by the archdiocese. This included exclusion from The Official Catholic Directory.

However, the Cathedral obeyed the archdiocese’s order and fired the Plaintiff.

The Cathedral president told the Plaintiff the decision to fire him was based entirely on the fact that “the Archbishop directed that we [Cathedral] can’t have someone with a public same-sex marriage here and remain Catholic.”

In an open letter to the “Cathedral family,” the Cathedral noted its 100-year history.

Based upon 22 months of discussions with the archdiocese, the Cathedral said the archbishop was clear that, by retaining the Plaintiff, the Cathedral would forfeit its Catholic identity, given the Plaintiff’s decision to live in contradiction to Catholic teachings on marriage.

The letter continued: “We are committed to educating our students in the tenets of the Catholic faith.” It stated further that “to remain a Catholic School, Cathedral must follow the direct guidance given to us by the Archbishop and separate from the teacher.”

The Plaintiff sued the archdiocese, and a trial court dismissed the lawsuit on First Amendment grounds. The Plaintiff appealed.

Church autonomy doctrine barred the claim from civil court

The Indiana Supreme Court agreed with the trial court.

It concluded that the plaintiff’s lawsuit was barred by the church autonomy doctrine.

It noted that this doctrine “deals with a church’s First Amendment right to autonomy in making decisions regarding [its] own internal affairs,” including matters of faith, doctrine, and internal governance.

The Court continued:

The archdiocese’s decision whether a school maintains its Catholic identity is an internal matter that concerns both church policy and administration.

The gist of plaintiff’s claims is communication between the archbishop and Cathedral, a Catholic school, over a matter involving church discipline and doctrine… . Whether and when the archdiocese would continue to recognize Cathedral as Catholic is at the heart of the communication… . The directive was … a choice the archdiocese gave Cathedral.

It could either retain its recognition as a Catholic school by following the archdiocese’s instruction on what was required to be recognized as a Catholic school or forfeit continued recognition.

This choice reflects the archdiocese’s authority to declare which schools are Catholic … .

The Court quoted with approval from its 1888 ruling in Dwenger v. Geary, 14 N.E. 903 (1888): “No power save that of the church can rightfully declare who is a Catholic. The question is purely one of church government and discipline, and must be determined by the proper ecclesiastical authorities.”

What this means for churches

A church has two principal defenses when terminating employees for violating the church’s employment standards.

The first is the “ministerial exception” doctrine. It pertains to employment disputes between churches and minister-employees.

It prohibits courts from resolving such disputes, according to numerous court rulings.

The second is the “church autonomy” doctrine. The Indiana Supreme Court used this doctrine as the basis of its decision in this case.

The church autonomy doctrine generally bars civil courts from resolving internal church disputes over matters of “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.”

As the United States Supreme Court ruled in 1871:

The right to organize voluntary religious associations to assist in the expression and dissemination of any religious doctrine and to create tribunals for the decision of controverted questions of faith within the association, and for the ecclesiastical government of all the individual members, congregations, and officers within the general association, is unquestioned. All who unite themselves to such a body do so with an implied consent to this government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for. Watson v. Jones, 80 U.S. 679, 729 (1871).

Several courts have cautioned that the immunity provided by the church autonomy doctrine is not absolute. It does not apply to purely secular decisions, even when made by churches.

Payne-Elliott v. Roman Catholic Archdiocese, 193 N.E.3d 1009 (Ind. 2022)

Legal Developments

Oregon Federal Court Affirms Ministerial Exception’s Application to State Law

This noteworthy decision also shows how churches should assert ministerial exception as a defense in employment cases.

Richard R. Hammar, Attorney, CPA

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State: Oregon
Categories: Employment Practices, Ministerial Exception

Key Point 8-10.01 The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

A federal court in Oregon ruled the “ministerial exception” prevented it from resolving a discrimination claim by an applicant for a pastoral position in a church.

The decision reveals three important ideas.

1) It shows how this powerful legal doctrine directly applies to state anti-discrimination employment laws.

2) It shows how it applies to ministers and religious teachers, regardless of whether the individual is a prospective hire of the church’s, employed by the church, or no longer employed by the church.

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3) It shows how churches should assert the ministerial exception as an affirmative defense when dealing with a lawsuit related to ministers and employment.

An open worship pastor position

In 2020, a church posted a job for “Pastor of Worship and the Arts” (“Worship Pastor”). The qualifications for the position were:

“A Pastor’s heart. (We) are not merely looking for a musician, but someone who will actively pastor our community.
Comfort and familiarity with technology and its application into worship services.
Ability to utilize ProPresenter in the planning and implementation of worship services.
Knowledgeable in multicultural communities and communication.
A clear multicultural understanding and philosophy of worship that will translate to powerful multicultural worship experiences.
Ability to lead musical worship, ideally with ability and experience in one or more instruments traditionally utilized in a worship setting.”

“Plaintiff” claimed that he possessed all the qualifications for the position, including “formal education in theology, psychology, and music” and significant experience as a “Worship Leader and Pastor, Preacher, and worship song writer.”

However, he was not selected.

The Plaintiff applied for the position two more times over the next few years. Again, he was not selected.

He said this was because he was not a native English speaker and was not familiar with American culture. The Plaintiff sued the church, claiming the church did not hire him because he was not a native English speaker and was unfamiliar with American culture.

He claimed discrimination based on national origin in violation of Title VII of the Civil Rights Act of 1964.

Church claims ministerial exception

The church moved for dismissal on the ground that the ministerial exception doctrine bars civil courts from resolving employment disputes between churches and clergy.

The federal court agreed.

The ministerial exception . . . in the employment context, allows religious institutions the “authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.” The ministerial exception “insulates a religious organization’s employment decisions regarding its ministers from judicial scrutiny under Title VII.”

The court acknowledged that “there is no rigid formula for deciding when an employee qualifies as a minister.” But the inquiry focuses on “the actual functions of the employees said to be within the exception,” and considers “whether they are ordained, teach religion to other members, or perform duties that are primarily religious in nature.” (per Bohnert v. Roman Catholic Archbishop, 136 F. Supp. 3d 1094 (N.D. Cal. 2015).

The court concluded:

Plaintiff applied for the position of “Worship Pastor.” The qualifications included “a Pastor’s heart,” actively “pastoring” to the community, an understanding of the “philosophy of worship” and the “ability to lead musical worship.” These allegations establish that the job and duties at issue hold “ecclesiastical significance” and are similar to the “paradigmatic application of the ministerial exception to the employment of an ordained minister… .”

The Supreme Court has emphasized that when analyzing whether an employee qualifies as a minister, “what matters, at bottom, is what an employee does.” (per Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020)).

The allegations show that the “Worship Pastor” is meant to engage in “important religious functions” including leading others in worship and pastoring to the community… . The Court finds [the church] sought to hire for a role that falls under the ministerial exception. Accordingly, [the church] has “the authority to select and control who will minister to the faithful… .” The court dismisses Plaintiff’s Title VII claims as barred under the ministerial exception.

What this means for churches

Now let’s expand upon the three important ideas offered at the outset of this article.

1. The idea that the powerful ministerial exception doctrine can apply to state-level anti-discrimination employment laws

The Plaintiff asserted an appeal that the ministerial exception under Title VII only applies to federal cases, not state cases like this one. The court rejected this position, noting:

Plaintiff argues the ministerial exception does not apply to his state law claims because [the church has] not provided a case that applies the exception to Oregon’s anti-discrimination laws. The ministerial exception derives from Supreme Court case law interpreting the First Amendment to the United States Constitution. It thus applies to state law claims… . [The exception is] applicable to any state law cause of action that would otherwise impinge on the church’s prerogative to choose its ministers or to exercise its religious beliefs in the context of employing its ministers. Thus, any claim … that would require the church to employ [a minister] would interfere with the church’s constitutionally protected choice of its ministers, and thereby “would run afoul of the Free Exercise Clause.” (per Puri v. Khalaa, 844 F.3d 1152 (9th Cir. 2017)).

2. The idea that the ministerial exception can apply to ministers and religious teachers, regardless of whether the individual is a prospective hire, employed, or no longer employed by the church.

Previous cases regarding the ministerial exception usually involve ministers—or individuals who fulfill important religious duties through their roles—who are either employed by a church or recently dismissed by a church. As this case illustrates, the legal doctrine also applies to individuals during the application and selection phases for open roles.

3. The idea that churches can use the ministerial exception as an affirmative defense

The court concluded that the ministerial exception is an affirmative defense.

Generally, affirmative defenses to a lawsuit must be pleaded in a defendant’s response to a lawsuit or they are waived.

The ministerial exception’s status as an affirmative defense is not known by some attorneys who deal infrequently with church litigation. Therefore, it would be wise for church leaders to share this important point with the church’s attorney in any lawsuit in which the church will plead the ministerial exception.

A failure to do so may result in a loss of the exception.

Chris v. Kang, 2022 WL 2967455 (D. Ore. 2022).

Legal Developments

Federal Court Bars Guidance Counselor’s Title VII Claims

Case shows the importance of having all faculty-related handbooks, job descriptions, and contracts reviewed by legal counsel.

Richard R. Hammar, Attorney, CPA

Bio

State: Federal
Categories: Employment Practices, Ministerial Exception

Key Point 8-10.1 The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

Update: A federal appeals court has ruled that a guidance counselor at a Catholic high school was a “minister” and that the First Amendment’s “ministerial exception” barred her claims under Title VII of the Civil Rights Act of 1964 for discrimination, retaliation, and hostile work environment.

In recent legal development out of Florida, Richard Hammar explains the ins and outs of a case in which the court finally said no to hearing a property dispute between a church and its governing body.

‘Morals Clause’

A Catholic school (“School”) in the Archdiocese of Indianapolis had, as its mission, “to provide, in concert with parents, parish, and community, an educational opportunity which seeks to form Christian leaders in body, mind, and spirit.”

A woman (“Plaintiff”) began working at the School as a guidance counselor.

She was not a practicing Catholic. As part of her job, Plaintiff served on the School’s main leadership body, the Administrative Council.

The Council meets weekly to address the School’s “day-to-day operations and spiritual life.”

The Administrative Council also makes decisions related to the school’s religious mission. This includes arranging logistics for an all-school liturgy and qualifications for a student to serve as a eucharistic minister.

The School used a one-year employment contract for teachers and guidance counselors.

For more than 30 years, the School included a “morals clause” in those contracts.

From 2007 to 2017, the school used a contract titled, “School Teacher Contract.” It required employees to refrain from “any personal conduct or lifestyle at variance with the policies of the Archdiocese or the moral or religious teachings of the Roman Catholic Church.”

Failure to do so would result in “default under the contract.”

An employee was also in default if she engaged in “cohabitation (living together) without being legally married.”

The school principal and the pastor could “suspend or terminate the employment” of a defaulted employee at his or her discretion.

‘Teaching Ministry Contract’

For the 2017-2018 school year, the School instituted a new employment agreement entitled “Teaching Ministry Contract.”

It contained the same morals clause and attached a Ministry Description detailing the responsibilities of the position.

In May 2018, Plaintiff signed a contract titled, “School Guidance Counselor Ministry Contract,” which came with the “Archdiocese of Indianapolis Ministry Description.”

The updated contract included a similar morals clause, but now stated that an employee was in default if the employee were to engage in a relationship “contrary to a valid marriage as seen through the eyes of the Catholic Church,” which defines marriage as between a man and a woman.

The accompanying Ministry Description defined the primary functions of a school guidance counselor in part as:

Adhering to mission and within the school’s supervisory structure, including the school principal and pastor or high school principal and president, the school guidance counselor will collaborate with parents and fellow professional educators to foster the spiritual, academic, social, and emotional growth of the children entrusted in his/her care.

The Ministry Description also labeled guidance counselors as “ministers of the faith,” and stated that their position included “facilitating faith formation.”

A guidance counselor’s responsibilities included:

1. Communicating the Catholic faith to students and families through implementation of the school’s guidance curriculum, academic course planning, college and career planning, administration of the school’s academic programs, and by offering direct support to individual students and families in efforts to foster the integration of faith, culture, and life.

2. Praying with and for students, families, and colleagues. Participating in and celebrating liturgies and prayer services as appropriate.

3. Teaching and celebrating Catholic traditions and all observances in the Liturgical Year.

4. Modeling the example of Jesus, the Master Teacher, in what He taught, how He lived, and how He treated others.

5. Conveying the Church’s message and carrying out its mission by modeling a Christ-centered life.

6. Participating in religious instruction and Catholic formation, including Christian services, offered at the school. Non-Catholic school guidance counselors are expected to participate to the fullest extent possible (e.g., non-Catholics would come forward to receive a blessing instead of Holy Communion in the Catholic Mass).

By signing the contract, Plaintiff acknowledged that she received the Ministry Description and agreed to fulfill “the duties and responsibilities” of the agreement.

But she insisted that these documents did not describe either her or the school’s actual conduct.

The School did not renew the Plaintiff’s employment contract based on her civil union with another woman in violation of the Catholic Church’s moral teachings.

The Plaintiff filed a Title VII claim.

A federal court in Indiana initially said the Title VII case did not violate the church autonomy doctrine (also known as the ecclesiastical abstention doctrine) and could proceed to a trial.

Before it could, the School filed a “motion for summary judgment,” reiterating its belief the ministerial exception applied to the case.

The federal court agreed and granted the School’s motion.

The Plaintiff appealed.

‘Expected to carry out the school’s religious mission’

The federal appeals court affirmed that the ministerial exception barred all of the Plaintiff’s claims:

As the Co-Director of Guidance and a member of the Administrative Council, Plaintiff was one of the school leaders responsible for the vast majority of the school’s daily ministry, education, and operations. She was expected to take part in the school’s day-to-day operations, which included responsibilities that conveyed the Catholic faith to students, such as leading prayer over the public address system more than once. Her employment agreements and faculty handbooks recognized these job duties and responsibilities by stating that she was expected to carry out the school’s religious mission. . . . Her job included facilitating faith formation by communicating the Catholic religion to students, “modeling a Christ-centered life,” and “praying with and for students.” According to the Archdiocese’s Ministry Description, guidance counselors were “to foster the spiritual, academic, social and emotional growth of the children entrusted in his/her care.”

What this Title VII case means for church schools and church school leaders

This Title VII case supports the application of the ministerial exception to guidance counselors in church schools.

But, as the courts here noted, such a conclusion is dependent on the text of faculty handbooks, faculty contracts, and other pertinent documents. The federal court and the federal appellate court both determined the Plaintiff was a minister because she was entrusted with communicating the Catholic faith to the school’s students and guiding the school’s religious mission. The ministerial exception thus barred all of her claims at the federal and state levels.

To ensure the application of the ministerial exception to school staff, these important documents should be reviewed by legal counsel, and modified as appropriate.

Starkey v. Roman Catholic Archdiocese, 41 F.4th 931 (7th Cir. 2022).

Legal Developments

Appeals Court Refused to Dismiss a Former Employee’s Wrongful Termination Lawsuit

The trial court failed to conduct a “fact-sensitive and claim specific” analysis to determine if the First Amendment bars the former employee’s claims against a Roman Catholic archdiocese.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Discrimination, Employment Practices, First Amendment

Key point 8-12.01. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination but not from the other prohibited forms of discrimination.

Key point 8-21.02. Many state civil rights laws prohibit employers with a specified number of employees from discriminating in any employment decision on the basis of the sexual orientation of an employee or applicant for employment. Such laws generally exempt religious organizations.

An Indiana court refused to dismiss a former employee’s wrongful termination lawsuit against a Roman Catholic archdiocese on the ground that the trial court had yet to undertake a “fact-sensitive and claim specific” analysis that must precede analysis of whether the First Amendment bars the plaintiff’s claims against the archdiocese.

Background

A high school (the “school”) located in Indianapolis is affiliated with the Roman Catholic Archdiocese of Indianapolis. In 2006, the school extended a teaching contract to a language and social studies teacher (the “plaintiff”).

Over the ensuing decade, the school renewed the plaintiff’s teaching contract annually. In 2017, the plaintiff married his same-sex partner, who is a teacher at a Jesuit preparatory school (the “preparatory school”). The school last renewed the plaintiff’s teaching contract on May 21, 2019, for the 2019–2020 academic year.

On May 24, 2019, the school’s president informed the plaintiff that the archbishop of the archdiocese would soon require the school to “adopt and enforce morals clause language used in teacher contracts at Archdiocesan schools” in order for the school to retain its status as a recognized Catholic institution. The archdiocese issued the same directive to both the school and the preparatory school. The morals clause language provides as follows:

The Archdiocese recognizes that many teachers who contribute positively to the mission of the Church in forming young people through our Catholic schools are not practicing Catholics. For faculty members of other faith traditions, there remains an expectation that, regardless of their personal religious affiliations and beliefs, they will become knowledgeable of Catholic Church teachings, will be credible witnesses of the Catholic faith and will be models of Christian values. Catholic schools are ministries of the Catholic Church, and faculty members are vital to sharing the mission of the Church. Teachers are expected to be role models and are expressly charged with leading their students toward Christian maturity and with teaching the word of God. As role models for students, the personal conduct of every teacher and staff member must convey and be supportive of the teachings of the Catholic Church.

Determining whether a faculty member is conducting him/herself in accordance with the teachings of the Catholic Church is an internal Church/School matter and is at the discretion of the pastor, administrator, and/or Archbishop.

In a letter dated June 20, 2019, the preparatory school declined to terminate the employment of the plaintiff’s spouse. On June 21, 2019, the Archbishop decreed that the preparatory school could no longer designate itself as “Catholic”; the archdiocese no longer recognized the preparatory school as a Catholic institution; and the preparatory school would be omitted from The Official Catholic Directory.

On June 23, 2019, the school terminated the plaintiff’s teaching contract. That same day, the school issued a letter to parents, teachers, and staff that outlined the situation.

The plaintiff: archdiocese interfered with his contractual and employment relationship

On July 10, 2019, the plaintiff filed a complaint alleging that the archdiocese intentionally interfered with his contractual relationship and with his employment relationship with the school.

In his complaint, the plaintiff alleged that: (1) he is a homosexual male, who has been in a same-sex marriage since 2017; (2) he was under a teaching contract at the school in the 2019–2020 calendar year; (3) the archdiocese issued a directive, wherein the school was required to adopt and enforce morals clause language used in teacher contracts at archdiocese-recognized schools, was required to discontinue its employment of any teacher in a public, same-sex marriage, and could forfeit being formally recognized as a Catholic school in the archdiocese by failing to comply with the directive; and (4) the school subsequently terminated the plaintiff’s employment.

On May 7, 2021, the trial court dismissed the plaintiff’s lawsuit on the ground that the First Amendment guarantee of religious freedom deprived it of jurisdiction to adjudicate his claims.

The plaintiff promptly appealed, claiming that the trial court erred in dismissing his case because “[his] claims do not implicate internal church governance, require the courts to resolve an ecclesiastical controversy, or otherwise excessively entangle the courts with religion.” The archdiocese countered that, in issuing the directive to the school, it “act[ed] in accordance with ecclesiastical directive[,]” deriving from canon law, which courts cannot review or question.

The appeals court began its opinion by noting:

[T]he First Amendment to the United States Constitution . . . requires civil courts to refrain from interfering in matters of church discipline, faith, practice, and religious law. Thus, civil courts are precluded from resolving disputes involving churches if “resolution of the disputes cannot be made without extensive inquiry . . . into religious law and polity. . . .” Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976). The basic law in Indiana is that courts will not interfere with the internal affairs of a private organization unless a personal liberty or property right is jeopardized. “Thus, the articles of incorporation and by-laws of a not-for-profit corporation are generally considered to be a contract between the corporation and its members and among the members themselves.”

We have held that “personnel decisions are protected from civil court interference where review by the civil courts would require the courts to interpret and apply religious doctrine or ecclesiastical law. Ecclesiastical matters include “a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.”

But the court noted that the First Amendment does not prohibit courts from opening their doors to religious organizations. Instead, “a court can apply neutral principles of law to churches without violating the First Amendment. The First Amendment only prohibits the court from determining underlying questions of religious doctrine and practice.”

The court concluded that the trial court erred in dismissing the plaintiff’s claim. It noted that under the “church autonomy doctrine” churches have a First Amendment right to autonomy “in making decisions regarding their own internal affairs including matters of faith, doctrine, and internal governance.” But the First Amendment “does not immunize every legal claim against a religious institution and its members. The analysis in each case is fact-sensitive and claim specific, requiring an assessment of every issue raised in terms of doctrinal and administrative intrusion and entanglement.”

The court concluded that in this case the parties had yet to undertake the requisite “fact-sensitive and claim specific” analysis that must precede analysis of whether the First Amendment bars the plaintiff’s claims against the archdiocese.

What this means for churches

The court concluded that while it was barred by the “church autonomy doctrine” from adjudicating matters pertaining to a church’s internal affairs including matters of faith, doctrine, and internal governance, such a result was not proper without a “fact-sensitive and claim specific analysis requiring an assessment of every issue raised in terms of doctrinal and administrative intrusion and entanglement.”

Since the trial court had neglected to perform such an analysis, its dismissal of the plaintiff’s claims had to be reversed. Note that the court’s decision was based on a technicality, and not the merits of the archdiocese’s legal defenses. The case was remanded back to the trial court for a “fact-sensitive and claim specific analysis requiring an assessment of every issue raised in terms of doctrinal and administrative intrusion and entanglement.” The results of such an analysis may well result in a dismissal of the plaintiff’s claims.

There is one additional aspect of this case that deserves consideration. The plaintiff brought the following two claims against the archdiocese:

intentional interference with a contract, and

intentional interference with an employment relationship

These bases of church liability were addressed in a 2021 case in Pennsylvania that was discussed in the Legal Development on Tracy v. O’Bell, 268 A.3d 405 (Pa. App. 2021).

Payne-Elliott v. Roman Catholic Archdiocese, 180 N.E.3d 311 (Ind. App. 2021)

Legal Developments

Discrimination Claim Brought Against School that Fired Gay Teacher Allowed to Proceed

Except for religious discrimination, religious organizations are not exempt from other forms of discrimination prohibited under Title VII.

Richard R. Hammar, Attorney, CPA

Bio

State: North Carolina
Categories: Employment Practices, Ministerial Exception

Key point 8-12.01. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination but not from the other prohibited forms of discrimination.

A federal court in North Carolina ruled that a male teacher employed by a church school could sue the school for employment discrimination following his termination from employment based on his plans to marry another male.

Background

The plaintiff is a former teacher and substitute teacher at a Catholic high school (the “school”) in Charlotte, North Carolina.

The plaintiff came out as homosexual to his close friends and family in 1995. He was married to a woman for about 24 years; they divorced around 2002.

The plaintiff began working at the school as a substitute teacher in the fall of 2000. He was given a full-time position teaching English in the fall of 2001. After a year, he switched to teaching drama classes, which he taught full time until the fall of 2012.

When the plaintiff retired from full-time teaching, he stayed on as a substitute teacher with the school from the fall of 2012 until December 2014. He was not required to sign a contract for employment as a substitute teacher. He primarily substituted for English courses because he had expertise in that subject. He only taught nonreligious subjects during his time at the school.

While employed as a full-time teacher, the plaintiff received positive work evaluations. He also won the Inspirational Educator Award from North Carolina State University in 2011 and the Charlotte Catholic Teacher of the Year award in 2012. The school’s principal said that the plaintiff was the “only teacher who had been nominated for the award every year since its inception.”

In 2000, while he and his wife were separated, the plaintiff began a romantic relationship with another man. The two began living together in 2002, and in 2013 they decided to get married.

In October 2014, the plaintiff announced his engagement to his companion on Facebook with a post that read:

We will be married on May 2, 2015 . . . details to follow. . . . If you don’t agree with this . . . keep it to yourself. You never asked my opinion about your personal life and I am not asking yours.

The plaintiff informed the school’s assistant principal of his announcement several days after the Facebook post. The assistant principal congratulated the plaintiff but stated that the diocese would likely be unhappy with the message, although the assistant principal said he would not personally inform the diocese.

When he heard about the engagement announcement, the school’s chaplain met with the principal to discuss it. The principal believed that the plaintiff could not serve as a substitute because of his engagement to his male companion, and a decision was made not to have the plaintiff return as a substitute teacher.

The assistant principal informed the plaintiff by phone that he could no longer work as a substitute teacher because he “announced his intention to marry a person of the same sex.”

The plaintiff claimed that he was emotionally devastated and suffered a loss of identity and self-worth after being eliminated from the substitute teacher list of the school.

The plaintiff sues over sex discrimination

The plaintiff sued the school and diocese (the “church defendants”) claiming that they violated Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of sex (including sexual orientation) in employment decisions.

The court ruled that the church defendants’ termination of the plaintiff as a substitute teacher violated Title VII’s ban on employment discrimination based on sexual orientation.

The court acknowledged:

The Catholic Church believes marriage should be between a man and a woman. Human sexual expression belongs to “husband and wife alone.” Therefore, unmarried people should not engage in sexual intercourse, and same-sex couples should not engage in sexual expression because they cannot be husband and wife. [The Church] believes that while people who experience homosexual tendencies or thoughts are to be treated with respect and compassion, individuals who act on those thoughts engage in “disordered” conduct since their acts violate God’s plan for human sexuality and reproduction.

The school used several documents to inform their employees of its expectations for their behavior. These included a code of ethics, a personnel policies handbook, employment contracts, training sessions, and a faculty handbook.

These documents instructed employees to uphold the teachings and principles of the Catholic Church by serving as role models to students. As role models, they may not publicly engage in conduct or advocacy that contradicts the moral tenets of the Catholic Church.

The school discouraged teachers of secular subjects from instructing students on any sort of religious subject. The school asked that teachers who teach secular subjects refrained from instructing students on Catholic doctrine.

Secular teachers did not have to undergo religious training, did not have to be Catholic, and did not have to be Christian. Teachers, including the plaintiff, were required to accompany students to Masses held at the school, but they performed no religious function and served essentially as chaperones.

The court acknowledged that Title VII exempts religious organizations from the ban on discrimination in employment based on religion. But the court said Title VII does not exempt religious organizations from the ban on the law’s other categories of prohibited employment discrimination, including sexual orientation. The court explained:

“While the language of [Title VII] makes clear that religious institutions may base relevant hiring decisions upon religious preferences, Title VII does not confer upon religious organizations a license to make those same decisions on the basis of race, sex, or national origin.” [The church defendants’] argument would allow a religious employer to “convert any claim of discrimination on the basis of one of the protected classes under Title VII to a case of religious discrimination, so long as there was a religious reason behind the employment decision.” . . . “This would effectively strip employees of religious institutions of all Title VII protections, if the employer’s religion clashed with the employee’s protected class status.” . . . “If Congress had intended to allow religious employers to avoid liability for discriminating on the basis of race, sex, or national origin, it could have done so.” . . . “By its very terms, [Title VII] only applies to discrimination on the basis of religion. The ban on discrimination in employment on account of race, national origin, or sex is still applicable to religious organizations.”

The defendants: “Church autonomy doctrine” prevents interference

The church defendants argued that the “church autonomy doctrine” prevented a civil court from interfering with its termination of the plaintiff’s employment. The court noted that the church autonomy doctrine “protects a religious organization’s right to decide important matters of faith, governance, and religious doctrine.” But the court clarified that the church autonomy doctrine is “not without limits and does not apply to secular decisions, even when made by churches.”

The court also rejected the church defendants’ argument that the “ministerial exception,” which generally shields churches from employment discrimination claims involving ministers, prevented the court from resolving the plaintiff’s lawsuit since he was not a “minister.”

PDF Chart: Ministerial Status Under the Ministerial Exception

The court referenced two decisions of the United States Supreme Court addressing the definition of “minister” for purposes of the ministerial exception (see chart): Hosanna–Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012) and Our Lady of Guadalupe v. Morrissey-Berru, 140 S. Ct. 2049 (2020). Note that Our Lady of Guadalupe merged cases involving two different teachers at two different Catholic schools.

The North Carolina court concluded that “because of the abundant evidence that [the teachers in Hosanna-Tabor and Our Lady of Guadalupe] performed vital religious duties . . . the [Supreme Court] held that they qualified as ministers under the ministerial exception.” The court continued:

Unlike the teachers in these two most recent Supreme Court cases, very few facts weigh in favor of finding that Plaintiff is a minister. The only factor that weighs in favor of finding that he is a minister is that he works at a Catholic School with a Catholic mission and was tasked in his employment handbook with helping Defendants carry out their religious mission. However, many other facts in the record indicate that he was not a minister. . . . First, [the church defendants] did not bestow the title of “minister, with a role distinct from that of most of its members,” on Plaintiff. Plaintiff was primarily a substitute teacher of English and drama—purely secular subjects. Unlike the plaintiff in Hosanna-Tabor, who was issued a “diploma of vocation” and accorded the official title of “Minister of Religion, Commissioned,” Plaintiff here was a non-contractual secular employee. Furthermore, unlike the plaintiff in Hosanna-Tabor, Plaintiff was not required to be a Catholic or even a Christian to hold his post.

Second, . . . Plaintiff’s position did not “[reflect] a significant degree of religious training followed by a formal process of commissioning.” The plaintiff in Hosanna-Tabor had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher. Here, however, Plaintiff did not have to undergo any religious training. He attended some individual religious training sessions when serving as a full-time employee of [the school], but this does not amount to a significant amount of religious training.

Third, Plaintiff did not “[hold] [himself] out as a minister of the Church by accepting the formal call to religious service” or by claiming religious tax benefits. Plaintiff, as with other teachers at [the school], would sometimes begin class with a prayer. But sometimes he would have students lead prayer and sometimes there would be no prayer at all. The content of the prayer was not specified, the prayers could be ecumenical, and the prayers were not required.

Finally, Plaintiff’s position as substitute English and drama teacher did not directly “[reflect] a role in conveying the Church’s message and carrying out its mission.” [The school’s] teachers do not have to reference Catholic principles. The High School administration prefers that secular teachers, like Plaintiff, avoid discussing Catholic doctrine. Unlike all three teachers in Hosanna-Tabor and Our Lady of Guadalupe, Plaintiff did not teach religion in his classes and was not tasked with preparing students for participation in Catholic worship services.

What this means for churches

This case illustrates the following important points.

1. Religious organizations may discriminate based upon religion under Title VII—but not beyond

Title VII of the Civil Rights Act of 1964 bans discrimination in employment decisions on the basis of race, color, national origin, sex (including sexual orientation) and religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

2. Most churches are subject to Title VII or a similar state statute

While Title VII only applies to employers involved in interstate commerce and having at least 15 employees, most states have enacted similar laws that apply to smaller employers. As a result, most churches are subject to either Title VII or a comparable employment discrimination statute under state law.

3. Religious ban applies to both religious and “secular” positions

Many church leaders are unaware that Title VII’s ban on religious discrimination in employment decisions applies to both religious and “secular” positions in a church. This court explicitly acknowledged that the church and school were allowed to discriminate on the basis of religion in terminating the plaintiff, even if his position as a teacher was deemed to be “secular.” But they could not discriminate in employment decisions on the basis of the other forms of prohibited discrimination under Title VII (race, color, national origin, or sex). The court explained:

“While the language of [Title VII] makes clear that religious institutions may base relevant hiring decisions upon religious preferences, Title VII does not confer upon religious organizations a license to make those same decisions on the basis of race, sex, or national origin.” . . . [The church defendants] would allow a religious employer to “convert any claim of discrimination on the basis of one of the protected classes under Title VII to a case of religious discrimination, so long as there was a religious reason behind the employment decision.” . . . “This would effectively strip employees of religious institutions of all Title VII protections, if the employer’s religion clashed with the employee’s protected class status. . . . “If Congress had intended to allow religious employers to avoid liability for discriminating on the basis of race, sex, or national origin, it could have done so.” . . . “By its very terms, [Title VII] only applies to discrimination on the basis of religion. The ban on discrimination in employment on account of race, national origin, or sex is still applicable to religious organizations.”

4. The court said this case’s facts specifically favored the plaintiff

The court concluded:

The school claims that [Plaintiff] was fired for his support of gay marriage—something the Catholic Church opposes. Plaintiff claims he was fired, or at least suffered a more severe employment action, because of who he is as a gay man. The court respects the sincerity of the Catholic Church’s opposition to Plaintiff’s actions. With a slightly different set of facts, the court may have been compelled to protect the church’s employment decision. However, [whereas] here, Plaintiff lost his job because of sex discrimination and where he was working as a substitute teacher of secular subjects without any responsibility for providing religious education to students, the court must protect Plaintiff’s civil and employment rights.

5. Guidance for applying the ministerial exception

Lastly, the court’s opinion provides helpful guidance in determining if a teacher is subject to the ministerial exception. In particular, the court found the absence of a ministerial title, the lack of ministry training, and the absence of performing “vital religious duties,” along with the teacher’s decision not to use any tax benefits available to ministers, all pointed to determining the teacher was not a minister and the school could not use the ministerial exception as a defense.

Billard v. Charlotte Catholic High Sch., 2021 WL 4037431 (W.D.N.C. 2021)

Legal Developments

In a Battle of Bylaws, Court’s Intervention with Pastor’s Firing Found Proper

Appellate court says church dispute didn’t involve doctrine, meaning lower court’s decision could stand.

Richard R. Hammar, Attorney, CPA

Bio

State: North Carolina
Categories: Employment Practices

Key point 2-04.02. Some courts are willing to resolve disputes over the termination of clergy if they can do so without any inquiry into religious doctrine.

A North Carolina appeals court ruled that a trial court did not err in determining it had jurisdiction over a church pastor’s counterclaim because it related to church bylaws and did not involve ecclesiastical matters protected under the First Amendment of the United States Constitution.

Background

A church was incorporated as a North Carolina nonprofit corporation in 1988. At the church’s time of incorporation, the elders acted as the board of directors for the church.

On March 31, 2016, the elders hired a senior pastor for the church. The pastor was employed on an “at-will” basis. The employment agreement letter signed by the pastor in March of 2016 set out his terms of employment, in pertinent part, as follows:

An “at-will” employment relationship has no specific duration. This means that an employee can resign their employment at any time, with or without reason or advance notice. The [C]hurch has the right to terminate employment at any time, with or without reason or advance notice as long as there is no violation of applicable state or federal law.

Disagreement over which set of bylaws apply

The church had two different sets of bylaws, and the parties disagreed regarding which set governed the church’s operations during the time relevant to this case. The church adopted a set of bylaws (the “first bylaws”) in January of 1997. In April of 2008, the church applied for a bank loan and incorporated another set of bylaws (the “second bylaws”) as part of its loan application.

Effective June 17, 2019, the elders unanimously decided to terminate the pastor’s employment at the church. Despite his termination, the pastor ignored the instructions of the church and continued to conduct religious activities at the church.

The church filed a lawsuit on September 17, 2019, seeking an injunction to prohibit the pastor from accessing the church. In response, the pastor filed an answer and counterclaim.

The pastor’s counterclaim requested the following:

(I) Declaratory judgment against the Church and the Elders, declaring that: (i) [the Pastor] is the “Bishop” and “Senior Pastor” of the Church; (ii) [the Pastor] was not an “at-will” employee of the Church; (iii) the Elders’ attempt to terminate [the Pastor’s] employment with the Church was unauthorized by the then-controlling Second Bylaws; and (iv) [the Pastor] is entitled to recover back-pay and benefits earned since his purported termination;

(II) Preliminary and permanent injunction allowing [the Pastor] to resume employment with the Church, earning full compensation and benefits;

(III) Money damages from the Elders for breach of fiduciary obligations owed to [the Pastor] and to the Church;

(IV) Money damages from the Elders for wrongful interference with [the Pastor’s] employment relationship with the Church;

(V) Rights (i) to inspect the Church’s financial records, (ii) to receive an accounting from the Elders and the Church of Church funds or assets the Elders misappropriated, and (iii) to impose a constructive trust upon the Elders’ assets in an amount equal to any Church funds or assets found to have been misappropriated; and

(VI) Money damages from the Elders for civil conspiracy to remove [the pastor] from employment with the Church and to seize complete control of the Church’s operations.

The court concluded that it had jurisdiction over the matters and claims asserted in the pastor’s counterclaim. The church and the elders appealed, arguing that the trial court erred in concluding that it had jurisdiction, since such a conclusion would force the court to interpret and resolve ecclesiastical questions to resolve the claims.

The appeals court concluded that the trial court properly determined that it had jurisdiction over the pastor’s claims. It acknowledged that “the First Amendment of the United States Constitution prohibits a civil court from becoming entangled in ecclesiastical matters,” and it defined an ecclesiastical matter as one which “concerns doctrine, creed, or form of worship of the church, or the adoption and enforcement within a religious association of needful laws and regulations for the government of membership.”

However, civil courts do not violate the First Amendment “merely by opening their doors to internal church disputes,” the court said (quoting Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church).

“‘The dispositive question,’” the appeals court continued (quoting Smith v. Privette, 128 N.C. App. 490 (1998)), “‘is whether resolution of the legal claim requires the court to interpret or weigh church doctrine. . . . If not, the First Amendment is not implicated and neutral principles of law are properly applied to adjudicate the claim.’”

The court concluded:

As [the pastor] asserts, “[t]his is an employment dispute.” The core tenet upon which all of [the Pastor’s] claims depend is the determination of which bylaws governed the Church at the relevant time. [The Pastor] was an employee of the Church and now raises disputes regarding the Church’s bylaws. His claims do not fall under the protections of ecclesiastical matters within the First Amendment.

Resolving [his] claims requires a two-part determination: First, which bylaws were the governing authority at the relevant time, and whether [the Pastor’s] termination was in accordance with the proper bylaws? Second, whether the Elders properly determined that [the Pastor] was unfit to serve as Senior Pastor of the Church?

The first determination may be made by applying neutral principles of law without engaging in ecclesiastical matters. . . . The trial court must first determine which set of bylaws controlled at the relevant time, based solely on contract and business law. The court will then be able to assess whether the Church’s procedure for firing [the Pastor] complied with the requirements of the controlling bylaws. The court may determine that the Church’s method of terminating [the Pastor] did not comply with the requirements of the controlling bylaws, making [his] termination void. In this instance, this dispute would be resolved without the necessity of answering the second question—whether [the pastor] was unfit to serve—and engaging with ecclesiastical matters.

If the court determines that the Church’s method of terminating [the Pastor] did comply with the requirements of the controlling bylaws, then our Courts would be required to assess whether the Church, through its Elders, properly determined that [the Pastor] was unfit to serve as Senior Pastor. That determination cannot be made applying only neutral principles of law. Answering this second question may require an impermissible engagement with ecclesiastical matters. . . .

The present case requires determining which bylaws were in effect, whether new bylaws had been adopted by the Church, whether the Elders had the authority to terminate [the Pastor] and whether the termination was done in accordance with the proper bylaws. “This inquiry can be made without resolving any ecclesiastical or doctrinal matters” [quoting Tubiolo v. Abundant Life Church, Inc., 605 S.E.2d 161, 163 (2004)] . . . [and therefore [o]ur courts have jurisdiction over each of these determinations.

What this means for churches

This decision deviates from the vast majority of court rulings refusing to resolve internal church disputes involving the fitness or tenure of a pastor. Most courts (including the trial court in this case) have concluded that the relationship between a church and its pastor inevitably implicates religious issues that are off limits to the courts.

The General Rule of Nonintervention

Read more about how most courts have concluded they lack jurisdiction to resolve relationship disputes between a church and its pastor.

Additionally, note that the pastor’s counterclaim requested declaratory judgment against the church and the elders because he claimed, in part, that he—as the church’s pastor—was not an “at-will” employee of church. To better understand various issues related to “at-will” employment—including exceptions to note—see the section titled “Termination“ in the Legal Library.

Nation Ford Baptist Church Inc. v. Davis, 866 S.E.2d 11 (N.C. App. 2021)

Legal Developments

Former School Counselor’s Discrimination Claims Barred by Ministerial Exception

A woman fired because of her same-sex marriage could not pursue remedies against a Catholic school under federal and state laws, court holds.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Employment Practices, Ministerial Exception

Key point 8-10.01. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

An Indiana federal court ruled that the ministerial exception barred it from resolving the discrimination claims of a school counselor who was fired from a Catholic school for entering into a same-sex marriage.

The plaintiff’s termination

A woman (the “plaintiff”) worked for a private Catholic school (the “school”) in Indianapolis, Indiana, for nearly 40 years. After the school learned of her same-sex marriage, it declined to renew her employment contract on the grounds that her marriage violated Catholic teachings.

At the time of her termination, the plaintiff worked as Co-Director of Guidance Counseling. The plaintiff sued the school and the Roman Catholic Archdiocese of Indianapolis. She alleged discrimination, retaliation, and hostile work environment under Title VII of the Civil Rights Act of 1964, and interference with an employment relationship under state law.

The school filed a “motion for judgment on the pleadings,” asking the trial court to dismiss all of the plaintiff’s claims on the ground that she was a minister for purposes of the “ministerial exception.” The ministerial exception—a legal doctrine recognized by the US Supreme Court that is based upon the First Amendment’s religion clauses—generally bars the civil courts from resolving employment disputes between churches and ministers.

The trial court denied the school’s request. The school appealed, but a federal court affirmed the lower court’s ruling, allowing the case to proceed.

The school subsequently sought a “motion for summary judgment” in its favor, again arguing the ministerial exception applied. This time the federal court granted the motion. The decision provides churches and church-run schools with further insights into how courts continue to interpret and apply the doctrine.

Background: Understanding the plaintiff’s employment and her roles

The school operates “under the auspices of the Roman Catholic Archdiocese of Indianapolis.” According to the school’s mission statement, it pledges to “provide . . . an educational opportunity which seeks to form Christian leaders in body, mind, and spirit.” The school’s purpose is to “support and otherwise further the mission and purposes of” the archdiocese.

The court recounted the progression of the plaintiff’s employment and the school’s communications throughout her tenure.

The plaintiff’s employment

The plaintiff began working at the school during the 1978–1979 school year, and with the exception of the 1981–1982 school year (when she completed a master’s degree in music education), she worked there continuously until her termination in 2019.

She held several positions during her time at the school, including New Testament teacher, Choral Director, Fine Arts Chair, Guidance Counselor, and Co-Director of Guidance. She taught New Testament from 1982 to 1989.

In 1985, the school’s chaplain told the plaintiff that she must apply for catechesis certification in order to continue teaching religion, so she applied to become a catechist. Her application was approved, but it expired in 1990 and she never renewed it.

From 1988 to 1998, the plaintiff served as Choral Director, a role which required her to prepare students for the music used during the school’s monthly Mass.

In 1997, the plaintiff became a guidance counselor, a position she held for 10 years until she assumed the role of Co-Director of Guidance in 2007. She served as Co-Director of Guidance for 12 years until her termination in 2019.

Role as guidance counselor

Teachers and guidance counselors at the school are generally employed pursuant to one-year contracts. When this dispute arose, the plaintiff was employed under a “School Guidance Counselor Ministry Contract” and accompanying “Archdiocese of Indianapolis Ministry Description.”

According to the contract, the plaintiff agreed that she would be in default if she breached any duty, which included “relationships that are contrary to a valid marriage as seen through the eyes of the Catholic Church.” The Catholic Church defines marriage as a covenant “by which a man and a woman form with each other an intimate communion of life and love” (Catechism of the Catholic Church § 1660).

The contract also provided that the plaintiff “acknowledge[d] receipt of the ministry description that is attached to this contract and agree[d] to fulfill the duties and responsibilities listed in the ministry description.”

The ministry description identifies a guidance counselor as a “minister of the faith” who will “collaborate with parents and fellow professional educators to foster the spiritual, academic, social, and emotional growth of the children entrusted in his/her care.” The ministry description further specified:

As role models for students, the personal conduct of every school guidance counselor, teacher, administrator, and staff member, both at school and away from school, must convey and be supportive of the teachings of the Catholic Church.

The first “Role” identified in the ministry description is that the guidance counselor “Facilitates Faith Formation,” which included the following responsibilities:

“Communicates the Catholic faith to students and families through implementation of the school’s guidance curriculum, academic course planning, college and career planning, administration of the school’s academic programs, and by offering direct support to individual students and families in efforts to foster the integration of faith, culture, and life.”

“Prays with and for students, families, and colleagues and their intentions. Participates in and celebrates liturgies and prayer services as appropriate.”

“Teaches and celebrates Catholic traditions and all observances in the Liturgical Year.”

“Models the example of Jesus, the Master Teacher, in what He taught, how He lived, and how He treated others.”

“Conveys the Church’s message and carries out its mission by modeling a Christ-centered life.”

“Participates in religious instruction and Catholic formation, including Christian services, offered at the school.”

Guidance counselors were also expected to “use techniques and methods that foster a Christ-centered atmosphere”; “participate in spiritual retreats, days of reflection, and spiritual formation programs”; “proactively identif[y] and address physical, social, emotional, and spiritual needs of individuals and of the community of learners”; and “display Gospel values.”

The guidance department is also the only department whose staff members meet with every student individually throughout the year.

Role as Co-Director of Guidance

In her role as a guidance counselor and Co-Director of Guidance, the plaintiff attended monthly Masses, where she received communion, sang with the congregation, and also communicated guidance to other staff members regarding how to prepare students of different faiths for the school’s Catholic liturgy.

In addition to attending monthly Masses at the school, the plaintiff attended “Days of Reflection.” The school’s principal explained that these events, which occur before each school year, are “designed specifically for [the school’s] faculty and have a very direct, intentional focus on [the] Catholic mission and how each [faculty member] is called to live out that mission in [their] specific roles.”

The principal further explained that these gatherings are required only for the small group of faculty members “who are impacting kids in their spiritual life on a day-to-day basis.” This included guidance counselors.

At these Days of Reflection, the principal delivers a “call-and-response Commissioning Prayer” which “exhorts” the faculty members to embrace the Catholic ministry at the school. In that prayer, the faculty state that they “accept the responsibilities of [their] ministry”; “promise to share [their] faith with others”; and “promise to form youth and support families in the faith by following the example of our Master Teacher, Jesus Christ.”

At the end of the prayer, the leader states: “I hereby commission you to faithfully and joyfully serve as ministers of the faith in the Catholic schools of the Archdiocese of Indianapolis.”

Prayer is a regular occurrence at the school. Every morning different members of the school community would deliver a morning prayer over the school PA system. The plaintiff delivered the morning prayer on more than one occasion, as did several other individuals, including the principal, the chaplain, the campus minister, and students. While the plaintiff did not otherwise lead prayer or pray with students as part of her regular duties as guidance counselor or Co-Director of Guidance, other guidance counselors testified that prayer with students is a regular part of their job.

Applying the ministerial exception

In granting the school’s motion for summary judgment, the Indiana federal court analyzed the doctrine of the ministerial exception.

The First Amendment to the United States Constitution provides, in part: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” These two “religion clauses” ensure that, among other things, religious institutions are free “to decide matters of ‘faith and doctrine’ without government interference,” said the Indiana court, quoting the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012).

The federal court noted this quote from a 2020 Supreme Court decision in Our Lady of Guadalupe:

This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles. Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020).

The Indiana federal court said the ministerial exception dictates that “courts are bound to stay out of employment disputes involving those holding certain important positions within churches and other religious institutions,” again quoting the Supreme Court’s decision in Our Lady of Guadalupe.

The court concluded that the plaintiff’s position as Co-Director of Guidance fell within the ministerial exception:

To begin, religious instruction and formation are central to [the school’s] philosophy and mission, and [the plaintiff’s] employment documents “specified in no uncertain terms” that [the school] expected her to perform a variety of religious duties and to help carry out the school’s mission. . . . While [the school’s] characterization of the role is not dispositive, “the school[’s] definition and explanation of the role is important. . . .”

The School Guidance Counselor Ministry Description designated a guidance counselor as a “minister of the faith” and charged her with “foster[ing] the spiritual . . . growth” of her students. The ministry description stated that “Catholic schools are ministries of the Catholic Church, and school guidance counselors are vital ministers sharing the mission of the Church. School guidance counselors are expected to be role models and are expressly charged with leading students toward Christian maturity and with teaching the Word of God.” The ministry description also identified “Facilitates Faith Formation” as the guidance counselor’s first “Role,” which required communicating the Catholic faith to students, praying with and for members of the [school] community, teaching and celebrating Catholic traditions, modeling the example of Jesus, conveying the Church’s message, and participating in religious instruction and Catholic formation. Like the employee in Hosanna-Tabor, [the plaintiff] was “expressly charged”. . . with “leading students toward Christian maturity and with teaching the Word of God.”

The court noted that the plaintiff downplayed the religious nature of her role, and highlighted her secular duties, such as scheduling students for classes, helping students with college applications, providing SAT and ACT test prep tools, administering AP exams, and offering career guidance. She also testified that she did not pray with her students as part of her regular duties as guidance counselor or Co-Director of Guidance, though she did deliver the morning prayer on more than one occasion.

The court then stated:

[T]hat the plaintiff characterizes her work as a guidance counselor in purely secular terms does not change the result because it would be inappropriate for this court to draw a distinction between secular and religious guidance offered by a guidance counselor at a Catholic school. . . . Here, what qualifies as secular or religious guidance in the context of a Catholic high school is exceedingly difficult to identify, and “the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith.”

The court concluded that the ministerial exception barred all of the plaintiff’s claims.

What this means for churches

In the 2012 Hosanna-Tabor case, the Supreme Court unanimously affirmed the ministerial exception, but it declined to define the term “minister.” That is understandable, since it would be difficult to fashion a definition that would apply in all cases. The Supreme Court left the definition of this essential term to other courts in future cases.

The court in this case concluded that the ministerial exception applied to a non-ordained guidance counselor in a Catholic parochial school, noting that “[a]s a general rule, 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, he or she should be considered ‘clergy,’” quoting Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164 (4th Cir. 1985). This is a broad definition extending beyond formal ordained status.

The court stressed that “the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith.”

Go Deeper with Ministerial Exception and More

Turn to attorney Frank Sommerville’s series on employment issues to learn how to properly apply the ministerial exception and create strong job descriptions.

One other aspect of this case merits attention. The court placed great weight on the plaintiff’s job description. The importance of job descriptions in ministerial exception cases cannot be understated.

Churches should review job descriptions, especially for non-ordained staff, to see if employees who might meet the definition of “minister” for purposes of the ministerial exception have job descriptions that describe and stress their religious functions.

Caution. Before dismissing someone for violating the church’s moral teachings, leaders should answer the five questions found in the “Discrimination Based on Religion or Morals” section of the Legal Library. This section also includes tips and case studies pertinent to this topic.

Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., 553 F. Supp. 3d 616 (S.D. Ind. 2021)

Legal Developments

Unmarried Pregnant Employee Can Sue Religious School for Discrimination

Appeals court says “knowledge or mere observation” of woman’s pregnancy is not a “permissible basis” to fire her under state law.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Employment Practices

Key Point 8-12.04. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. The Act permits religious organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do so consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

A New Jersey appeals court ruled that a pregnant, unmarried teacher could pursue a lawsuit under her state’s nondiscrimination law against a religious school. The reasons: The school did not possess a policy explicitly identifying extramarital sexual relations as a ground for dismissal, and the school failed to investigate the treatment of married and unmarried males and married and unmarried female employees to determine if unmarried pregnant females were being treated less favorably in violation of state law.

Background

An unmarried woman (the “plaintiff”), who held a bachelor’s degree in art education, was hired by a Catholic parochial school (the “defendant”) “in September 2011 as a teacher’s aide ‘in the toddler room.’ Two years later, [she] also began teaching art for students in kindergarten to eighth grade. Plaintiff never taught courses about religion nor did she act as a minister or any other member of the clergy,” a state appeals court stated.

When the defendant hired the plaintiff, she received a copy of the defendant’s handbook. Moreover, she was aware of the Catholic Church’s prohibition against premarital sex.

The appeals court said:

In 2014, while having a conversation about defendant wanting plaintiff to assume additional responsibilities, [plaintiff] advised the school’s principal that she was pregnant and that if she were to perform additional work, she would like to be paid more. . . .

A few weeks later, [the principal], on her own, decided to fire plaintiff for engaging in premarital sex. However, before doing so, defendant hired a replacement who was a married woman with children. When defendant finally fired plaintiff, [the school] told her she was being terminated because she was pregnant and unmarried. It was undisputed that plaintiff’s termination related only to that fact as compared to her job performance. It was also undisputed that defendant never made any “inquiry of any employee as to whether they were pregnant, unmarried, engaged in premarital sex, divorced, or otherwise violated any of the Church’s doctrines.”

The court also noted:

[D]efendant required all of its “lay faithful” teachers, “whether employed in areas of ministry or other kinds of services,” to abide by a code of conduct that was not “contrary to the discipline and teachings of the Catholic Church . . . or which may result in scandal . . . or harm to the ministry of the Catholic Church.” Additionally, defendant’s handbook contained numerous provisions aligning with the Church’s tenets, including a section labeled “Christian Witness” which required teachers to practice a “value-centered approach to living and learning in their private and professional lives.” The handbook also provided that each staff member “integrate culture, faith, and life through the teachings of all subject areas in the light of the Gospel so that the children can become ‘good Christians and honest citizens.’”

However, it was also undisputed that

[n]one of the policies or provisions of the handbook expressly identified premarital sex as a prohibited conduct. According to the school’s principal, . . . there was no specific statement in any document that would inform someone that if they became pregnant while being unmarried that they would be violating [any] policy. There was no statement in the documents that a violation of any provision would result in immediate termination from employment.

Fired teacher claims unlawful pregnancy discrimination

The plaintiff sued the defendant, claiming the religious school had engaged in sex discrimination in violation of state law because it dismissed her solely on the basis of her pregnancy. This, she argued, amounted to unlawful pregnancy discrimination because the defendant failed to investigate the disciplinary action taken by the defendant against males or nonpregnant females.

The court dismissed the case, and the plaintiff appealed. The state appeals court reversed the trial court and ruled that the plaintiff could pursue her claim of discrimination in court.

The court observed that “knowledge or mere observation of an employee’s pregnancy alone is not a permissible basis to detect violations of the school’s policy and terminate an employee.” It “acknowledged defendant’s right to terminate a teacher whose employment was conditioned upon adherence to its religious principles.”

However, the court stated, “[d]efendant cannot enforce its prohibition by only disciplining women whose premarital sexual relations are disclosed through their pregnancy.”

The court also noted:

“[A] school [cannot] use the mere observation or knowledge of pregnancy as its sole method of detecting violations of its premarital sex policy.” . . . “Women [cannot] be subject to termination for something that men would not be, [as] that is sex discrimination, regardless of the justification put forth for the disparity.”

What this means for churches

This case is important for two reasons.

First, church leaders should understand that dismissing unmarried, pregnant employees without investigating extramarital sexual relations by unmarried or married males and unmarried or married females may constitute pregnancy discrimination in violation of state and federal laws.

That is, if nonpregnant employees who engage in extramarital sexual relations are not disciplined for their behavior, then a church that dismisses pregnant females for the same conduct may be committing unlawful discrimination based on pregnancy.

Second, one of the court’s reasons for rejecting the defendant’s motion to dismiss the case was the failure of the defendant to list “pregnant out of wedlock” or “extramarital sexual relations” among the grounds for termination of employment. The vague references to moral behavior in the defendant’s policy manual were not sufficient to provide the plaintiff with notice as to what behaviors were prohibited.

The defendant’s principal acknowledged that there was no specific statement in any document that “would inform someone that if they became pregnant while being unmarried that they would be violating any policy.” The lesson is clear. Church employment policies should identify with specificity the grounds for termination. Crisitello v. Saint Theresa School, 242 A.3d 292 (N.J. App. 2020).

Legal Developments

Employee in Same-Sex Civil Union Sues Religious School

The “church autonomy doctrine” did not bar the plaintiff’s claims of discrimination, says court.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Employment Practices

Update. After this decision, the religious school sought a “motion for summary judgment” in its favor, again arguing the ministerial exception applied. This time the federal court granted the motion, ruling that the ministerial exception barred it from resolving the former employee’s discrimination claims. Read Richard Hammar’s full analyis of this ruling and what it means for churches and church-run schools.

Key Point 8-12.01 Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

A federal court in Indiana ruled that a female counselor at a Catholic school whose employment was terminated because of her civil union with another woman could sue the school for discrimination so long as her position was not “of substantial religious importance.”

Background

A Catholic school did not renew the employment contract of its Co-Director of Guidance Counseling (the “plaintiff”) based on her civil union with another woman in violation of the Catholic Church’s moral teachings.

The plaintiff had worked for the school and Archdiocese for 39 years and held several positions, including choral director and religion, music, and drama teacher. She also served as a guidance counselor from 1998 until 2007, and as Co-Director of Guidance Counseling from 2007 until her termination in 2019. In 2017, the Archdiocese and school adopted a “School Guidance Counselor Ministry Contract” and an “Archdiocese Ministry Description” for school guidance counselors.

Quoting from the job description, the court said:

The job description specified that “[a]s role models for students, the personal conduct of every school guidance counselor . . . must convey and be supportive of the teachings of the Catholic Church,” which includes “the belief that all persons are called to respect human sexuality and its expression in the Sacrament of Marriage as a sign of God’s love and fidelity to His Church.”

The court stated that “[a]n employee would be in default of her contract if she violated the Church’s teachings on marriage.”

Quoting directly from the contract, the court said:

“The School Guidance Counselor shall be deemed to be in default under this contract in the event of any breach of duty hereunder, including, but not limited to . . . [r]elationships that are contrary to a valid marriage as seen through the eyes of the Catholic Church; and . . . any personal conduct or lifestyle at variance with the policies of the Archdiocese or the moral or religious teachings of the Roman Catholic Church.”

Additionally, as pointed out by the court, the Code of Canon Law of the Catholic Church instructs that marriage is a “covenant” between a “man and a woman,” and that homosexual acts are “contrary to natural law” and “do not proceed from a genuine affective and sexual complementarity.”

The church asked the court to dismiss the suit

In May of 2019, stated the court, the school “officially notified [the plaintiff] by letter that her contract would not be renewed for the following school year. The letter stated that [her] ‘civil union is a violation [of her] contract and contrary to the teaching of the Catholic Church.’”

The plaintiff responded by suing the school and Archdiocese (the church defendants) for unlawful discrimination under Title VII of the Civil Rights Act of 1964. Title VII generally bans employment discrimination by employers with 15 or more employees on the basis of race, color, national origin, sex, or religion.

The church defendants asked the court to dismiss the case on the ground that Title VII permits religious organizations to discriminate in employment decisions on the basis of religion. The court declined to do so.

While the court conceded that religious organizations can discriminate on the basis of religion in their employment decisions, this exemption did not apply to the other forms of discrimination prohibited by Title VII (i.e., race, color, national origin, sex). As a result, the plaintiff’s claim of discrimination based on sexual orientation (a form of sex discrimination) was not barred by the religious exemption.

The court noted that the central question was: “Does a religious reason for an employment decision bar a plaintiff’s Title VII claim when the religious reason also implicates another protected class [i.e., sex]?”

It concluded:

[The church] defendants’ argument would allow a religious employer to convert any claim of discrimination on the basis of one of the protected classes under Title VII to a case of religious discrimination, so long as there was a religious reason behind the employment decision. This would effectively strip employees of religious institutions of all Title VII protections, if the employer’s religion clashed with the employee’s protected class status.

The court addressed the “church autonomy doctrine”

The court observed:

Consider a religious employer that genuinely believes the Bible forbids interracial marriage. Under the church defendants’ interpretation of [Title VII] that employer would be free to terminate an employee who married someone of a different race. Such an expansive reading of [Title VII] would sweep far more broadly than what Congress intended, as evidenced by its repeated refusal to completely exempt religious institutions from Title VII. There is no principled difference between that hypothetical employment decision and this case. Just as that employer would be subject to Title VII’s prohibition on racial discrimination, defendants are subject to Title VII’s prohibition on sexual orientation discrimination.

The court rejected the church defendants’ argument that the plaintiff’s claims were barred by the church autonomy doctrine:

[The church autonomy doctrine] ensures that churches have the “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 186, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U.S. 94, 116, 73 S.Ct. 143, 97 L.Ed. 120 (1952)). “This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution’s central mission. And a component of this autonomy is the selection of the individuals who play certain key roles.” Our Lady of Guadalupe Sch. v. Morrissey-Berru,_U.S._, 140 S. Ct. 2049, 2060, 207 L.Ed.2d 870 (2020).

The court again quoted from the US Supreme Court’s decision in Hosanna-Tabor: “Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance.”

The church defendants insisted that they considered school guidance counselors to be ministers of the faith since they “facilitate faith formation in several ways, including praying with students, teaching and celebrating Catholic traditions, and conveying the Church’s message and modeling a Christ-centered life.” But the plaintiff disputed this characterization of her role.

She claimed that “her job duties and responsibilities as a guidance counselor did not include any religious or teaching duties.” She claimed that “she never performed any important religious duties for the church,” and asserted that “her role as guidance counselor did not include leading prayer or other religious services, nor did it include integrating religious teachings into her interactions with students.”

The court concluded that a “factual dispute” existed between the parties concerning the nature of the plaintiff’s job duties, and therefore it was inappropriate to dismiss the case without further factual development.

What this means for churches

The court conceded that Title VII of the Civil Rights Act of 1964 permits religious organizations to discriminate in employment decisions on the basis of religion, but it concluded that this exemption did not apply to the other forms of discrimination prohibited by Title VII (i.e., race, color, national origin, sex).

As a result, the plaintiff’s claim of discrimination based on sexual orientation (a form of sex discrimination) was not barred by the religious exemption.

However, the court recognized that the church autonomy doctrine would prohibit it from litigating the plaintiff’s claim of sexual orientation discrimination if the plaintiff’s position in the school was “a position of substantial religious importance.” And, since the evidence regarding the religious nature of the plaintiff’s duties was disputed, the court ordered the case to proceed to trial where the nature of the plaintiff’s position could be fully explored and determined.

Starkey v. Roman Catholic Archdiocese, 2019 WL 7019362 (S.D. Ind., 2020)

Legal Developments

Teachers at a Religious Preschool Not Considered Ministers

California Appeals Court says the four-factor test for ministerial status in Hosanna-Tabor was not satisfied.

Richard R. Hammar, Attorney, CPA

Bio

State: California
Categories: Employment Practices

Key Point 8-10.01

. The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

A California appeals court ruled that the civil courts could resolve a dispute regarding the claim of teachers in a synagogue’s preschool to benefits under a state wage-and-hour law.

Background and teaching requirements

The California Labor Commissioner sued a Jewish synagogue (the “Temple”) claiming that it had violated various provisions of the California Labor Code by failing to provide its preschool teachers with rest breaks, uninterrupted meal breaks, and overtime pay.

The Temple is a Reformed Jewish synagogue whose mission is to promote the Jewish faith and serve and strengthen the Jewish community.

The Temple’s early childhood center (ECC), which employs approximately 40 teachers, is an onsite preschool for children five years of age and under. The ECC’s curriculum has a significant secular component.

ECC teachers spend much of the school day engaged with children in indoor and outdoor play at various learning centers. These learning centers include blocks, puzzles, games, books, and science, and promote reading readiness, writing readiness, and math readiness. Teachers also work with children on social skills, including sharing and kindness, and assist with toileting, meals, and snacks.

The ECC’s curriculum has a religious component of introducing children to Jewish life, religious ritual, and Judaic observance. The religious curriculum includes the celebration of Jewish holidays, weekly Shabbat observance, recitation of the ha-motzi (grace blessing) before meals and snacks, and an introduction to Jewish values such as kehillah (community), hoda’ah (gratitude), and shalom (peace and wholeness). All ECC teachers participate in weekly Shabbat services and teach religious concepts, music, singing, and dance.

The ECC is part of the Temple’s religious and educational mission, and it fulfills a religious obligation of the Temple. The ECC exists to instill and foster a positive sense of Jewish identity and to develop in children favorable attitudes toward the values and practices of Judaism.

ECC teachers are not required to be adherents to the Temple’s religious philosophy or, indeed, to be Jewish. As a result, while some of the ECC’s teachers are Jewish, others are non-Jewish or do not identify with any faith tradition. For example, one former teacher was raised as a Catholic and, prior to taking a job at the ECC, was employed as a teacher and librarian at a private Catholic elementary school. Another teacher is a practicing Catholic; and yet another taught catechism at a church. ECC teachers are not ordained as religious leaders and do not hold themselves out as ministers of the faith.

ECC teachers are not required to have any theological training, to be educated about Judaism, or to be proficient in Hebrew. As a result, some ECC teachers are hired without any knowledge of Jewish religion or practice.

Once employed, teachers are not required to undertake a course of theological study. Instead, the ECC provides teachers with Judaic reading materials, including the Temple’s “holiday packets,” which include explanations of each of the Jewish holidays and the symbols, Hebrew vocabulary, foods, and songs associated with those holidays. In addition, teachers receive guidance on religious observance from the ECC’s rabbis and administrators trained in Jewish education.

Lawsuit focused on the “non-exempt” classification

The California Labor Commissioner sued the school, alleging that the Temple classifies its noncredentialed teachers as “non-exempt,” but does not provide them with 10-minute rest breaks, uninterrupted 30-minute meal breaks, or overtime pay, as required by California’s wage-and-hour laws. The Commissioner alleged wage-and-hour violations, and sought meal and rest period premiums, overtime pay, statutory and civil penalties, and an injunction.

The Temple asked the court to dismiss the case on the ground that the ECC was a religious school and its preschool teachers were “ministerial employees,” and therefore the case was barred by the so-called “ministerial exception,” recognized by the United States Supreme Court in a landmark 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012) (Hosanna-Tabor). In the Hosanna-Tabor case, the Supreme Court barred the civil courts from resolving employment disputes between churches and ministers.

Were these preschool teachers ministers?

The court dismissed the case, concluding that the Temple’s preschool teachers were “ministers” within the meaning of the ministerial exception, explaining that the exception is not limited to the heads of religious congregations, and prior decisions had recognized that preschool teachers in religious schools could serve ministerial functions.

In the present case, it was undisputed

that the ECC fulfills a religious obligation of the Temple; ECC teachers further the Temple’s mission and implement Judaic curriculum; ECC teachers teach children about Jewish religious holidays; ECC teachers participate in weekly Shabbat services; ECC teachers teach student[s] to say the Jewish grace blessing before each meal and snack; ECC teachers instruct children in saying the Shema prayer and Oseh Shalom, a prayer for peace; teaching children about religious practices, holidays, and rituals fulfills religious commandments; ECC teachers help transmit Judaism to future generations; Judaism does not preclude a non-Jew from teaching the Jewish religion; early Jewish childhood education impacts not only the child, but the Jewish identity of the child’s parents and family; upon a child’s completion of the ECC program, the majority of families continue their children’s Jewish education at the Temple’s schools; and teaching music, singing, and dance to students fulfills a religious obligation and Biblical directive.

Under these facts, the court said, “a reasonable trier of fact could not conclude that ECC teachers do not serve a ministerial function.”

The Commissioner appealed, claiming that the Temple’s preschool program was primarily secular; ECC teachers were not required to study or to adhere to the Temple’s theology to be hired or maintain employment; ECC teachers were not ordained or otherwise recognized as spiritual or religious leaders; ECC teachers did not hold themselves out as ministers; the ECC is open to children of parents who are not adherents of the Temple’s theology; and the Temple’s rabbis, not its teachers, were primarily responsible for the children’s religious instruction and spiritual leadership.

A state appeals court reversed the trial court’s decision and ruled in favor of the Commissioner. It concluded:

Considering all the relevant circumstances of the teachers’ employment, we conclude the ministerial exception does not foreclose the Commissioner’s claims. Although the ECC’s teachers are responsible for some religious instruction, we do not read Hosanna-Tabor to suggest that the ministerial exception applies based on this factor alone. To the contrary, it was central to Hosanna-Tabor’s analysis that a minister is not merely a teacher of religious doctrine—significantly, he or she “personifies” a church’s (or synagogue’s) beliefs and “ministers to the faithful.” The record in the present case is clear that the Temple’s teachers did not play such a role in synagogue life. Indeed, as we have said, many of the Temple’s teachers are not members of the Temple’s religious community or adherents to its faith. Thus, while the teachers may play an important role in the life of the Temple, they are not its ministers.

The court noted that the ECC teachers did not satisfy the Supreme Court’s four-factor test for ministerial status in the Hosanna-Tabor case.

First, the church in Hosanna Tabor “held [the employee] out as a minister,” with a role distinct from that of most of its members.

Second, the employee had the title of minister, which reflected significant religious training followed by a formal process of commissioning.

Third, the employee held herself out as a minister by accepting “the formal call to religious service” and claiming a special housing allowance on her taxes available only to employees earning their compensation in the exercise of the ministry.”

Fourth, the employee’s job duties “reflected a role in conveying the church’s message and carrying out its mission.” She taught her students religion three times per week and led her students in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and about twice a year she led the chapel service by choosing the liturgy, selecting the hymns, and delivering a short message based on Bible verses. Thus, she “performed an important role in transmitting the Lutheran faith to the next generation.”

The California court concluded that the ECC teachers were not “ministers” under this four-part test.

What this means for churches

The court narrowly construed the Hosanna-Tabor case. Perhaps most importantly for churches to note, the Supreme Court in Hosanna-Tabor concluded that a finding of ministerial status cannot be based solely on the amount of time a person spends on religious functions.

The Court observed:

The issue before us, however, is not one that can be resolved by a stopwatch. The amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed.

The Supreme Court acknowledged that the teacher’s religious duties “consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects.”

However, the Court noted that it was unsure whether any church employees devoted all their time to religious tasks: “The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities.” Su v. Temple, 244 Cal. Rptr.3d 546 (Cal. App. 2019).

For additional insights, church leaders should see “Cases Recognizing the Ministerial Exception” and “Cases Not Recognizing the Ministerial Exception” in Pastor Church & Law.

Update. The Temple has petitioned the United States Supreme Court to reverse this decision. The Court has agreed to review a similar case involving the scope of the ministerial exception in the context of religious schools: Our Lady of Guadalupe School v. Morrissey-Berru.

Legal Developments

Church’s Director of Music Was a “Minister” for Purposes of the Ministerial Exception

Court could not resolve director of music’s discrimination lawsuit against the church following his demotion.

Richard R. Hammar, Attorney, CPA

Bio

State: Illinois
Categories: Employment Practices

Key point 8-10.1 The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

A federal court in Illinois ruled that a church’s director of music was a “minister” for purposes of the ministerial exception, and therefore it could not resolve his discrimination lawsuit against the church following his demotion.

The Catholic Bishop of Chicago hired an adult male (the “plaintiff”) in 1992 to serve as the director of music at a local Catholic church. In 2015, the plaintiff was demoted from a full-time position to a part-time position without benefits. As a result of the demotion, the plaintiff’s duties as director of music were taken away, meaning that he no longer participated in the budget process; he was not sent to Archdiocesan Music Committee activities; his access to the church became limited; he became responsible for maintaining his own music skills; he no longer taught music to the children at the church’s school; and he no longer held practices for the church choirs.

After the demotion, the plaintiff performed only the duties of organist at church functions. And, even as the organist, he no longer had any discretion in picking what music to perform during Mass. Instead, he played music selected by the parish pastor. Sometime after the demotion, the plaintiff was fired.

The plaintiff later sued the Catholic Bishop of Chicago, alleging national origin and age discrimination. In particular, he asserted that he was demoted from his position as director of music because he is Polish and due to his age, and then was fired when he complained about the demotion.

The bishop argued that all musicians at Mass—including the organist—”exercise a genuine liturgical ministry” by leading and sustaining the assembly’s “sung prayer.” The plaintiff claimed that instrumental music, including organ music, is not necessary to a Catholic Mass or worship, and that “as an organist with no discretion in what music was played or how he played it, his role was neither necessary nor ministerial—and in fact could be replaced with recorded music.”

The court agreed with the bishop and dismissed the case. It noted that the “ministerial exception” prevents the civil courts from resolving employment disputes between churches and “ministers.” The purpose of the 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.” Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012). The court observed that the exception’s applicability depends on whether the employee qualifies as a “minister.”

Noting that a “minister” can be someone other than “the head of a religious congregation,” and that there is no “rigid formula for deciding when an employee qualifies as a minister,” the court cited the following factors to be considered in deciding if a church employee is a minister:

Do a church employee’s job duties reflect a role in conveying the church’s message and carrying out its mission;

The formal title given to the employee by the church;

Whether the employee holds himself or herself out as a minister; and

Whether the employee performed “important religious functions . . . for the church.”

The court quoted from an official Catholic paper on liturgical music: “All pastoral musicians—professional or volunteer, full-time or part-time, director or choir member, cantor or instrumentalist—exercise a genuine liturgical ministry. . . . These musicians serve the Church at prayer and are ministers who share the faith, serve the community, and express the love of God and neighbor through music. They are a valued and integral part of the overall pastoral ministry of the parish.” Even more specifically, the paper emphasizes the importance of the organ in worship: “Among all other instruments which are suitable for divine worship, the organ is ‘accorded pride of place’ because of its capacity to sustain the singing of a large gathered assembly, due to both its size and its ability to give ‘resonance to the fullness of human sentiments, from joy to sadness, from praise to lamentation.’ The organ ‘in some ways reminds us of the immensity and the magnificence of God.’”

The court concluded that the plaintiff “performed a ministerial function by performing organ music at worship and ritual ceremonies, and took part in conveying the church’s message to congregants.”

The plaintiff insisted that he was not a “minister” since he did not participate in picking music, and as an organist, he only “robotically played notes from sheet music.” The court disagreed. On the first point, the court noted that a lack of authority to pick music did not render a musician outside the ministerial exception. On the second point, “the plaintiff’s view of ’robotic’ music performance cannot overcome official church doctrine. . . . An accompanist who does nothing more than play the sheet music still performs a ministerial function.”

The court concluded that the plaintiff, a director of music in a Catholic church, was a minister for purposes of the ministerial exception, and therefore the court could not adjudicate his discrimination claims against the church.

What this means for churches

This case provides helpful guidance in the definition of the term “minister” for purposes of the ministerial exception. In 2012, the United States Supreme Court unanimously affirmed the ministerial exception, but declined to define the term “minister.” That is understandable, since it would be difficult to fashion a definition that would apply in all cases. The Supreme Court left the definition of this essential term to other courts in other cases.

The court stressed that a “minister” can be someone other than “the head of a religious congregation,” and that there is no “rigid formula for deciding when an employee qualifies as a minister,” and proceeded to list four factors to be considered in deciding if a church employee is a minister: (1) Do a church employee’s job duties reflect a role in conveying the church’s message and carrying out its mission; (2) the formal title given to the employee by the church; (3) whether the employee holds himself or herself out as a minister; and perhaps most importantly (4) whether the employee performed “important religious functions . . . for the church.”

One other aspect of this case merits attention. The court placed great weight on the plaintiff’s job description. The importance of job descriptions in ministerial exception cases cannot be understated. Churches should review job descriptions, especially for non-ordained staff, to see if employees who might meet the definition of “minister” for purposes of the ministerial exception have job descriptions that highlight and stress their religious functions. Sterlinski v. Catholic Bishop, 319 F. Supp. 3d 940 (N.D. Ill. 2018).

See also “Clergy—Discipline and Removal,” 2018 U.S. Dist. LEXIS 169275 (D.S.C. 2018), and “Ministerial Exception,” Lee v. Baptist Church, 903 F.3d 113 (3rd Cir. 2018), in Legal Developments section of the website.

Legal Developments

Churches May Fire an Employee for Violating Moral Standards If Done Consistently

The dismissal of an employee for violating a church’s moral teachings may expose a church to liability.

Richard R. Hammar, Attorney, CPA

Bio

State: New Jersey
Categories: Employment Practices

Key Point 8-12.4 . Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. The Act permits religious organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do so consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

A New Jersey court ruled that churches are free to dismiss employees for violating the church’s moral standards so long as they do so consistently and, for example, do not treat male employees who engage in extramarital sexual conduct more leniently than pregnant, unmarried female employees.

A school owned and operated by a Catholic church adopted the religious policies on professional and ministerial conduct espoused by the Archdiocese, including a code of ethics. That code states: “Church personnel shall exhibit the highest Christian ethical standards and personal integrity,” and “shall conduct themselves in a manner that is consistent with the discipline, norms and the teachings of the Catholic Church.” The policies further preclude immoral conduct by employees, which is defined as “conduct that is contrary to the discipline and teachings of the Catholic Church, and which may result in scandal . . . or harm to the ministry of the Catholic Church.” They apply to clergy members and the “lay faithful,” which are defined as all “paid personnel whether employed in areas of ministry or other kinds of services.” The school’s faculty handbook also contains numerous provisions aligning with the church’s tenets, including a section labeled “Christian Witness,” which required teachers to practice a “value-centered approach to living and learning in their private and professional lives.”

None of the policies or provisions of the handbook expressly identified premarital sex as prohibited conduct. According to the school’s principal, there was no specific statement in any document that “would inform someone that if they became pregnant while being unmarried that they would be violating an official policy.” There was also no statement in the documents that a violation of any provision would result in immediate termination from employment. The only specifically identified prohibited behavior was contained in the church’s code of ethics, which included a chapter titled “Prevention of Immoral Conduct: Guidelines for Ethical Behavior.” Under that chapter, in a section titled “Standards for the Archdiocese as to Prevention of Immoral Conduct,” specific prohibited conduct was defined as:

a. Immoral conduct.

b. Procurement or participation in the procurement of abortion, or committing homicide or euthanasia.

c. Possession or distribution of pornographic material.

d. Adultery, flagrant promiscuity or illicit co-habitation.

e. Abuse of alcohol, drugs, or gambling.

f. Theft, fraud, or any other form of misappropriation or misuse of Church funds or property.

g. Sexual exploitation or abuse.

h. Physical assault and fighting.

i. Conduct which is illegal under the laws of our country, state or local government.

In September 2011, the school hired a lay teacher for toddlers (the plaintiff). The plaintiff signed an acknowledgement that she understood and agreed with the school’s ethics code and faculty employment handbook. She was already familiar with the church’s teachings, including its prohibition against premarital sex. In 2014, during a meeting with the school principal, the plaintiff stated that she was pregnant, and if she were given additional work, she would like to be paid more than her current salary.

The principal subsequently told the plaintiff to either resign or she would be terminated because she was pregnant and unmarried. The principal later explained:

Plaintiff was terminated . . . after I became aware that she was carrying a child in an unmarried state, which necessarily meant that she had engaged in sex outside of marriage. Sex outside of marriage is not permitted in the Catholic Church. Sex outside of marriage violates the tenets of the Catholic Church. Thus, plaintiff violated her obligations under the policies, including the code of ethics. She has not exhibited the highest Christian ethical standards and personal integrity, which were required of her. Furthermore, she has not conducted herself in a manner that is consistent with the discipline, norms and teachings of the Roman Catholic Church.

The principal stressed that the school “has nothing against pregnant teachers” as long as they were “married at the time of being with child.”

The plaintiff sued the school, alleging that its articulated reason for terminating her employment was a mere pretext for discrimination on the basis of her pregnancy and marital status of being “unmarried.” The trial court dismissed the plaintiff’s claims on the ground that they were barred by the First Amendment guaranty of religious freedom. The plaintiff appealed.

A state appeals court began its opinion by noting that civil courts cannot decide purely religious issues, and that “we also acknowledge a Catholic school’s right to terminate a teacher who has publicly engaged in conduct regarded by the school as inconsistent with its religious principles.” However, the limitation on a civil court’s involvement in religious disputes over doctrine or conduct “does not apply to civil adjudication of purely secular legal questions that do not entail theological or doctrinal valuations, even if they involve some background issues of religious doctrine. . . . Religious organizations are not entitled to a blanket exemption from all secular regulations because of their status as a religious institution.”

The plaintiff claimed that she was a victim of sex and marital status discrimination because male teachers who engaged in extramarital sexual relations were not dismissed. The court concluded that such a claim, if proven, could be resolved by the civil courts because it would not involve any inquiry into church doctrine or teachings. The court sent the case back to the trial court for further consideration.

What this means for churches

This case demonstrates that the dismissal of an employee for violating a church’s moral teachings may expose a church to liability. There are steps that a church can take to mitigate this risk. Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:

Is there sufficient evidence to support our decision?

Did we inform the employee, in an employee handbook or other document that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?

How will we describe the basis for our decision? The best description will refer to the church’s doctrinal tenets and scriptural citations. Stay away from words such as “pregnancy” that can have a “secular” meaning, and that diminish the “religious exemption” available to churches under most federal and state civil rights and employment laws.

How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally? Or, have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that an employee who is protected against discrimination by state or federal law is not treated less favorably than other employees in previous cases.

Have we consulted with an attorney before taking final action?

Crisitello v. St. Theresa School, 2018 WL 3542871 (N.J. App. 2018).

Legal Developments

‘Ecclesiastical Abstention’ Fails to Prevent School Employee’s Discrimination Lawsuit

The “ecclesiastical abstention doctrine,” which bars the courts from resolving issues of internal church governance, did not prevent a church’s preschool director from suing the church for disability discrimination.

Richard R. Hammar, Attorney, CPA

Bio

State: Kentucky
Categories: Employment Practices, Judicial Resolution of Church Disputes, Schools

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A Kentucky appeals court ruled that the “ecclesiastical abstention doctrine,” which bars the courts from resolving issues of internal church governance, did not prevent a church’s preschool director from suing the church for disability discrimination.

In 2000, a woman (the “plaintiff”) was named director of a preschool and daycare center operated by a church. In her role as director, the plaintiff oversaw operation of the center on a daily basis; she was responsible for purchasing food, classroom materials, and toys using an account set up specifically for the center and separate from the church’s operating accounts; and she managed the center’s employees, including all scheduling, discipline, training, and payroll tasks in accordance with the center’s employee handbook, which was written separately from any church directive or policy.

As a condition for receiving federal education funds, the center was prohibited from posting religious materials and artifacts in the classrooms. Throughout her tenure, the plaintiff had no association with the church, had no religious duties, and made no religious decisions of any kind.

Beginning in June of 2009, the plaintiff was supervised by the church’s newly appointed head pastor. The pastor did not attend functions, teach, or have any connection with the center apart from his supervisory role over the church. He indicated that the plaintiff ran the center “in isolation” from the church, did not have a religious education, was not a minister, did not teach the Methodist faith, and was not involved with the church’s governance or any church committee.

On December 31, 2009, the plaintiff’s husband passed away. The church permitted her to take an extended leave of absence to grieve for her husband. She struggled with bouts of depression and anxiety. When she returned to the center, she initially worked part-time, occasionally arriving late, leaving early, or missing whole days. The church continued paying her full-time salary. Between February and November 2010, the pastor and an associate pastor often spoke with the plaintiff regarding her absences, tardiness, and other issues stemming from her depression and anxiety. No disciplinary actions were instituted or documented.

On November 9, 2010, the pastor summoned the plaintiff to a meeting regarding an injury sustained by one of the center’s students the previous day. Following the meeting, the plaintiff was placed on suspension. This was the first adverse employment action against the plaintiff in her 20 years with the center. On November 15, 2010, the pastor signed a letter on behalf of the church terminating the plaintiff’s employment. As reasons for her firing, the church alleged the plaintiff had forced children to go through a drain pipe resulting in injury to a child, frequently yelling at the children, physically grabbing and poking the children, and leaving the children unsupervised. Believing these allegations were demonstrably false and merely pretexts for her dismissal, on January 25, 2011, the plaintiff sued the church, alleging disability discrimination in violation of state law. At trial, the jury found in favor of the plaintiff and awarded her damages for lost wages and emotional distress. In addition, the plaintiff’s motion for attorney’s fees was granted.

The church appealed the decision on two grounds. First, it claimed the trial court erred in not dismissing the case on the basis of the ecclesiastical abstention doctrine, which generally bars the civil courts from interfering with internal church disputes pertaining to issues of faith, polity, and doctrine. And second, it claimed the trial court erred in failing to dismiss the case on the basis of the church’s discovery following the plaintiff’s termination of misconduct that would have warranted her termination had it been known.

The appellate court ruled that the ecclesiastical abstention doctrine did not require a dismissal of the plaintiff’s lawsuit:

That a church is a party to a suit does not immediately deprive our courts of the ability to adjudicate the dispute. The mere inclusion of a religious organization as a party to a suit does not necessarily implicate the ecclesiastical-abstention doctrine. Secular courts are not prohibited from hearing cases involving religious organizations where the dispute can be resolved by the application of neutral principles of secular law. We reiterate that the intent of ecclesiastical abstention is not to render civil and property rights unenforceable in the civil court simply because the parties involved might be the church and members, officers, or the ministry of the church.

The court noted that the related “ministerial exception” applies to “employment claims—especially discrimination claims—asserted against a religious institutional employer by an employee who is directly involved in promulgating and espousing the tenets of the employer’s faith.”

The court concluded that neither doctrine applied to this case:

[This] case involves nothing more than an employment termination dispute which can be easily and fully resolved by resort to neutral principles of secular law. No internal church governance is at issue. Further, as previously stated, the church utterly failed to present an adequate basis upon which the trial court could rely to rule in its favor. Even today, no evidence exists that the daycare center was a religious institution nor that the plaintiff was involved in promulgating and espousing the tenets of the employer’s faith. In fact, the proof is just the opposite—the two entities were separate. The church’s tardy attempt to support its position is unavailing. Timing is everything, and the church has been late to the ball since it first received the invitation. We will not accept the request to save it from its own mistakes. The trial court did not err in denying the motion to dismiss.

What this means for churches

This case illustrates what many courts call the “ecclesiastical abstention” doctrine. Under this doctrine the civil courts are barred by the First Amendment religion clauses from resolving most internal church disputes. While not using the terminology “ecclesiastical abstention,” the United States Supreme Court described the basic principle in a 1976 ruling in which it noted that the civil courts lack jurisdiction over internal church disputes that are “strictly and purely ecclesiastical in [their] character … a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).

As this case demonstrates, the “ecclesiastical abstention” doctrine does not preclude civil courts from resolving all internal church disputes. While the courts may not exercise jurisdiction “over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,” many courts have ruled that they can resolve internal church disputes so long as no inquiry into church doctrine is involved. United Methodist Church v. the plaintiff, 2018 WL 480532 (Ky. App. 2018).

Legal Developments

Ministerial Exception Prevents Court from Resolving Discrimination Lawsuit

The court ruled that the “ministerial exception” prevented it from resolving a lawsuit of a former principal at a Catholic high school claiming that the school’s failure to renew her employment contract amounted to unlawful sex, age, and disability discrimination.

Richard R. Hammar, Attorney, CPA

Bio

State: Indiana
Categories: Employment Practices, Judicial Resolution of Church Disputes

Key point 8-10.1. The civil courts have consistently ruled that the First Amendment prevents the civil courts from applying employment laws to the relationship between a church and a minister.

A federal court in Indiana ruled that the “ministerial exception” prevented it from resolving a lawsuit of a former principal at a Catholic high school claiming that the school’s failure to renew her employment contract amounted to unlawful sex, age, and disability discrimination.

A woman (the “plaintiff”) served as a public elementary school principal for 17 years. In late July 2012, she was hired as the principal of a Catholic high school for the 2012-2013 school year. In late spring 2013, she was offered, and accepted, the position of school principal for the 2013-2014 school year. On March 3, 2014, the plaintiff was informed that her contract would not be renewed for the following year. The plaintiff sued the Diocese for employment discrimination based on sex, age, and disability as well as various state-law claims.

The plaintiff had signed a written one-year contract for each of the 2012-2013 and 2013-2014 school years. The contract for the 2013-2014 school year included a “Ministerial Duties/Morals Clauses” that provided, in part:

To be [the] Principal in a Catholic school is to accept a ministry. The ministry of the Principal must clearly reflect the Catholic Christian spirit of love, understanding, and humility. This ministry is witnessed not only in the manner in which the Principal performs his/her tasks, but also in the example the Principal sets for the teachers and students both in and outside the School and parish, and including everyone associated with the School, parish, and diocese … . Furthermore, in carrying out his/her duties under this agreement, the Principal agrees to faithfully reflect the teachings of the Roman Catholic Church, in mind and in deed, and at all times, both in and out of School, to abide by the official teachings of the church, as interpreted by the Bishop of the Diocese. [The] Principal understands that every subject taught in the School is embedded in Catholic theology and that part of the Principal’s ministry in the School is to apply the theology, doctrine, and teachings of the Catholic Church in every aspect of the School and in every duty of a principal. Failure to comply with the terms of the Part A “Ministerial Duties/Morals Clauses” may result in the immediate termination of this contract.

The Diocese asked the court to dismiss the lawsuit on the basis of the “ministerial exception,” which generally bars the civil courts from resolving employment disputes between churches and ministers.

The plaintiff insisted that the ministerial exception did not bar her claims, since: (1) she was an educator in a Catholic environment, and most of her job responsibilities were similar to the 17 years she spent as a principal in a public school; (2) while the school where she was employed was a Catholic high school, it had multiple students who were not Catholic, including Baptist, Lutheran, and Jewish students; and (3) there were only two persons at her former school that held “ministry” titles: a chaplain, and the head of campus ministry.

The court agreed with the diocese that the plaintiff’s claims were barred by the ministerial exception. It noted that the United States Supreme Court recognized the ministerial exception in a 2012 ruling. Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 132 S. Ct. 694 (2012). The Supreme Court reasoned:

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The Supreme Court held that the exception “is not limited to the head of a religious congregation” and declined “to adopt a rigid formula for deciding when an employee qualifies as a minister” for purposes of the exception. Rather, the Court found the following four factors indicated that the plaintiff, who was a “called teacher” at a Lutheran Church and School, qualified as a minister under the facts of that case: (1) the Church held the plaintiff out as a minister; (2) the title reflected a significant degree of religious training; (3) the plaintiff held herself out as a minister; and (4) the plaintiff’s job duties included important religious functions.

The Indiana court considered these four factors in finding that the plaintiff, as the principal of a Catholic high school, was a “minister” for purposes of the ministerial exception.

(1) The Diocese held the plaintiff out as a minister

In concluding that this factor was met, the court referred to the “Ministerial Duties/Morals Clauses” in the plaintiff’s employment contract, which affirmed that “to be Principal in a Catholic school is to accept a ministry,” and that “in carrying out his/her duties under this agreement, the Principal agrees to faithfully reflect the teachings of the Roman Catholic Church, in mind and in deed, and at all times, both in and out of School, to abide by the official teachings of the church.”

(2) A title that reflects religious training

The court noted that this factor weighed against ministerial status since there was nothing “inherently religious about the title of Principal.”

(3) Plaintiff held herself out as a minister

In concluding that the plaintiff held herself out as a minister of the church, the court noted that she had accepted the principal position, which was explicitly described as one of ministry in the Employment Agreement that she signed. As a result, she knew that she was expected to “faithfully reflect the teachings of the Roman Catholic Church, in mind and in deed, at all times, both in and out of School,” and she agreed that “part of the Principal’s ministry in the School is to apply the theology, doctrine, and teachings of the Catholic Church in every aspect of the School and in every duty of a principal.” In other words, “she accepted that she would be seen as a ministerial leader.”

The court concluded that this third factor was neutral in applying the ministerial exception.

(4) Important religious functions

The court conceded that there was no evidence that the plaintiff “performed religious functions such as leading daily prayers or teaching religion lessons,” and concluded that this factor “weighs against applying the ministerial exception.”

In attempting to refute her status as a minister, the plaintiff cited a dictionary definition of “minister” as a person whose job involves leading church services, performing religious ceremonies, and providing spiritual or religious guidance. The court countered: “It is irrelevant that she is not a member of the clergy and that she would not be considered a minister for purposes of Church governance” because “the issue here is one of civil, not canon, law, and ‘minister’ for purposes of the ministerial exception has a far broader meaning than it does for internal church purposes … . In determining whether an employee is considered a minister for the purposes of applying this exception, we do not look to ordination but instead to the function of the position,” citing Alicea-Hernandez v. Catholic Bishop, 320 F.3d 698, 703 (7th Cir. 2003).

The court concluded:

Having considered all the evidence of record in light of the factors applied by the United States Supreme Court in Hosanna-Tabor, the Court finds that the ministerial exception applies to the plaintiff’s role as principal of [the] High School. As noted in Hosanna-Tabor, a core value of the Free Exercise Clause is to “protect a religious group’s right to shape its own faith and mission through its appointments.” Although the plaintiff’s title and training and the lack of evidence of involvement in religious activity weigh against applying the ministerial exception, the ministerial role assigned to and accepted by the plaintiff as the head of the Catholic High School are sufficient for the Court to apply the ministerial exception in this case … . Requiring [the] High School to reinstate the plaintiff as principal or by punishing it for not renewing her contract would violate the School’s freedom under the [Constitution] to select its own ministers.

Thus, because the plaintiff was a minister within the meaning of the ministerial exception, her federal employment claims must be dismissed.

What this means for churches

This case is important for two reasons.

First, the court applied the four-factor test enunciated by the Supreme Court in Hosanna-Tabor in deciding if the plaintiff was a “minister” subject to the ministerial exception. Note that the court concluded that the plaintiff was a minister, though only one of the four factors supported minister status (one was neutral, and two did not support minister status).

Second, the court declined to follow a dictionary definition of the term “minister” in evaluating the application of the ministerial exception. Instead, it noted that the term “minister” for purposes of the ministerial exception “has a far broader meaning than it does for internal church purposes.” Ginalski v. Diocese, 2016 WL 7100558 (N.D. Ind. 2016).

Legal Developments

Employee’s Sexual Harassment Lawsuit Dismissed Due to Lack of ‘Viable Claim’

Court dismissed a sexual harassment lawsuit brought by a former female employee of a denominationally affiliated hospital on the ground that the alleged offenses were not sufficiently severe or pervasive.

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Employment Practices, Sexual Harassment

Key Point 8-12.5 Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if the employer has adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

A federal court in Pennsylvania dismissed a sexual harassment lawsuit brought by a former religious hospital employee on the ground that the alleged offenses were not sufficiently severe or pervasive.

Title VII of the Civil Rights Act of 1964 prohibits covered employers (i.e., those with 15 or more employees that are engaged in interstate commerce) from discriminating against any employee or applicant “with respect to compensation, terms, conditions or privileges of employment, because of such individual’s sex.” Sexual harassment is a form of sex discrimination prohibited by Title VII.

The courts have identified two types of sexual harassment—”quid pro quo” and “hostile environment.” Quid pro quo harassment refers to conditioning employment opportunities on submission to a sexual or social relationship, while hostile environment harassment refers to the creation of an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. In general, an employer is liable for a supervisory employee’s hostile environment sexual harassment.

A former female employee (the “plaintiff”) sued a denominationally affiliated hospital, claiming that she had been the victim of unlawful sexual harassment in violation of Title VII’s ban on sex discrimination in employment. She claimed that three brief comments by her supervisor and a nonsupervisory employee amounted to hostile environment sexual harassment. She conceded that she was relying on only these three incidents to establish her claim for sexual harassment, but she insisted that these instances were “representative of the overall environment” and that she was “subjected to this type of behavior on a daily basis.”

A federal district court dismissed the plaintiff’s sexual harassment claim. It began its opinion by observing:

To state a prima facie claim of hostile work environment sexual harassment, a plaintiff must plead that: (i) she suffered intentional discrimination because of her sex; (ii) the discrimination was severe or pervasive; (iii) the discrimination detrimentally affected her; and (iv) the discrimination would negatively affect a reasonable person in plaintiff’s position.

To rise to the level of actionable harassment, the workplace must be permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.

The court concluded that even if all of the plaintiff’s allegations were true, and “as inappropriate for the workplace as the conduct may be,” the plaintiff failed to establish a viable claim: “Simply put, on this record, this behavior does not rise to an actionable level. These three incidents, even when taken together, are neither sufficiently severe nor pervasive to establish a hostile work environment claim.” The court cited the following examples of prior cases in which the courts rejected sexual harassment claims: (1) ten incidents of alleged inappropriate harassment over a ten-year period was not sufficiently severe or pervasive, Davis v. City of Newark, 285 Fed. App. 899 (3d Cir. 2008); (2) the issuance of two letters of reprimand over a four-month period was not sufficiently severe or pervasive, Gonzalez v. Potter, 2010 WL 2196287 (W.D. Pa. 2010); (3) a male supervisor’s alleged comments to a female employee that “the last time I saw you, you were quiet, a virgin, and unmarried,” “when the cat’s away the mice will play,” and “you have good child bearing hips” were not sufficiently severe or pervasive, Porta v. Dukes, 1998 WL 470146 (E.D. Pa. 1998).

What this means for churches

Sexual conduct and speech of fellow employees may be offensive, but it will not necessarily constitute sexual harassment unless there is sexually offensive conduct in the workplace that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”

An employer may be liable for a supervisor’s acts of “hostile environment” sexual harassment even if it was not aware the acts were happening when they occurred. The basic rule may be stated as follows: If a supervisor creates an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature, this is “hostile environment” sexual harassment for which the employer will be legally responsible if the supervisor takes any “tangible employment action” against the employee. A tangible employment action includes “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” The employer is liable under such circumstances whether or not it was aware of the harassment.

An employer may be liable for a supervisor’s acts of hostile environment sexual harassment even if it takes no tangible employment action against the victim. But, in such cases, the employer may assert an “affirmative defense” to liability. This defense consists of two elements:

1. The employer “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” This generally means that the employer adopted a written sexual harassment policy that was communicated to employees, and contained a complaint procedure.

2. The victim “unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” This generally means that the victim failed to follow the complaint procedure described in the employer’s sexual harassment policy.

As a result, it is a “best practice” for a church with employees to adopt a sexual harassment policy, since this will serve as a defense to liability for a supervisor’s acts of “hostile environment” sexual harassment to the extent that a victim of such harassment does not follow the policy. Peacock v. UPMC Presbyterian, 2016 WL 890574 (W.D. Pa. 2016).

Legal Developments

A Tennessee Missions Agency’s Employment Contract Requires Employees’ Lawsuit to Be Resolved on Basis of Virginia Law

The goal of choice-of-law clauses in agreements is to have the most favorable state law apply to a transaction.

Richard R. Hammar, Attorney, CPA

Bio

State: Tennessee
Categories: Employment Practices

Key point A choice-of-law provision designates the state law that will govern a legal transaction.

A federal appeals court ruled that a "choice of law" provision in a missions agency's employment contract requiring all employment disputes to be adjudicated on the basis of Virginia law was enforceable and required a missionary couple's lawsuit in a Tennessee court asserting various employment claims had to be resolved on the basis of Virginia law.

In 2006, a married couple (the "plaintiffs") began investigating the possibility of becoming missionaries with the International Mission Board of the Southern Baptist Convention (IMB). In 2008, the couple accepted missionary positions in India. The couple sold their home and most possessions, and the wife resigned from her job of 17 years. At the time of their assignment, the plaintiffs signed an employment contract stating: "Once approved for service, your relationship to the IMB will be that of an 'at will' employee of a Virginia religious, non-profit corporation, with all aspects of that relationship originating in Virginia and controlled by Virginia law."

The plaintiffs worked in New Delhi from January 2009 until November 2010. In October 2010, the IMB terminated the couple's employment, purportedly because they were no longer needed. The couple sued the IMB, and the Southern Baptist Convention, in a federal district court in Tennessee, claiming that their employment was terminated after they informed their superiors of illegal practices in the construction of the office building in New Delhi. These practices included bribes, false documents to procure permits, and unsafe building practices. The plaintiffs' lawsuit alleged various theories of liability under Tennessee law, including breach of contract and retaliatory discharge. The plaintiffs claimed that the choice-of-law provision should be disregarded because the IMB did not execute the contract in good faith. The plaintiffs claimed that Tennessee law should govern the dispute based on Tennessee's adherence to the doctrine of lex loci contractus, a presumption that a contract is "to be governed by the law of the jurisdiction in which it was executed absent a contrary intent."

The district court unequivocally rejected the application of this doctrine to the plaintiffs' employment relationship with the IMB, based on the clearly expressed "choice of law" provision that made Virginia law controlling in all employment disputes between the parties. The plaintiffs appealed to a federal appeals court, claiming that lex loci contractus governs and requires the application of Tennessee law to the parties' dispute.

The district court determined that the choice-of-law provision stating that Virginia law governs the employment relationship between the plaintiffs and the IMB was valid and enforceable. Accordingly, it concluded that the plaintiffs' "common law claims filed under Tennessee law related to their employment are deficient as a matter of law."

The appeals court agreed with the IMB that the choice-of-law provision was enforceable, and required the plaintiffs to assert claims under Virginia law in the Tennessee courts.

What this means for churches

Choice-of-law clauses are common in commercial agreements. The goal is to have the most favorable state law apply to a transaction. They are rarely used by religious organizations, but in some cases they should be considered. To be enforceable, most courts have ruled that a choice-of-law provision must designate the laws of a state having some connection with the parties (e.g., the location of at least one party, or the place where the contract was executed or will be performed). Church leaders should discuss this potentially significant topic with an attorney when drafting employment agreements and other documents, to see if the laws of another state would be more favorable to the church, and if there are sufficient contacts to warrant the choice of another state's laws. Nollner v. Southern Baptist Convention, 628 Fed.Appx. 944 (6th Cir. 2015).

Legal Developments

Court May Rule on ‘Secular Contract’ Between Church and Former Employee

Church Law and Tax Report Court May Rule on ‘Secular Contract’ Between Church and Former

State: Texas
Categories: Employment Practices

Church Law and Tax Report

Court May Rule on ‘Secular Contract’ Between Church and Former Employee

Key point 8-24. A reference letter is a letter that evaluates the qualifications and suitability of a person for a particular position. Churches, like other employers, often use reference letters to screen new employees and volunteers. Churches often are asked to provide reference letters on current or former workers. The law generally provides employers with important protections when responding to a reference letter request. However, liability may still arise in some cases, such as if the employer acts with malice in drafting a reference letter.

Key point 9-07. The First Amendment allows civil courts to resolve internal church disputes so long as they can do so without interpreting doctrine or polity.

A Texas court ruled that the “ecclesiastical abstention doctrine” and the “ministerial exception” did not prevent it from resolving various legal claims brought by a former church employee against the church. A woman (the “plaintiff”) was dismissed from her position as Elementary Ministries Director at a Presbyterian church. She sent a demand letter to the church asserting that she had been terminated for making allegations of sexual harassment against a church elder. She later signed a “Confidential Separation Agreement and Release” under the terms of which the church paid her $25,000 and agreed that she could “classify the end of the employment relationship as a resignation, rather than a termination … for purposes of … future employment offers.”

The agreement included a confidentiality clause applicable to the plaintiff and a provision that “in the event that she is asked about her separation of employment, she may reply only with the words ‘we have reached an amicable parting,’ but will not otherwise indicate the nature of the resolution of these matters.” In addition, the parties agreed not to “disparage” the other.

The plaintiff subsequently was hired by a seminary as its development officer. This position required her to participate in fundraising efforts for the seminary. An elder at the church where she was previously employed also served on the board of trustees for the seminary. He contacted the seminary’s board chair to ask whether the plaintiff’s references had been checked. The board chair contacted the president of the seminary, who instructed its vice president for business affairs to check the plaintiff’s references. The vice president then contacted the head of human resources at the church, who told him that she could not discuss the reason the plaintiff left “because of a severance agreement,” but she added that she “could not think of a circumstance under which the church would rehire her or that she would want to come back.”

The vice president also contacted the church’s executive pastor, who stated that he “could not disclose the reasons why the plaintiff left because of the existence of an agreement … but it should be obvious that there were issues, otherwise there would not be an agreement.” The executive pastor also stated that “it would be difficult for her to carry out her duties to raise funds from the church” or from “anywhere in Houston.”

The seminary terminated the plaintiff’s employment because she misrepresented the circumstances surrounding her departure from the church, and its concern that she would not be able to solicit donations for the seminary.

The plaintiff sued the church on the following grounds:

breach of contract (for violating the severance agreement’s “non-disparagement” clause);
intentional infliction of emotional distress;
defamation; and
fraudulent inducement.

The church claimed that the trial court lacked jurisdiction because the church is immune from liability under both the “ecclesiastical abstention doctrine” and the “ministerial exception.” The church also claimed that (1) the plaintiff had waived her right to enforce the provisions of the severance agreement by giving the church “authorization to provide full details concerning her past employment” to the seminary in her employment application; (2) the church’s behavior was not extreme and outrageous for purposes of the intentional infliction of emotional distress claim; and (3) the plaintiff waived her fraudulent inducement claim by releasing all claims that existed as of the date of the agreement.

The trial court dismissed all claims against the church, and the plaintiff appealed.

Application of the ecclesiastical abstention doctrine and ministerial exception

The plaintiff argued on appeal that the trial court erred in ruling that the ecclesiastical abstention doctrine prevented it from resolving her legal claims because they involved the breach of a “secular contract.”

The court noted that the ecclesiastical abstention doctrine provides that the First Amendment guaranty of religious freedom prohibits the civil courts “from exercising jurisdiction over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” Under this doctrine, “courts will not attempt to right wrongs related to the hiring, firing, discipline, or administration of clergy … . Although such wrongs may exist and be severe, and although the administration of the church may be inadequate to provide a remedy, the preservation of the free exercise of religion is deemed so important a principle it overshadows the inequities which may result from its liberal application.”

However, the Texas Supreme Court has also recognized that while the First Amendment affords broad protection to the free exercise of religion, it does not necessarily bar all claims which may touch on religious conduct. For example, “churches, their congregations, and hierarchy exist and function within the civil community [and] can be as amenable to rules governing civil, contract, or property rights as any other societal entity.

In determining whether the ecclesiastical abstention doctrine applies, “courts must analyze whether a particular dispute is ecclesiastical or simply a civil law controversy in which church officials happen to be involved.” To resolve this issue, courts “must look to the substance and effect of a plaintiff’s complaint to determine its ecclesiastical implication … . A court may interpret church documents under neutral principles of law when it can do so in purely secular terms without relying on religious precepts in resolving the conflict … . However, if the matter cannot be determined by the court without resolving a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body.”

The plaintiff claimed that the severance agreement stated that “the church agrees that it will not disparage [the plaintiff],” and that the church violated the agreement by stating, through its agents, that: (1) she “would not be able to raise funds on behalf of the seminary anywhere in Houston or within her region”; (2) it “could not think of a circumstance under which the church would rehire her or that she would want to come back”; and (3) “it should be obvious that there were issues, otherwise there would not be an agreement.”

The church claimed that a determination of whether it disparaged the plaintiff would fall within the ecclesiastical abstention doctrine because it would require the court to evaluate (1) the reasons the church decided to terminate her and to settle her claims for sexual harassment, (2) the decision to notify the seminary of the church’s issues with her, and (3) whether such decisions were in the best interest of the church, the seminary, and the Presbyterian community in Houston.

The court concluded that the ecclesiastical abstention doctrine did not apply:

We may interpret a contract in a civil law controversy in purely secular terms when doing so does not require us to rely on religious precepts or resolve a religious controversy … . We are not required to intervene in the hiring, firing, discipline, or administration of the church’s clergy, address the church’s standards of morality, or address any other matters traditionally held to involve religious doctrine. Similarly, we are not required to interpret any church constitution, by-laws, or other governing documents. Finally, we are not asked to decide matters relating to the congregational or hierarchical nature of the church. We conclude that this lawsuit, revolving around the church’s purported disparagement of the plaintiff in violation of the Agreement, is a civil law controversy in which church officials happen to be involved. Accordingly, the ecclesiastical abstention doctrine does not apply.

The ministerial exception

The church claimed that the “ministerial exception” required dismissal of the plaintiff’s claims. Under this doctrine, “if an employee is a minister, courts are precluded from reviewing the employment decision regardless of whether the claims are ecclesiastical in nature.” The court noted that the United States Supreme Court has recognized the ministerial exception; however, “the Court concluded that the exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.” Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 132 S.Ct. 694 (2012).

The court ruled, on procedural grounds, that the ministerial exception did not apply, since the church had used it in an attempt to deprive the court of jurisdiction rather than raising it as an “affirmative defense” in its response to the plaintiff’s lawsuit.

Waiver of claims

The church argued that the plaintiff waived all her claims by filling out an online employment application for her position at the seminary in which she “authorized all her prior employers to provide full details concerning her past employment.”

The plaintiff insisted that this authorization did not waive her rights under the confidentiality and antidisparagement clauses of the severance agreement, and that she was entitled to rely on the church to honor its obligation under the agreement not to disparage her.

The court concluded that even if the plaintiff had authorized the church to speak with the seminary when it was considering her for employment, the church “nevertheless was bound to communicate in accordance with the terms of its Agreement. We conclude that in signing the authorization, the plaintiff did not unequivocally manifest the intent not to assert any of her rights under the Agreement. In other words, she did not authorize the church to disparage her. Accordingly, the church has not conclusively established that the plaintiff intended to waive her claims by signing the authorization.”

The emotional distress claim

The court noted that to succeed with an intentional infliction of emotional distress claim, a plaintiff is required to prove that a defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” This means that “except in circumstances bordering on serious criminal acts, even claims stemming from heinous acts … rarely have merit as intentional infliction claims.”

The court concluded: “Here, the church’s actions purportedly resulted in the plaintiff’s termination of employment with the seminary based on the church’s instigating a conversation with the seminary about her departure from the church and providing an unfavorable reference. While these actions may be interpreted as callous, meddlesome, mean-spirited, officious, overbearing, and vindictive, they do not rise to the level of extreme and outrageous conduct required to maintain an intentional infliction of emotional distress claim.”

The severance agreement

The plaintiff asserted that the church was guilty of “fraudulent inducement” by inducing her to sign the severance agreement on the basis of its confidentiality and nondisparagement provisions which it subsequently violated. In the agreement, the plaintiff released the church “from any and all claims … which [the plaintiff] now has or may have … whether now known or unknown.” The agreement further provided that the release “extended to all claims of every nature and kind, known or unknown, arising from, attributable to, or related to any of the claims released” and agreed to

waive and assume the risk of any and all claims for damages which existed as of the date of the release, but of which she did not know or expect to exist, whether through ignorance, oversight, error, negligence, or otherwise, and which, if known, would materially affect her decision to enter into the release.

The church argued that the plaintiff released her fraudulent inducement claim because it would have existed at the time she signed the agreement.

The court noted that “a release that clearly expresses the parties’ intent to waive fraudulent inducement claims … can preclude a claim of fraudulent inducement, depending on the circumstances.” But it concluded that the plaintiff had not clearly expressed such an intent:

The plaintiff released all claims that existed at the time she signed the Agreement. However, reading the Agreement as a whole, there is no express waiver of any fraudulent inducement claims or any indication that she disclaimed reliance on any of the church’s representations about the matters in dispute in this case. Thus, the Agreement does not reflect a clear and unequivocal intent to disclaim reliance on representations or to waive fraudulent-inducement claims … . We conclude that the church has not established as a matter of law that the plaintiff released her fraudulent inducement claim by agreeing to release her claims existing at the time she signed the Agreement.

What This Means For Churches:

This case is relevant to church leaders for the following reasons:

1. The “ecclesiastical abstention” doctrine does not preclude civil courts from resolving all internal church disputes. While the courts may not exercise jurisdiction “over matters concerning theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them,” they can resolve “civil law controversies in which church officials happen to be involved.”

2. The “ministerial exception” generally bars the civil courts from resolving employment disputes between churches and clergy. However, the court noted an important procedural limitation: the exception operates as “an affirmative defense, not a jurisdictional bar.” This means that the exception must be raised as an affirmative defense in a church’s response to a lawsuit, and not in a motion to dismiss a case based on a civil court’s lack of jurisdiction to adjudicate a claim.

3. Perhaps most importantly, the court concluded that a provision in the plaintiff’s employment application with the seminary authorizing the seminary and all prior employers to “provide full details concerning her past employment” did not amount to a waiver of the confidentiality and nondisparagement provisions in the severance agreement.

Churches often use severance agreements when a decision is made to terminate an employee, and such agreements may contain a confidentiality or nondisparagement clause. This case demonstrates that such provisions may take priority over a “release” that is later signed by a terminated employee that releases former employers from liability for anything they share about the employee. As a result, church leaders should not provide a reference on a former employee, even if the employee signed a release that releases former employers from liability for what they share in a reference, if a severance agreement was executed by the church and the employee that contains a nondisparagement clause.

4. It is also worth noting that the court concluded that the plaintiff’s fraudulent inducement claim against the church had not been waived by the general language in the severance agreement waiving all claims against the church since it had not been specifically identified as a claim that was being waived. As noted in a Feature Article in the September/October 2016 issue of Church Law & Tax Report, releases must explicitly reference claims that are being released in order to be legally valid. Presbyterian Church, 476 S.W.3d 612 (Tex. App. 2015).

Legal Developments

California Court Rejects Religious School’s Motion to Dismiss Disability Discrimination Claim

Church Law and Tax Report California Court Rejects Religious School’s Motion to Dismiss Disability Discrimination

State: California
Categories: Employment Practices

Church Law and Tax Report

California Court Rejects Religious School’s Motion to Dismiss Disability Discrimination Claim

Key point 8-14.1. The federal Americans with Disabilities Act prohibits employers with at least 15 employees, and that are engaged in interstate commerce, from discriminating in any employment decision against a qualified individual with a disability who is able, with or without reasonable accommodation from the employer, to perform the essential functions of the job. Accommodations that impose an undue hardship upon an employer are not required. Religious organizations may give preference to nondisabled members of their faith over disabled persons who are members of a different faith.

A federal district court in California rejected a church-affiliated school’s motion to dismiss a former employee’s disability discrimination claim. A 67-year-old teacher (the “plaintiff”) at a church-operated school sustained serious injuries as a result of a fall in a stairwell at her school causing her to strike her head. As a result of the fall, the plaintiff suffered from “vision problems, including symptoms of dizziness, instability, loss of balance, and double vision and migraine headaches.” Due to her injuries the plaintiff has fallen on several occasions and is no longer able to drive at night.

After the fall, the plaintiff requested, and received, a one-week leave of absence. During this leave, the plaintiff claimed that she received electronic communications from the school principal “pressuring her to return to work.” Over the next several months, the principal inquired about the plaintiff’s health and was told she continued to suffer from double vision, dizziness, and migraines.

The principal thereafter informed the plaintiff that various categories of work performance and work behavior were “areas for growth” and that her contract was not being renewed.

The plaintiff sued the school, claiming that her termination amounted to unlawful discrimination in violation of the Americans with Disabilities Act; and, the school’s failure to renew her teaching contract amounted to “wrongful termination.”

ADA

As evidence of disability discrimination, the plaintiff noted that the school:

Failed to determine the extent of her disability and how it could be accommodated;
Failed to take any affirmative steps to inform plaintiff of any job opportunities at the school;
Failed to consider the plaintiff for and move her into openings for which she was qualified and could handle;
Failed to engage in a timely, good faith, interactive process with the plaintiff to determine effective reasonable accommodations;
Discriminated against her based on her taking or requesting leave to which she was entitled by law or under school policy;
Discriminated against her on the basis of her age;
Failed to renew her teaching contract;
Discriminated against her by terminating her employment based on the “false and pretextual reason” that she had performance problems;
Replaced her with, and treated more favorably, a less experienced, less senior, younger and nondisabled individual; and
Failed to rehire her.

The court noted that “the elements of a disability discrimination claim under the Americans with Disabilities Act (ADA) are (1) the claimant has a disability, (2) the claimant is qualified to perform the essential functions of the job, (3) the claimant has suffered adverse employment action because of the disability.

The court concluded the plaintiff’s lawsuit satisfied “all elements” of an ADA claim:

She alleges that her disability resulted from a fall and injury to her head that led to on-going concussions, vision problems, dizziness, instability, and the loss of balance. These conditions allegedly and substantially limited her ability to work, walk, and see … .

She also adequately alleges that she was qualified to perform her job and that she suffered an adverse employment decision because of her disability. She alleges that the school was openly hostile to Plaintiff, subjecting her to unfair and excessive monitoring of her teaching performance. Further, Plaintiff alleges that she suffered disability harassment because, in part, she was subjected to an “annual” performance review that had not been conducted for several years. Such allegations, plaintiff argues, establish that she was disabled or “regarded” as disabled.

As a result the court rejected the school’s motion to dismiss the plaintiff’s ADA claim.

Wrongful termination

The plaintiff also alleged that the school’s failure to renew her annual teaching contract amounted to wrongful termination. The school argued that any cause of action for wrongful termination fails because in Daly v. Exxon Corp., 63 Cal.Rptr.2d 727 (1997), the court held that a claim for wrongful termination in violation of public policy cannot be based upon the nonrenewal of an employment contract. In Daly, the parties entered into an employment contract for a period of one year. The contract was renewed for two additional one-year extensions. During the third year, the employee complained to the employer about unsafe working conditions. Several months later the employer provided the plaintiff with written notice that his contract would not be renewed and in fact was not renewed.

The plaintiff sued the employer for wrongful termination. The trial court dismissed the lawsuit, and a state appeals court agreed that the wrongful termination claim based on nonrenewal of the employment contract had to be dismissed, concluding that “a decision not to renew a contract set to expire is not actionable in tort.”

The plaintiff in the California case asked the court to reject the Daly decision, since according to that case “an employer could discriminate on the basis of a prohibited reason (i.e., race, religion, disability, etc.) and there would be no basis for a wrongful termination cause of action.” But the court disagreed: “This argument is not persuasive. While a common law tort for wrongful nonrenewal of an employment contract does not exist, the injured hypothetical party has viable statutory remedies (i.e. the ADA, Title VII, or various other state or federal statutory schemes). Consequently, Plaintiff cannot state a claim for tortious nonrenewal of the employment contract.”

What This Means For Churches:

This case is important because of its analysis of a disability discrimination claim, and because of the court’s rejection of any cause of action for “wrongful termination” based on an employer’s decision not to renew employment contracts of stated terms. Baker v. Roman Catholic Diocese, 2015 WL 1344958 (S.D. Cal. 2015).

Legal Developments

Refusal to Hire Worker Without Social Security Number Does Not Constitute Religious Discrimination in Federal Case

Church Law and Tax Report Refusal to Hire Worker without Social Security Number Does Not

State: Federal
Categories: Employment Practices

Church Law and Tax Report

Refusal to Hire Worker without Social Security Number Does Not Constitute Religious Discrimination in Federal Case

A federal appeals court ruled that an employer had not engaged in unlawful religious discrimination by rejecting an applicant for employment on the basis of his refusal, on religious grounds, to have a Social Security number. The applicant (the “plaintiff”) sued the employer in a federal district court in Ohio seeking monetary damages and a court order compelling the employer to hire him. The court dismissed the lawsuit, and the plaintiff appealed.

A federal appeals court affirmed the district court’s dismissal of the plaintiff’s lawsuit. The court applied a two-step analysis in evaluating the legitimacy of the plaintiff’s religious discrimination claim:

First, we determine whether [the plaintiff] has established a “prima facie case of religious discrimination,” which requires proof that “(1) he holds a sincere religious belief that conflicts with an employment requirement, (2) he has informed the employer about the conflicts, and (3) he was discharged or disciplined for failing to comply with the conflicting employment requirement.”

Second, if [the plaintiff] establishes his prima facie case, his employer has the burden to show that it could not “reasonably accommodate” his religious beliefs without “undue hardship.”

The court noted that every federal appeals court to consider the issue has applied one of the above two steps to hold that an employer need not attempt to reasonably accommodate an employee’s religious beliefs if such accommodation would violate a federal statute. The court concluded: “The Internal Revenue Code requires employers … to collect and provide the Social Security numbers of their employees. See 26 U.S.C. § 6109(a)(3). In this case, the district court [held] that the plaintiff’s prima facie claim fails under step one because the employer’s collection of his Social Security number is a ‘requirement imposed by law. … ‘ We therefore affirm the district court’s conclusion.”

What This Means For Churches:

Some churches have been confronted by applicants for employment who have never obtained a Social Security number, often on religious grounds. This case demonstrates that a church’s refusal to hire such persons may not constitute religious discrimination under federal law. The fact that this ruling was by a federal appeals court, which noted that its conclusion was in accord with rulings by every other federal appeals court to consider the issue, adds considerable force to the court’s opinion. Nevertheless, since not every federal appeals court has weighed in on this issue, it would be prudent for church leaders to seek legal counsel before refusing to hire persons who refuse to obtain a Social Security number. Yeager v. FirstEnergy Generation Corporation, 777 F.3d 362 (6th Cir. 2015).

Legal Developments

Court Awards School Teacher Damages in Suit against Diocese for Disparity in Female and Male Employee Treatment

Church Law and Tax Report Court Awards School Teacher Damages in Suit against Diocese for

State: Indiana
Categories: Employment Practices

Church Law and Tax Report

Court Awards School Teacher Damages in Suit against Diocese for Disparity in Female and Male Employee Treatment

Key point 8-12.1. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. Religious organizations are exempt from the ban on religious discrimination, but not from the other prohibited forms of discrimination.

Key point 8-12.4. Title VII of the Civil Rights Act of 1964 prohibits employers engaged in commerce and having at least 15 employees from discriminating in any employment decision on the basis of race, color, national origin, gender, or religion. The Act permits religious organizations to discriminate in employment decisions on the basis of religion. This exemption permits such organizations to discriminate on the basis of moral or scriptural standards so long as they do consistently and not in a way that adversely impacts employees who are members of a group that is protected under an applicable state or federal discrimination law.

A federal district court in Indiana ruled that a Catholic Diocese had committed unlawful sex discrimination by dismissing a female employee for pursuing in vitro fertilization contrary to church teachings. A woman (the “plaintiff”) was employed as a teacher at a Catholic parochial school. She and her husband had struggled to have a second child. Her doctor believed in vitro fertilization offered their best (and perhaps only) chance. The plaintiff underwent two rounds of in vitro treatment and notified the school principal before beginning each round. The first time, the principal expressed support and prayers. The Diocese renewed the plaintiff’s year-to-year teaching contract after that. The principal learned of the second round of treatment when the plaintiff notified the school’s attendance officer that she would be taking sick days to undergo the treatment.

At some point the principal acquired a better understanding of church teachings, and realized that the plaintiff was announcing an intention to do something the church viewed as gravely immoral. The tenets of the Roman Catholic Church consider in vitro fertilization to violate the Fifth Commandment (“Thou shalt not kill”) because the procedure involves (or can involve) the freezing and discarding of embryos.

The plaintiff’s teaching contract had what the church calls a “morals clause” that requires employees to comport themselves according to the teachings of the church. The principal informed the Diocese about the plaintiff’s plans for in vitro fertilization. The bishop summoned the plaintiff to meet with him and told her in vitro fertilization was a sin. This was news to the plaintiff, who didn’t think the bishop fully understood the process she was undergoing. She tried to explain to him that no embryos were being destroyed; he said he would have to research further because he understood that embryos always were destroyed. The plaintiff was so close to a part of the procedure that she thought it was medically impossible to stop, so she didn’t agree to stop the process.

After conferring with other clergy in the Diocese, the bishop directed the principal to notify the plaintiff that her teaching contract wouldn’t be renewed for the following school year.

The plaintiff sued the Diocese, claiming that its decision not to renew her contract as a result of her violation of the “morals clause” in her contract amounted to sex discrimination in violation of Title VII of the Civil Rights Act of 1964. In support of her discrimination claim the plaintiff introduced evidence that a former male teacher at the school had gone to a strip club with other men to celebrate his birthday, and that when his conduct came to the attention of school officials, he was sent to meet with the bishop. But the bishop didn’t show up; he instead sent a priest. The discussion in the meeting about the wrongfulness of his conduct quickly shifted to a discussion of the upcoming Cubs’ baseball season. The teacher was not disciplined, no one ever reviewed the “morals clause” with him or asked whether he had complied with it before his contract was renewed, and he didn’t promise not to do it again. The Diocese argued that the male teacher’s misconduct in attending a strip club was too dissimilar to the plaintiff’s behavior to have any relevance.

The court pointed to another example of unequal treatment between male and female employees. Namely, that “in vitro fertilization treatment is harder for a female teacher to keep quiet than it would be for a male. The female teacher can’t teach at school when her body is needed for the treatment, so she needs to miss work,” meaning that it is entirely possible for male teachers to retain their jobs despite the “morals clause,” while this would be difficult if not impossible for female teachers.

Because of these examples of different treatment for violations of the “morals clause” based on one’s gender, the court concluded that the Diocese refused to renew the plaintiff’s contract as an elementary school teacher because of her sex, and awarded her $1.95 million in compensatory damages and $1 in punitive damages. The court reduced these awards to a total of $545,000

What This Means For Churches:

This case demonstrates that the dismissal of an employee for violating a church’s moral teachings may expose a church to liability. There are steps that a church can take to mitigate this risk. Before dismissing an employee for violating the church’s moral teachings, church leaders should ask the following questions:

(1) Is there sufficient evidence to support our decision?

(2) Did we inform the employee, in an employee handbook or other document, that he or she would be subject to dismissal for engaging in behavior in violation of our moral teachings?

(3) How will we describe the basis for our decision? The best description will refer to the church’s doctrinal tenets and scriptural citations. Stay away from words such as “pregnancy” that can have a “secular” meaning and that diminish the “religious exemption” available to churches under most federal and state civil rights and employment laws.

(4) How have we treated other employees in the past who were guilty of the same kind of misconduct? Have we treated all employees equally? Or, have we treated some employees less favorably than others? For example, have we dismissed female employees who were guilty of extramarital sexual relations, but only warned or reprimanded male employees guilty of the same behavior? Before dismissing an employee for misconduct, church leaders should review all other known cases involving similar misconduct by other employees. Be sure that an employee who is protected against discrimination by state or federal law is not being treated less favorably than other employees in previous cases.

(5) Have we consulted with an attorney before taking final action? Herx v. Diocese, 2015 WL 1013783 (N.D. Ind. 2015).

Church autonomy doctrine barred the claim from civil court

What this means for churches

An open worship pastor position

Church claims ministerial exception

What this means for churches

‘Morals Clause’

‘Teaching Ministry Contract’

‘Expected to carry out the school’s religious mission’

What this Title VII case means for church schools and church school leaders

Background

The plaintiff: archdiocese interfered with his contractual and employment relationship

What this means for churches

Background­­­

The plaintiff sues over sex discrimination

The defendants: “Church autonomy doctrine” prevents interference

What this means for churches

1. Religious organizations may discriminate based upon religion under Title VII—but not beyond

2. Most churches are subject to Title VII or a similar state statute

3. Religious ban applies to both religious and “secular” positions

4. The court said this case’s facts specifically favored the plaintiff

5. Guidance for applying the ministerial exception

Background

Disagreement over which set of bylaws apply

What this means for churches

The General Rule of Nonintervention

The plaintiff’s termination

Background: Understanding the plaintiff’s employment and her roles

The plaintiff’s employment

Role as guidance counselor

Role as Co-Director of Guidance

Applying the ministerial exception

What this means for churches

Go Deeper with Ministerial Exception and More

Background

Fired teacher claims unlawful pregnancy discrimination

What this means for churches

Background

The church asked the court to dismiss the suit

The court addressed the “church autonomy doctrine”

What this means for churches

Background and teaching requirements

Lawsuit focused on the “non-exempt” classification

Were these preschool teachers ministers?

What this means for churches

What this means for churches

What this means for churches

What this means for churches

What this means for churches

What this means for churches

What this means for churches

Court May Rule on ‘Secular Contract’ Between Church and Former Employee

What This Means For Churches:

California Court Rejects Religious School’s Motion to Dismiss Disability Discrimination Claim

What This Means For Churches:

Refusal to Hire Worker without Social Security Number Does Not Constitute Religious Discrimination in Federal Case

What This Means For Churches:

Court Awards School Teacher Damages in Suit against Diocese for Disparity in Female and Male Employee Treatment

What This Means For Churches:

Background