Employee Relations

Church Law and Tax 1989-07-01 Recent Developments Employee Relations Richard R. Hammar, J.D., LL.M., CPA

Church Law and Tax 1989-07-01 Recent Developments

Employee Relations

Can an organist dismissed by his employing church sue the church for discrimination? No, concluded a Michigan state appeals court. The organist, a 61-year-old white male, had been employed by a Catholic church for several years as organist. When hired in 1968 by his last parish, he allegedly was informed by the priest that he would have “life-time employment” as long as he did his job properly. The organist also served as the church’s music director, and was responsible for selecting congregational and choral music, directing the parish choir, and providing music for weddings and funerals. The church hired a new pastor in 1980, who was very critical of the organist. The new pastor was critical of the organist’s abilities (“less than mediocre”), his playing style, his choir leadership, and failure to effectively lead the congregation during worship services. In 1981, the pastor informed the organist that his contract would not be renewed. The organist testified that the pastor told him that he was too old, and that the parish was becoming black and that it “was time for a black organist.” Congregational opposition forced the pastor to renew the employment contract for an additional year, but at a reduced salary and with reduced responsibilities. When this contract expired, it was not renewed and the church employed a black male to serve as its organist and music director. The organist sued the church, alleging that its activities violated state and federal civil rights laws banning discrimination in employment. A trial court granted summary judgment in favor of the church, and the organist appealed. The state appeals court affirmed the trial court’s ruling in favor of the church. The court relied primarily upon a 1972 federal appeals court decision that concluded that the constitutional guaranty of religious freedom prohibits civil court review of decisions by religious bodies concerning discipline or employment of ministers, and accordingly that the courts are without authority to resolve complaints by clergy alleging discrimination in employment. The court also referred to a 1985 federal appeals court decision that concluded that the “ministerial exception” to discrimination laws “does not depend upon ordination, but upon the function of the position.” The federal court observed: “As 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.'” The Michigan court concluded that the organist was “more than just an organist. He was the head of the musical branch of the Catholic liturgy [at his church and] was intimately involved in the propagation of Catholic doctrine and the observance and conduct of Catholic liturgy by the congregation. On the basis of ‘the function of his position’ [he] was, thus, ‘clergy’ … [and his] discrimination claim is therefore barred” by the constitutional guaranty of religious freedom. The court rejected the organist’s claim that he was merely “a secular employee who supported [the church’s] religious activities but did not engage in the propagation of religious doctrine or faith.” The court did acknowledge, however, that in cases involving “church employees who are not involved in the propagation of religious faith or religious doctrine, courts have held that [discrimination] actions against religious employers are not barred by the free exercise clause notwithstanding the employers’ arguments that their employment decisions were founded on religious beliefs.” It cited cases involving a lay teacher at a church-operated school, an editorial secretary for a religious publisher, a professor of psychology at a church-operated college, and administrative staff at a seminary. In summary, attempts by clergy (a term that is interpreted broadly and does “not depend upon ordination”) to sue churches or religious employers for discrimination will almost invariably fail. But, non-clergy employees of churches and religious organizations are not necessarily barred from suing their employers for discrimination. Assemany v. Archdiocese of Detroit, 434 N.W.2d 233 (Mich. App. 1988).

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