Court Barred by “Ministerial Exception” from Deciding a Gay Pastor’s Discrimination Lawsuit

Key Point 8-10.01. The civil courts have consistently ruled that the First Amendment prevents them from applying employment laws to the relationship between a church and a minister.

Key point 8-12.05. Sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. It consists of both “quid pro quo” harassment and “hostile environment” harassment. Religious organizations that are subject to Title VII are covered by this prohibition. An employer is automatically liable for supervisory employees’ acts of harassment, but a defense is available to claims of hostile environment harassment if the employer adopted a written harassment policy and an alleged victim fails to pursue remedies available under the policy. In some cases, an employer may be liable for acts of sexual harassment committed by nonsupervisory employees, and even nonemployees.

A gay minister’s yearslong effort to bring a hostile work environment claim against his former church was rebuffed once and for all after the US Court of Appeals for the Seventh Circuit affirmed the “ministerial exception” bars it.

The ministerial exception is a legal doctrine based upon the First Amendment’s religion clauses. In general, it prevents the civil courts from resolving employment disputes between churches and clergy. Various courts began to develop the doctrine through decisions over the years, leading to a landmark, unanimous decision in 2012 by the US Supreme Court recognizing its validity. Since the Court’s decision, however, courts have wrestled with how and when the ministerial exception applies—including a 2020 Supreme Court decision holding that the doctrine prohibits employment discrimination claims brought by ministers.

The gay minister’s (the “plaintiff’s”) case is another example of the recent challenges to define the doctrine, this time under a claim of minister-on-minister harassment. In 2019, a federal appellate court ruled the ministerial exception applied, barring courts from adjudicating the plaintiff’s case because doing so would lead to impermissible interference with religion.

Upon appeal in 2021, the Seventh Circuit affirmed the lower federal court’s decision, ending the plaintiff’s legal challenge.

Background

In September 2012, a Catholic church hired the plaintiff as its music director, choir director, and organist. The church’s pastor supervised the plaintiff in these roles. Over the next two years, their relationship deteriorated, culminating in the plaintiff’s termination. The plaintiff, a gay man, alleged that the pastor discriminated against him based largely on his sexual orientation and physical condition.

According to the plaintiff, the pastor repeatedly subjected him to derogatory comments and demeaning epithets, showing a discriminatory animus toward his sexual orientation. The frequency and hostility of these remarks increased after the pastor learned that the plaintiff planned to marry his male partner while still employed by the church.

After the plaintiff’s marriage in September 2014, the pastor asked for the plaintiff’s resignation and told him that his marriage was against the teachings of the Catholic Church. When the plaintiff refused to resign, the pastor fired him.

The plaintiff also suffers from diabetes, metabolic syndrome, and weight issues. Before his termination, the pastor allegedly made belittling and humiliating comments based on these conditions as well.

Appeals court: Resolving the plaintiff’s claim would “intrude upon the religious realm”

The plaintiff sued the church and the archdiocese for employment discrimination. In the plaintiff’s initial complaint, he claimed the church fired him based on his sex, sexual orientation, marital status, and disability. He alleged the church therefore violated Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, and analogous state laws. The church moved to dismiss the case on the basis of the ministerial exception.

A federal district court concluded that the plaintiff was a minister and that the exception applied, and accordingly dismissed the complaint in full. The plaintiff appealed.

The Seventh Circuit concluded that resolving the plaintiff’s hostile work environment claims would lead to

impermissible intrusion into, and excessive entanglement with, the religious sphere. . . . By probing the ministerial work environment, the state—acting through a court—interferes with the Free Exercise Clause, “which protects a religious group’s right to shape its own faith and mission.” . . . A religious organization shapes its faith and mission through its work environment just as much as “through its appointments.” . . . Allowing the state to regulate the ministerial work environment similarly runs afoul of the Establishment Clause, “which prohibits government involvement in such ecclesiastical decisions.” . . . How one minister interacts with another, and the employment environment that follows, is a religious, not judicial, prerogative. . . . In complement rather than conflict, the Free Exercise Clause and the Establishment Clause therefore preclude the plaintiff’s hostile work environment claims.

Consider first the litany of Free Exercise Clause problems with hostile work environment claims by ministers. “[Q]uestions of church discipline and the composition of the church hierarchy are at the core of ecclesiastical concern.” . . . So to adjudicate [the plaintiff’s] allegations, which center on his relationship with his fellow minister and supervisor . . . is to necessarily intrude upon the religious realm. Even at its least invasive, a hostile work environment claim threatens to fundamentally alter the ministerial relationship and work environment.

The court quoted from an earlier ruling by the Supreme Court: “Fear of potential liability might affect the way an organization carried out what it understood to be its religious mission.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327.

Similarly, the Seventh Circuit noted this quote from a 1985 decision made by the Fourth Circuit:

There is the danger that churches, wary of [the US Equal Employment Opportunity Commission (EEOC)] or judicial review of their decisions, might make them with an eye to avoiding litigation or bureaucratic entanglement rather than upon the basis of their own personal and doctrinal assessments of who would best serve the pastoral needs of their members. Rayburn v. General Conf. of Seventh-day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985).

The Seventh Circuit concluded the ministerial exception applied, amplifying its decision by including other notable quotes from previous Supreme Court precedents:

“Because a minister lies at the heart of a religious organization’s work and place, deciding whether discrimination pervaded his employment impermissibly requires “intrusion into a religious thicket.” . . . “The First Amendment outlaws such intrusion.”

What this means for churches

This case is important because it illustrates the potential liability a church faces if one or more employees create an intimidating, hostile, or offensive working environment through unwelcome verbal or physical conduct of a sexual nature. Note the following clarifications.

First, sexual harassment is a form of sex discrimination prohibited by Title VII of the Civil Rights Act of 1964. Title VII applies to any church with at least 15 employees (full-time or part-time) and is engaged in interstate commerce. The definition of “interstate commerce” is very broad, so a church with at least 15 employees should assume that it is subject to Title VII unless it receives an attorney’s opinion to the contrary.

Second, most states have enacted their own civil rights laws that bar sexual harassment in employment, and it is likely that these laws will apply to churches since there is no “commerce” requirement, and often, fewer than 15 employees are needed to be covered by the state’s law.

Third, a woman’s “consent” is not a defense to an allegation of sexual harassment. The Supreme Court has observed:

[T]he fact that sex-related conduct was ‘voluntary’ in the sense that the complainant was not forced to participate against her will, is not a defense to a sexual harassment suit brought under Title VII. . . . The gravamen of any sexual harassment claim is that the alleged sexual advances were ‘unwelcome’ . . . . The correct inquiry is whether [the victim] by her conduct indicated that the alleged sexual advances were unwelcome, not whether her actual participation in sexual intercourse was voluntary.

In other words, a female employee may engage in voluntary sexual contact with a supervisor because of her belief that her job (or advancement) depends on it. While such contact would be voluntary, it is not necessarily welcome. Sexual harassment addresses unwelcome sexual contact, whether or not that contact is voluntary.

Fourth, EEOC guidelines contain the following language:

Prevention is the best tool for the elimination of sexual harassment. An employer should take all steps necessary to prevent sexual harassment from occurring, such as affirmatively raising the subject, expressing strong disapproval, developing appropriate sanctions, informing employees of their right to raise and how to raise the issue of harassment under Title VII, and developing methods to sensitize all concerned.

Fifth, church insurance policies generally do not cover employment-related claims, including sexual harassment. If your church is sued for sexual harassment, you probably will need to retain and pay for your own attorney and pay any judgment or settlement amount. This often comes as a shock to church leaders. You should immediately review your policy with your insurance agent to see if you have any coverage for such claims. If you do not, ask how it can be obtained. You may be able to obtain an endorsement for “employment practices.” Also, a “directors and officers” policy may cover these claims.

Sixth, the assistance of an attorney is vital in the drafting of a sexual harassment policy.

Demkovich v. St. Andrew the Apostle Par., 3 F.4th 968 (7th Cir. 2021).