Sexual Misconduct by Clergy, Lay Employees, and Volunteers – Part 2

A federal court in Kansas ruled that the so-called “ministerial exception” does not insulate churches from having to respond to interrogatories and depositions during the “discovery” phase of a lawsuit.

Church Law and Tax2005-03-01

Sexual misconduct by clergy, lay employees, and volunteers – Part 2

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 federal court in Kansas ruled that the so-called “ministerial exception,” which generally bars the civil courts from resolving employment disputes involving church employees, does not insulate churches from having to respond to interrogatories and depositions during the “discovery” phase of a lawsuit. A female pastor (the “plaintiff”) sued her former employing church for sexual harassment and retaliation on account of her gender in violation of Title VII of the Civil Rights Act of 1964. She also sued her former church for various state law claims including intentional failure to supervise, emotional distress, outrage, assault, and battery. The plaintiff claimed that she was subjected to a sexually-hostile work environment by the church’s former choir director and church elder, who allegedly repeatedly made offensive, inappropriate comments of a sexual nature, and engaged in other conduct of a sexual nature including kissing and touching plaintiff in an offensive manner. Plaintiff further alleged that the church failed to take prompt, effective, and remedial action and that the sexually hostile work environment continued throughout her employment until she resigned.

Shortly after filing her lawsuit, the plaintiff communicated her intent to take depositions of several church members who were involved with its internal investigation of her prior complaints of sexual harassment. She indicated that she wanted to find out how church leaders responded to her complaints. The church’s counsel instructed church employees not to answer questions, prompting the plaintiff to ask the court to issue an order compelling the church employees to respond to her questions. In its response to the motion to compel discovery, the church asserted that the “church autonomy doctrine” and “ministerial exception” exempted the church from liability for plaintiff’s claims, and therefore she should not be allowed to force church employees to participate in depositions and respond to questions.

In rejecting the church’s claim that the church autonomy doctrine barred the plaintiff from taking depositions of church staff, the court observed, “The deposition questions plaintiff seeks to compel [church employees] to answer do not involve any matters of faith, doctrine, church governance, and polity. Moreover, these questions do not appear to seek answers rooted in religious beliefs. [The church maintains] that neither sexual harassment nor sexual misconduct is encouraged by the church, and that neither is a basic tenet or part of the polity of the church.” Therefore, the church “failed to show that compelling [its staff] to answer the specific deposition questions at issue in this motion would pose any real danger to first amendment religious freedom … or in the evaluation of religious beliefs. The discovery sought does not appear to intrude upon the spiritual functions of [the church] nor does it require inquiry into intrinsically ecclesiastical concerns. Furthermore … the court finds no evidence that compelling [church staff] to answer these questions would chill the rights of church officials in the conduct of their religious affairs or would inhibit church parishioners from engaging freely in the practice of their religious beliefs and activities.”

The court acknowledged that several courts have recognized a “ministerial exception” to employment disputes involving churches and pastors. And, it conceded that this doctrine may well result in the eventual dismissal of the plaintiff’s lawsuit. However, it concluded that the doctrine did not exempt churches from pretrial “discovery” including the deposition of church officials and employees. The court concluded,

The issue of whether the ministerial exception applies to bar plaintiff’s [sexual harassment] claim in this case, as raised by the church in its response to plaintiff’s motion to compel discovery, would be more appropriately resolved by the court in a motion to dismiss or for summary judgment currently pending before the court. While [the church] argues its constitutional position with force and at considerable length, its argument is addressed more as a dispositive issue of the case rather than to the pending question of discovery. Without deciding the issue of whether the “ministerial exception” would bar plaintiff’s Title VII claim, this court must determine whether the church’s assertion of the “ministerial exception” creates a discovery privilege so that [church representatives] do not have to answer deposition questions relating to the investigation of plaintiff’s allegations of sexual harassment by a co-worker. The court holds that the church’s mere assertion of the “ministerial exception” as a bar to plaintiff’s Title VII claim does not create a per se discovery privilege as to protect [church employees and officials] from testifying about their knowledge of what investigation was conducted regarding plaintiff’s claims of sexual harassment.

The court emphasized that its ruling was “limited for purposes of discovery” and should not be construed as “a ruling on the potentially dispositive issue of whether the ministerial exception would bar plaintiff’s [sexual harassment] claims in this case. That issue will be taken up in the church’s motion to dismiss or for summary judgment.”

Application. This case demonstrates that the well-established “ministerial exception,” which prevents the civil courts from resolving discrimination claims brought by ministers against an employing church, does not necessarily insulate churches from having to respond to “discovery” requests (such as depositions and interrogatories) prior to trial. Other courts may not agree with the conclusion. After all, the force of the ministerial exception is greatly weakened if churches are required to expend considerable time and resources to participate in discovery requests in a lawsuit whose outcome is not in doubt. Dolquist v. Heartland Presbytery, 221 F.R.D. 564 (D. Kan. 2004)

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