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.

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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

Court Cannot Rule on Sexual Harassment Claims from Church Employees

Ohio case shows ministerial exception can block sexual harassment claims brought by ministers against their churches.

Richard R. Hammar, Attorney, CPA

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State: Ohio
Categories: Ministerial Exception, Sexual Harassment

Editor’s Note: On April 6, 2023, an Ohio appeals court affirmed the trial court’s decision to dismiss this case based on the ministerial exception doctrine. “We agree that this is precisely the kind of state inquiry into church employment decisions that the First Amendment forbids,” the appellate court noted in its 18-page decision.

It continued:

Our review of the record and case law convinces us that the trial court’s determination that the ministerial exception prevents application of a secular review and analysis of such claims in this case without engaging in “excessive entanglement” with the ecclesiastical inner workings of the church was supported by competent, credible evidence, and the trial court properly determined that the ministerial exception stripped it of jurisdiction to consider [plaintiffs’] claims that the church had violated state employment laws.

Montgomery v. St. John’s United Church of Christ, 2023 WL 2820472 (Ohio 2023)

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.

An Ohio court ruled that it was barred by the ministerial exception from resolving a pastor’s sexual harassment claim against her church.

A pair of plaintiffs sued a church and its board president

This case involved allegations of employment-related sexual harassment asserted against a church (“Church”) ’and its board president (“President”) by a female minister (“Minister”) and a pastoral assistant (“Assistant”).

The Minister was employed at the Church from November 2014 until July 2019.

The Assistant was employed from September 2017 until April 2019.

The plaintiffs alleged that they were subjected to sexual harassment by the President individually and in his church leadership capacity and that, as a result of the acts of harassment, a hostile work environment was created. Plaintiffs further alleged that, as a result of their objecting to and resisting these acts of sexual harassment, their employment was terminated.

The Minister also separately alleged that she was terminated as a result of age and sex discrimination because the Defendants wanted to hire a younger, male minister.

In support of her sexual harassment claim, the Minister recounted inappropriate language of a sexual nature by the President at a church conference in 2018, in three telephone calls, and a few conversations in the church parking lot.

However, she admitted the President never:

spoke to her in a sexual way about having sex with her,
sexually propositioned her or asked her to have a sexual relationship with him,
indicated that any kind of sexual activity was required to keep her job,
touched her in any unwanted manner,
asked her about her own sex life, and
threatened her in any way.

Further, there was no evidence that the Minister ever reported any sexually harassing behavior to anyone at the church.

The Assistant recounted similar claims of inappropriate sexual conversations with the President.

In connection with their discrimination claims, Plaintiffs sought a “permanent injunction prohibiting the defendants from engaging in any policy or practice which discriminates on the basis of sex and age.” Plaintiffs also asked the court to “order the defendants to make plaintiffs whole by rehiring them and restoring any seniority with appropriate back pay, front pay and benefits.”

Plaintiffs’ lawsuit also asserted a cause of action for assault and battery against the President individually, as well as a claim of defamation against both Defendants.

In their defamation claim, Plaintiffs alleged that Defendants knowingly published false statements about them and about the reasons for their termination of employment, reflecting poorly on their character and damaging their reputation in the community and impairing their ability to obtain employment.

Plaintiffs alleged these statements were made with malicious intent.

The Minister’s employment was terminated on July 9, 2019, by a written agreement entitled Agreement for Dissolution and Termination of a Pastoral Relationship. The agreement provided for two months of severance pay plus benefits, along with a release of claims by the Minister. That release language reads as follows:

“The minister, acknowledging receipt of financial payments under this agreement, covenants and agrees that he/she waives all rights to demand and/or secure a civil court and/or a jury trial with respect to adjudication of the matters contained in this Dissolution and Termination Agreement, in matters that pertain to her ministry in the church and/or the negotiations that have led up to this agreement.

It is understood that this Dissolution and Termination Agreement is a final disposition of all matters between the pastor and the congregation. This Dissolution and Termination Agreement contains the entire agreement between the parties hereto and any representations made before or during negotiation are hereby merged in their entirety and this Agreement may not be modified.

The undersigned parties have negotiated this Agreement in good faith and have every intention of being in fulfilling it and further agree to the releases contained herein, representing that they understand its contends [sic] and sign it as their own free act after a full review of the contents.”

The document was approved by the church board on July 8, 2019. It was signed on July 9, 2019, by the president and the church board’s vice president, by church executive committee members, by the church treasurer, and by the Minister.

Does the ministerial exception apply?

The Defendants argued that the Plaintiffs’ claims were barred by the ministerial exception. The court observed:

“The [ministerial exception] doctrine shields religious employers from employment discrimination lawsuits brought by their ministers. Rooted in the First Amendment’s Establishment and Free Exercise Clauses, the exception ensures that the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.

For the ministerial exception to apply, the employer must be a religious institution and the employee must have been a ministerial employee. It is undisputed that [the Church] is a religious institution and that [the Minister] is a ministerial employee. …

With regard to [the Minister] it is undisputed that she is an ordained minister. She had performed weddings and funerals and provided pastoral care prior to her employment [with the Church]. She became a member of the church in 2014 and began working as a “pastoral care assistant” in 2018. In that “pastoral” capacity, she ministered to the elderly and homebound members of [the Church], calling them, visiting them, praying with them, informing them about happenings at the church, and so forth.

If [the Minister] was unable to meet with parishioners, [the Assistant] would take on some of [the Minister’s] duties, meeting with parishioners in nursing homes and hospitals, providing pastoral care by phone or in person, giving “solace and comfort” and fulfilling the mission of the church through these pastoral and ministerial duties.

On at least one occasion [the Assistant] led a sermon before the congregation. [The Assistant] was also taking courses to become ordained through the [church’s denomination], and she was a member of the church governing body (the Church Board) where she was in charge of outreach and missions.

Based on the scope and nature of her work, it is clear that [the Assistant] performed primarily religious functions (as opposed to secular), and she regarded herself as being engaged in pastoral, ministerial work. Furthermore, she had received and was continuing to receive specialized religious training, she performed certain “key functions” as an assistant to [the Minister], and she served as an active and visible messenger of the church’s mission and outreach. Clearly, [the Assistant] satisfies numerous factors deemed pertinent by the [United States] Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012) and undoubtedly qualifies as a “ministerial employee” so as to trigger the application of the ministerial exception.”

As ministerial employees, both Plaintiffs’ claims of wrongful termination based on sex discrimination “are explicitly barred by the ministerial exception as mandated by the clear authority of the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012).”

Accordingly, the Ohio court entered summary judgments as a matter of law for both Defendants on the wrongful termination claim.

Court: Ministerial exception bars hostile work environment claims

The Plaintiffs also claimed that they were victims of the Defendants’ sexual harassment based on a hostile work environment.

Are such claims also barred by the ministerial exception? The court concluded that they were, too.

The court noted that “it is settled that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.” However, “where the claim is one involving discrimination based on a hostile work environment (without necessarily a wrongful termination), there is a split of authority as to whether the ministerial exception should still bar the claim.”

The court noted that the United States Supreme Court “has not directly ruled on this issue,” but it discussed the ways the Hosanna-Tabor decision could inform its ruling here:

In the Hosanna-Tabor case the Supreme Court ruled that the First Amendment bars suits “claiming termination in violation of employment discrimination laws,” the Court also ruled that the ministerial exception precludes application of employment discrimination laws to claims concerning the employment relationship between a religious institution and its ministers.

The phrase “and other employment discrimination laws” would appear to include the laws which form the basis of Plaintiffs’ claims herein. Moreover, it is clear that Plaintiffs’ claims herein “concern the employment relationship.”

Therefore, it is undisputed that Plaintiffs’ hostile work environment claims herein are claims brought pursuant to an “employment discrimination statute”.

Moreover, since Plaintiffs seek, in connection with their workplace discrimination claim, a permanent injunction prohibiting the [Defendants] from engaging in any policy or practice which discriminates on the basis of sex and age and also seek an order requiring Defendants to make plaintiffs whole by rehiring them and restoring any seniority with appropriate back pay, front pay and benefits it is abundantly clear that Plaintiffs’ hostile work environment claims are profoundly entangled with, and explicitly implicate, the employment relationship between Defendants and two of its “ministers”, and such claims are therefore barred by the ministerial exception.

In this case, the Plaintiffs did not allege a “quid pro quo” claim of sexual harassment, but a hostile work environment claim. In order to establish a claim of hostile work environment sexual harassment, a plaintiff must show:

(1) that the harassment was unwelcome, (2) that the harassment was based on sex, (3) that the harassing conduct was sufficiently severe or pervasive to affect the terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment, and (4) that either (a) the harassment was committed by a supervisor, or (b) the employer, through its agents or supervisory personnel, knew or should have known of the harassment and failed to take immediate and appropriate corrective action.

The Ohio court concluded that “the evidence that has been submitted to the Court … clearly establishes that the Court cannot evaluate or adjudicate the hostile work environment claims without excessively entangling itself in the religious workings of the church and the ecclesiastical domain.”

What about the release agreement?

Defendants also asserted that the Minister’s claim was barred as a matter of law by virtue of the Agreement for Dissolution that she signed. The court agreed. It noted that the Agreement

“ … is plainly supported by consideration in the form of two months of severance pay plus benefits, and it contains a release of claims against the Church. In the Agreement, [the Minister] “covenants and agrees that she waives all rights to demand and/or secure a civil court and/or a jury trial with respect to adjudication of the matters contained in this Dissolution and Termination of a Pastoral Relationship Agreement in matters that pertain to her ministry in the church. …”

The Agreement by its very title … evinces its purpose, which is to memorialize a termination of [the Minister]’s employment as [the Defendants]’ pastor. Therefore, the release language contained therein waiving civil court claims as to “the matters contained in this Dissolution and Termination Agreement, in matters that pertain to her ministry in the church” clearly refers to matters relating to her employment with the Church. No other interpretation can be credibly argued.”

The court noted that an executed release is “ordinarily an absolute bar to a later action on any claim encompassed within the release.” Therefore, the court concluded that the Agreement constituted a “clear and unambiguous contract between [the Minister] and the church, and that [the Minister] has released and waived any future claims with respect to matters pertaining to her employment and ministry there.”

[The Minister] attempted to avoid the Agreement on the ground that she had no opportunity to review it and was therefore reluctant to sign it. The court rejected this argument, citing the “parol evidence rule.” The parol evidence rule

is a rule of law that prohibits a party who has entered into a written contract “from contradicting the terms of the contract with evidence of alleged or actual agreements. … [When] two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence … of [prior] understandings … will not be admitted for the purpose of varying or contradicting the writing. … Therefore, in accordance with well-settled law, the Court will not consider such evidence.”

What this means for churches

This case is important for the following reasons:

1. It demonstrates that the ministerial exception may preclude sexual harassment claims by ministerial employees against their church.

2. It discusses the possible relevance of the parol evidence rule. Your church leaders likely are not familiar with this rule, but it does have potential relevance to any church that fails to include all material terms of a contract and the contract itself.

The important point to note is that the clear meaning of a contract cannot be altered by external evidence outside of the contract itself.

The takeaway point here is that church leaders should take steps to ensure that all material terms are in fact recited in contractual documents that are signed on behalf of the church. Oral understandings of the parties’ intent will not be allowed to alter the meaning of the terms and conditions reflected in a contract.

This rule often comes as a shock to one or both parties to a contract, but note that it can be avoided by a careful reading of any contract prior to signature to ensure the inclusion of all material terms.

3. This case demonstrates the importance of the legal concept of “consideration” in evaluating contracts and agreements. The court noted that the Agreement signed by the Minister and the church “was plainly supported by consideration in the form of two months of severance pay plus benefits.” Consideration, like the parol evidence rule, is a legal doctrine that is not well understood by church leaders. But it should be, since unfamiliarity with it can result in significant liability.

What is consideration, and why is it important?

Consideration is a fundamental requirement in any contract. For a contract to be legally enforceable, each party agrees to do something and must receive something of value in exchange. That “something of value” is called consideration. There is no enforceable contract without it.

Montgomery v. St. John’s United Church of Christ, 2022 Ohio Misc. LEXIS 32 (Ohio App. 2022)

Legal Developments

Priest Claimed Defamatory and False Statements Led to His Dismissal

But a court ruled the ministerial exemption barred it from resolving the priest’s claim.

Richard R. Hammar, Attorney, CPA

Bio

State: Pennsylvania
Categories: Clergy - Discipline and Removal, 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.

A Pennsylvania court ruled that it was barred by the “ministerial exception” from resolving a priest’s claim that members of his church “interfered with” his employment contract by sharing negative information about him with diocesan officials for the purpose of having him permanently removed.

Background

A Catholic priest was appointed by contract by his diocese to be the priest and administrator for a church in Scranton, Pennsylvania. Prior to this assignment, the priest alleged that a lay employee (“Defendant 1”) and two lay members of the church (“Defendant 2” and “Defendant 3”) exerted influence over the parish’s finances.

After assuming his duties as a priest and administrator for the church, the priest claimed that, while looking through a file cabinet, he found hundreds of dollars in cash that was hidden and unaccounted for. Since the cabinet was under the control of Defendant 1, he confronted her, but she did not have a sufficient explanation.

The priest claimed the defendants had previously demonstrated dismay at decisions he made due to their lack of ability to exert control they once had in the parish.

He further claimed that the defendants made defamatory and false statements to members of the parish with the intention of causing the separation of the priest from his contractual agreement with the Diocese of Scranton.

Specifically, he stated that Defendant 1 made untrue complaints to the local police department alleging harassment, which were discovered to be unfounded by the department. He said Defendant 1 also made similar remarks about harassment to church members as well as individuals in the diocese, all for the purpose of causing separation of the priest from his contract with the diocese.

Defendant 2 allegedly made defamatory and false statements, both orally and in writing, to the local bishop with the intention of removing the priest. It was also asserted that Defendant 2 forwarded emails to the priest’s superiors stating that the priest had made “outright lies to his congregation” and “spends the Diocese’s money like a drunken sailor.”

Defendant 2 reportedly forwarded an additional email to the diocese claiming that the priest “spent an exorbitant amount of money on light fixtures, that were never as expensive as claimed and never even purchased.”

The priest claimed that Defendant 3 made defamatory and false statements, both orally and in writing, to the bishop with the intention of removing the priest from the church.

Applying the “rule of deference”

The priest sued the three defendants, claiming they interfered with his contractual relationship with the diocese, which resulted in the decision of the bishop to terminate his employment with the diocese.

The defendants argued that the Establishment and Free Exercise Clauses of the First Amendment to the United States Constitution prohibit judicial interference with the employment decisions of religious institutions. A trial court agreed with the defendants and dismissed the lawsuit.

The priest appealed, claiming that the trial court erred in concluding that the constitution prohibited judicial interference with his lawsuit. The priest claimed that the defendants’ campaign of defamatory and false statements caused monetary damages through the termination of his contract and in “keeping him from obtaining other similar positions in the . . . Diocese.”

The appeals court concluded that American courts have developed a “rule of deference” to religious tribunals in matters of doctrine and faith:

[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them. Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952) (quoting Watson v. Jones, 80 U.S. 679 (1871)).

The appeals court noted that this “rule of deference” arose out of disputes over church property, but its application has expanded to other kinds of church disputes including those “involving the choice of church leadership.” The court elaborated this point by quoting a 1985 Supreme Court decision:

All disputes among members of a congregation, however, are not doctrinal disputes. Some are simply disputes as to the meaning of agreements on wills, trusts, contracts, and property ownership. These disputes are questions of civil law and are not predicated on any religious doctrine. While it is true that parties may agree to settle their disputes according to their own agreed fashion, the question of what they agreed to, or whether they agreed at all, are not doctrinal and can be solved without intruding into the sacred precincts.

The appeals court stated:

We must decide whether the same is true of [the priest’s] interference [with contract claim]—can we analyze the propriety of [the defendants’] communications without intruding into the sacred precincts?

Applying the ministerial exception

The appeals court then evaluated how the priest’s claims compared with a prior decision made by the Pennsylvania Supreme Court. In that specific case, the Pennsylvania Supreme Court noted:

[C]ases involving the choice of clerical leadership . . . is a special class of cases that involves the employment relationship between a religious institution and its ministerial employees in which the courts understandably are particularly reluctant to encroach on the institution’s decision-making process in selecting such employees. . . . This application of the deference rule has come to be known as the “ministerial exception” to a civil court’s ability to exercise jurisdiction over a matter related to the employment or retention of a cleric.

The appeals court then continued:

Under the “ministerial exception,” the Free Exercise Clause of the First Amendment of the United States Constitution prohibits courts from exercising . . . jurisdiction in cases where the court’s involvement would encroach on decisions made by religious institutions concerning employment of ministers. Rooted in the First Amendment’s guarantee of religious freedom, the ministerial exception precludes courts from considering claims involving the employment relationship between a religious institution and its ministerial employees, based on the institution’s constitutional right to be free from judicial interference in the selection of those employees.

The appeals court further noted:

The ministerial exception applies to persons whose “primary duties include teaching, spreading the faith, church governance, supervision of a religious order, or supervision of participation in religious ritual and worship.” . . . The question, then, is whether the [defendants’] statements are actionable regardless of [the priest’s] status as a minister.”

According to the priest:

[The defendants] were influential members of the parish community whose communications were made with the intention of prompting the bishop to terminate [the priest’s] employment and had the desired effect. He also notes that [the defendants] were not members of the church hierarchy, that their statements did not occur during a church meeting or in furtherance of an official church proceeding relating to [the priest’s] continued employment, and that the statements did not relate to [the priest’s] pastoral care. . . . “[T]he defamatory statements of lay persons against a priest are not religious controversies and, as such, should be dealt with through civil law.” . . . [The priest] claims [the defendants’] statements were made in retaliation to [the priest’s] discovery of possible malfeasance on [the defendants’] part; that he brought this action in response to [the defendants’] concerted campaign to discredit him; and that the association of [the parties] with the same religious organization is merely incidental to this lawsuit. . . . Thus, [the priest] argues that this case can and should be decided under neutral principles of law and that the trial court erred in dismissing his complaint pursuant to the ministerial exception.

The appeals court disagreed with the priest’s arguments.

It concluded that there was “no doubt” that the priest believed that the defendants’ communications to the bishop and various parishioners led to his “undeserved and unjust termination from his post as priest” of the church. The appellate court pointed to the United States Supreme Court’s unanimous 2012 ruling, in which the Court found the ministerial exception applies to cases involving the termination of a cleric—regardless of whether the termination was for a religious reason. Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 132 S.Ct. 694 (2012).

“Thus, the fact that [the defendants’] allegedly defamatory statements concern secular matters—[the priest’s] misuse of parish funds, dishonesty toward parishioners, and an alleged incident of harassment—does not avoid the applicability of the ministerial exception,” the appellate court said.

The appellate court concluded:

[The priest’s] complaint is very specific—he alleges that [the defendants] through their communications with the local bishop and others, sought and successfully procured [his] removal from ministry. Our holding is correspondingly narrow—[the priest’s] allegations are inextricably intertwined with his removal from ministry, and therefore the trial court properly [dismissed his lawsuit.]

What this means for churches

Consider the following points.

1. Liability for intentional interference

According to the legal principle of “interference with contract,” a former employer may be liable if it intentionally interferes with an existing employment relationship.

To illustrate, assume that Church A dismisses a lay employee (“Jill”) because of embezzlement, and Jill is later hired by Church B as its bookkeeper. The pastor of Church A discovers that Jill is now working for Church B and calls the pastor of Church B to warn him that Church B has hired an embezzler.

Case Study from Alaska Supreme Court
For a pertinent court case on interference with contract with implications for churches, church leaders, and church employees and former employees, see the case study on a ruling by the Alaska Supreme Court in the “Reference Letters” section of the Legal Library.

Based on this unsolicited communication, Jill is dismissed by Church B. She later sues Church A and its pastor for interference with contract. To prove interference with contract, Jill must demonstrate the existence of a contract (an employment relationship), and some intentional act by her former church or pastor that interfered with that contract. Consider the holding from the Alaska Supreme Court regarding interference with contract (see sidebar).

2. Interference requires malicious intent

Interference with contract requires malicious intent. The defendant must have willfully and intentionally engaged in conduct that interfered with another’s employment contract.

3. Interference during the preemployment stage

Some courts have extended the principle of interference with contract to the preemployment stage, referring to this as “interference with prospective contractual relations.”

This requires proof of the following elements: (1) a “reasonable probability” that the plaintiff would have entered into the prospective relationship or contract; (2) a wrongful act by the defendant that prevented the relationship from occurring; (3) the defendant did such act with a conscious desire to prevent the relationship from occurring, or knew that the interference was certain or substantially certain to occur as a result of the defendant’s conduct; and (4) the plaintiff suffered actual harm or damage as a result of the defendant’s interference.

4. The ministerial exception may bar rulings on interference-with-contract claims

Case Study from a Louisiana Court For an example of a case suggesting that the ministerial exemption may prevent a court from resolving an interference-with-contract claim, see the case study on a ruling by a Louisiana court in the “Reference Letters” section of the Legal Library.

Some courts, like the appellate court in this Legal Development, have ruled that the ministerial exception prevents them from resolving interference-with-contract claims involving clergy. Consider the outcome reached by a Louisiana court illustrating this point (see sidebar).

5. Seek legal counsel

Pastors should not interfere with a former employee’s employment relationship with another employer without first seeking legal counsel.

Tracy v. O’Bell, 268 A.3d 405 (Pa. 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

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

Court Refused to Extend the Clergy-Penitent Privilege to an Unordained, Self-Proclaimed Minister

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed

Richard R. Hammar, Attorney, CPA

Bio

State: Louisiana
Categories: Confidential and Privileged Communications, Counseling, Ministerial Exception

A Louisiana state appeals court refused to extend the clergy-penitent privilege to an unordained, self-proclaimed minister to whom a murder suspect made certain statements.

The minister characterized himself as a "self-ordained minister," which he defined as "a person who takes it upon himself to guide others in religious matters." He had taken a Bible study correspondence course from a college in California, and while in the armed services participated in a Bible study group in his church. Such a background, concluded the court, was not enough to justify application of the clergy-penitent privilege under Louisiana law, which provides that "no clergyman is permitted, without the consent of the person making the communication, to disclose any communication made to him in confidence by one seeking his spiritual advice or consolation, or any information that he may have gotten by reason of such communication."

The court observed that "simply because [the alleged minister] studied the Bible and took it upon himself to give religious guidance to others does not make him a clergyman." Further, the evidence did not demonstrate that he had been "approached for spiritual counseling." As a result, the communications made to the minister by the murder suspect were not privileged, and were properly admissible in court. State v. Hereford, 518 So.2d 515 (La. App. 1987)

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

A pair of plaintiffs sued a church and its board president

Does the ministerial exception apply?

Court: Ministerial exception bars hostile work environment claims

What about the release agreement?

What this means for churches

What is consideration, and why is it important?

Background

Applying the “rule of deference”

Applying the ministerial exception

What this means for churches

1. Liability for intentional interference

2. Interference requires malicious intent

3. Interference during the preemployment stage

4. The ministerial exception may bar rulings on interference-with-contract claims

5. Seek legal counsel

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

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