Employment Practices – Part 1

A California court ruled that the ministerial exception to employment discrimination laws did not necessarily apply to a married couple who taught marriage counseling.

Church Law and Tax2005-07-01

Employment practices – Part 1

Key point 8-06. The civil courts have consistently ruled that the first amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.
The Civil Rights Act of 1964

* A California court ruled that the ministerial exception to employment discrimination laws did not necessarily apply to a married couple who taught marriage counseling at a church-affiliated university. A church-affiliated university associated with the Church of Christ accepted the Bible as its “ultimate constitution,” and required its professors to accept it “as the authoritative word of God.” The purpose of the university is to educate its students to “be equipped for a fruitful Christian service, and particularly for the Christian ministry.” The faculty handbook imposes on its professors the role of Christian mentor and example. As the handbook says, “What happens at a secretary’s desk, in an administrator’s office, in academic advising, around the table in the cafeteria … all contribute to the student’s education and growth,” and thus “it is imperative that our employees agree to abide by [our mission] in every activity that might have an effect upon any of our students.” As a result, faculty are to “conduct both on and off-campus activities and relationships in a manner that models a demonstration of a growing Christ-likeness.” Academic freedom is to be practiced only “within the context and constraints of the mission statement of the university.”

This religious orientation is reflected in the portion of the university’s employee handbook that pertains to firing. A section on “Separation of Service” states that any faculty member may be terminated “immediately in the case of grievous moral failure.” The handbook does not attempt to define “grievous moral failure” but cites Exodus 20:1-17 and Galatians 5:19 as examples of expected moral behavior. Exodus 20:1-17 is where the first listing of the Ten Commandments may be found in the Old Testament. Galatians 5:19 provides: “Now the works of the flesh are manifest, which are these: Adultery, fornication, uncleanness, lasciviousness.”

Among the university’s many full-time professors were Curtis and Lisa, both of whom taught in the Marriage and Family Therapy department. Both professors’ teaching contracts indicated that they were to be guided by the faculty handbook. Curtis had been married to his first wife for 27 years when he filed for divorce in 2000. At about the same time a rumor began circulating that he and Lisa were having an extramarital affair. Both denied the rumor.

The university later learned that Curtis and Lisa had been secretly engaged the same month that Curtis’s divorce was finalized, and it informed the couple that their teaching contracts were not going to be renewed. The basis for this decision was not entirely clear, however. In some communications with Curtis, university officials seemed to base their decision on the perception that Curtis had abandoned his wife and children and remarried a younger woman, which had damaged “the reputation of a university that is committed to the sanctity of marriage.” Other communications referred to the university’s “conflicts of interest” policy which generally barred married couples from working in the same department.

Curtis and Lisa sued the university, claiming that it had violated a state law barring discrimination in employment on the basis of one’s marital status. The University claimed that the so-called “ministerial exception” to employment discrimination laws required the case to be dismissed. A trial court refused to dismiss the case, and the University appealed.

A state appeals court defined the “ministerial exception” as a “nonstatutory, constitutionally compelled” exception to civil rights legislation. The idea is that the law “should not be construed to govern the relationship of a church and its ministers.” The court noted that this rule “applies to ministers and to a variety of nonordained employees with duties functionally equivalent to those of ministers” and whose duties “go to the heart of the church’s function in the manner of a minister or a seminary teacher.” If a court finds that an employee is a “minister,” then “the rule is about as absolute as a rule of law can be: The first amendment guarantees to a religious institution the right to decide matters affecting its ministers’ employment, free from the scrutiny and second-guessing of the civil courts.”

The court then applied the ministerial exception to faculty. It noted initially that “education presents conceptual difficulties since the line between teaching and preaching can be a fine one.” It concluded that the ministerial exception clearly applies in the following cases: (1) Teaching religion for a church, as opposed to a school. (2) Where “the role of the employee of an academic institution is inherently a religious one, like a campus chaplain. (3) Where the subject matter is the institution’s own religion, the exception applies, regardless of whether the teacher is ordained or a member of a religious order. (4) Where “a school itself is a seminary—that is, exclusively preoccupied with religion and the training of a religion’s own clergy as distinct from more general learning—the ministerial exception has been categorically applied to faculty, ordained or not.”

However, the court observed,

when neither the role of the employee nor the subject matter taught by that employee are necessarily religious, things become much less clear. Lay teachers of secular subjects at religious or parochial schools have been held not to come within the religious exception at both the high school level and especially elementary school levels … and teachers of clearly secular subjects have also been held not to be within the exception, even though incidentally the teacher may have been a member of a religious order. Just because your teacher is a Jesuit doesn’t mean that he is automatically covered by the exception when he is teaching first year contracts or negotiable instruments. Along those lines, purely secular work performed for a religious institution has been held not to come within the ministerial exception. We might describe this as the “janitor rule”—as in: there’s no question that the cleaning staff do not come within the ministerial exception (except maybe at a traditional monastery, where the cleaning staff are the members of the religious order and the cleaning is seen as very religious work indeed)—though of course it also extends to other sorts of work.

The court concluded that it could not “categorically” conclude that Curtis and Lisa were within the ministerial exception since “they are nonordained and they teach a subject (marriage and family counseling) that is not necessarily religious …. Psychology is not necessarily a religious subject. The world is full of psychologists who vehemently disagree about the role of religion in psychology.” Of course, the relationship between marriage and family counseling and the institution’s religious mission “was undeniable.” Sex and marriage “are major topics in religion. Whole churches have sprung out of marital controversies … so we cannot say categorically that they could not come within the exception, either. All we can say is that, in this proceeding [the University] did not establish that they are required to come within the exception.”

The court sent the case back to the trial court for further consideration of the application of the ministerial exception. If the evidence demonstrates that the ministerial exception applies, then the case must be dismissed. On the other hand, if ministerial exception does not apply, then the University may be found liable for “marital status” discrimination in violation of state law.

Application. This case is significant for the following reasons.

First, it illustrates the importance of accurately describing the basis for terminating an employee. There was some ambiguity in statements made by University officials concerning the basis for the couple’s dismissal. Some of those statements implied that the couple had been dismissed because of the University’s “anti-nepotism” policy that barred married couples from working in the same department. If this was the basis for their dismissal, then the University might have violated a state law prohibiting marital status discrimination. Churches need to be very clear in describing the basis for employee discipline or dismissal. If an employee is being dismissed for violating the church’s moral teachings, then this should be stated unequivocally as the basis for the action. Ambiguity in this regard may expose a church to discrimination claim.

Second, this case demonstrates that the ministerial exception is not limited to ordained clergy, but applies to other employees whose primary duties consist of teaching, spreading the faith, or participation in religious ritual and worship. This case also suggests that job descriptions should be reviewed to ensure that they adequately describe spiritual qualifications and duties. Doing so will reduce a church’s risk of expending substantial amounts of time and resources in defending against discrimination claims. Hope International University v. Superior Court, 14 Cal.Rptr.3d 643 (Cal. App. 2004).

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