Recent Developments in North Dakota Regarding Employment Practices

The North Dakota Supreme Court ruled that an employer may have violated a minister’s legal rights by dismissing him for engaging in private sexual behavior in a public restroom.

Church Law and Tax1998-09-01

Employment Practices

Key point. Some states have enacted laws prohibiting employers from dismissing employees for engaging in lawful behavior during nonworking hours. These laws often do not apply to churches, but they may apply to other religious organizations and they do not necessarily exempt clergy who work for secular organizations.

• The North Dakota Supreme Court ruled that an employer may have violated a minister’s legal rights by dismissing him for engaging in private sexual behavior in a public restroom. An employee of a Sears department store visited a public restroom in the store. While seated in an enclosed stall, the employee inadvertently glanced through a small hole in the wall and noticed a man engaged in private sexual behavior (masturbation) in the adjoining stall. The employee left the restroom and called the police. The police informed the employee that state law prohibited such conduct in a “public place.” Police officers drove to the store, entered the restroom, and arrested the man. It turned out that he was an ordained minister who served as chaplain at a local retirement home. The retirement home placed the chaplain on a leave of absence and expressed concern about the effect the incident would have on his pastoral relationship with its residents. Concern also was expressed about the chaplain’s work performance and his commitment to his duties as chaplain. A few weeks later, following further evaluation, the chaplain was dismissed. He later sued the retirement home for (1) wrongful dismissal, (2) a violation of the state Human Rights Act, and (3) a violation of a state law barring employers from discriminating against employees for engaging in lawful behavior during nonworking hours. A trial court dismissed all of the charges, and the chaplain appealed.

Wrongful dismissal

The state supreme court agreed with the dismissal of the wrongful dismissal claim. It noted that “employment without a definite term is presumed to be at—will, and an employer may terminate an at—will employee with or without cause.” It acknowledged that the at—will rule can be modified by contract. However, it pointed out that the retirement home’s employee handbook explicitly stated it was not to be construed as an employment contract. Further, the court rejected the chaplain’s claim that the “letter of call” he received from his denomination created a contractual obligation between him and the retirement home that “rebutted” the presumption of his at—will employment status. The court disagreed:

The “letter of call” informed [the chaplain] about his employment at [the retirement home] and said “[t]he [denomination] reserves the right to terminate your employment with reasonable notice should a change in program or other justifiable reasons require it.” We reject [the chaplain’s] argument the “letter of call” created a contractual relationship between him and [the retirement home]. The “letter of call” refers to [his] status as member of the ministry of [his denomination] and not to his employment status at [the retirement home]. The “letter of call” was not issued, or signed, by [the retirement home], and it refers to [the retirement home] as the third party who had hired [the chaplain]. We agree with the trial court’s conclusion the “letter of call” was simply a calling to be a chaplain and did not rebut the presumption of [his] at—will employment. We hold the trial court did not err in dismissing [his] breach of contract claim ….

State human rights law

A state human rights law barred employers from dismissing employees on the basis of “sex.” The court concluded that this provision was not violated by the retirement home when it dismissed the chaplain, since “sex discrimination” requires a showing of membership in a protected class and adverse treatment by an employer because of the protected status.” The chaplain did not meet these requirements.

Lawful activities during nonworking hours

A state law prohibits an employer from discharging an employee “for participation in lawful activity off the employer’s premises during nonworking hours which is not in direct conflict with the essential business—related interests of the employer.” Further, employers can dismiss employees who engage in lawful behavior during nonworking hours if “contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee ….” This law was enacted to prevent employers from “inquiring into an employee’s non—work conduct, including an employee’s weight and smoking, marital, or sexual habits.”

The chaplain acknowledged that state law prohibits masturbation in a public place, but he insisted that a private stall in a public restroom is not a “public place” and therefore his behavior was legal. And, since it was legal, he could not be dismissed for engaging in such behavior. The trial court had rejected this argument, but the supreme court was not prepared to do so. It observed that the courts “generally have said activities conducted in an enclosed stall in a public restroom do not occur in a public place.” On the other hand, it acknowledged that state law allows employers to dismiss an employee for engaging in lawful behavior during nonworking hours if (1) the behavior is in direct conflict with the essential business—related interests of the employer, or (2) is contrary to a bona fide occupational qualification that reasonably and rationally relates to employment activities and the responsibilities of a particular employee. The court conceded that the retirement home might be able to establish either or both of these exceptions. In summary, the chaplain raised a legitimate claim that should not have been dismissed by the trial court. The case was sent back to the trial court on this one issue.

Application. This case illustrates a very important point-many states have enacted laws preventing employers from dismissing employees on account of lawful behavior during nonworking hours. These laws vary from state to state. Church leaders should review their own state law and be able to answer the following questions: (1) Does our state have such a law? (2) Does it apply to churches? In many states, such laws exempt churches. Note, however, that this did not help the retirement home in this case, since it was not a church. In other words, the fact that the chaplain was an ordained minister did not exempt the retirement home from the provisions of the law. (3) If our church is covered, which employees are protected? All employees? Only lay employees? What about clergy? (4) If our church is covered, what activities are prohibited? This is critical. You need to know how your church can violate the law. (5) What exceptions exist? The North Dakota statute had two exceptions. Your state law probably contains exceptions too. Church leaders need to be familiar with them. Hougum v. Valley Memorial Homes, 574 N.W.2d 812 (N.D. 1998).

[Termination, Termination of Employees]

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