Key Point 8-10.02. Some courts have not recognized the ministerial exception, usually because the complainant was not a minister in either status or function, or was employed by a secular organization. Most of these cases were decided prior to the Supreme Court's ruling in the Hosanna-Tabor case in 2012, and as a result are of dubious value.
A few courts have not applied the ministerial exception, usually because the employee in question was not a "minister."
A federal appeals court ruled that in some cases ministers can pursue sexual harassment claims against an employing church without violating the First Amendment. A woman served as associate pastor of a church for one year. Shortly after assuming this position, she claimed that the church's senior pastor began sexually harassing her and creating a "hostile work environment." Pastor Ruth made a formal complaint of sexual harassment to the church, which she claimed took no action to stop the harassment or alleviate the hostile working environment. She also claimed that the senior pastor retaliated against her by relieving her of certain duties, verbally abusing her and otherwise engaging in intimidating behavior. Again, the church, which knew or should have known of the senior pastor's behavior, failed to act. The court noted that to the extent the plaintiff's claims involved "an inquiry into the church's decision to terminate her ministry, those claims cannot proceed in civil court and were properly dismissed." However, the court concluded that she could, consistent with the First Amendment, "attempt to show that she was sexually harassed and that this harassment created a hostile work environment" since this would involve "a purely secular inquiry." The court concluded: "[There is] no First Amendment basis for shielding the church from its obligation to protect its employees from harassment when extending such protection would not contravene the church's doctrinal prerogatives or trench upon its protected ministerial decisions." Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004). See also Braun v. St. Pius X Parish, 2011 WL 5086362 (N.D. Okla.2011).
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