“The First Amendment ministerial exception protects a religious organization's employment relationship with its ministers, from hiring to firing and the supervising in between.”[1]
This summer, with the foregoing declaration, the en banc Seventh Circuit Court of Appeals (covering Illinois, Indiana, and Wisconsin) dismissed a minister’s hostile work environment claim against his church employer and significantly clarified and strengthened religious institutions’ rights pertaining to their employment of ministers. The Court’s decision in Demkovich v. St. Andrew the Apostle Parish, Calumet City, overturned a smaller panel of the Circuit Court holding that the “ministerial exception” was not applicable and therefore that ministerial employees could pursue hostile work environment claims.
As a result of this decision, churches and other worshipping bodies within the Seventh Circuit’s jurisdiction (and perhaps beyond), should enjoy legal protection from a wider range of ministerial employment-related claims as a result of the decision. Such worshipping bodies may continue to lean into their sincerely held religious beliefs as a strong basis for their important employment-related decisions. But this decision intensifies a split among the federal courts of appeals, which may lead to a U.S. Supreme Court ruling with further clarification. The following paragraphs provide some background to the decision, analyze the court’s reasoning, and discuss implications for religious employers and further court proceedings.
Background
As addressed in W&O’s prior blog, federal law protects religious employers from certain discrimination claims, even where such claims attach to the secular activities of a religious employer. The ministerial exception requires courts to “stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”[2] The ministerial exception is not a creature of statute. Rather the ministerial exception is a long-standing judicial application of the First Amendment religion clauses. Ultimately, the “purpose of the ministerial exception is to ensure that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the church’s alone.”[3]
Hosanna Tabor: The Ministerial Exception Recognized
Though courts have long applied the ministerial exception, it was first affirmed by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC in 2012. In that case, a parochial schoolteacher sued her employer, claiming that the church/school had violated her rights under the Americans with Disabilities Act. The Court reasoned that the church’s right to select and control its own ministers was a matter “strictly ecclesiastical,” and thus protected under the First Amendment. Accordingly, the Supreme Court barred the teacher’s claim. “Because [Plaintiff] was a minister within the meaning of the exception, the First Amendment require[d] dismissal of this employment discrimination suit against her religious employer.”[4]
Our Lady of Guadalupe School: The Boundary Lines Extended
Since Hosanna-Tabor, courts have wrestled with the question of who is a “minister” for purposes of the exception. Last year, in Our Lady of Guadalupe School v. Morrissey-Berru,[5] the Supreme Court directly addressed that question. Rejecting formulaic checklist ministerial inquiries, the Court determined instead that functionality is paramount: “What matters, at bottom, is what an employee does.”[6] Specifically, the Court said, employees of religious organizations whose jobs “lie at the core of the religious organization’s mission” are likely “ministers” for purposes of the exception and therefore may not sue their employers for adverse employment actions. Under Our Lady of Guadalupe, courts thus must not judicially scrutinize religious employers’ hiring, disciplinary, or termination decisions regarding employees whose job it is to carry out religious activities as part of the employers’ religious mission.[7]
Demkovich: Just How Far Do the Lines Extend?
While Our Lady of Guadalupe School considers what type of employees are covered by the ministerial exception, the case of Demkovich v. St. Andrew the Apostle Parish, Calumet City focused on what type of claim might fall under it. Specifically, this case addressed whether a hostile work environment claim against a religious employer was within the ambit of the exception.
Demkovich’s Claim: Employment Discrimination, Recast as Harassment
Sandor Demkovich was hired as a music director in 2012 and is gay. In his complaint, Demkovich alleged that his church supervisor subjected him to harassment, known in legal parlance as a “hostile work environment,”[8] which included regular verbal hostility relating to his sexual orientation and marriage ceremony to his then-partner. The complaint further alleged that the Church supervisor “repeatedly harassed and humiliated him based on his weight and medical issues.” This conduct, according to Demkovich, “humiliated and belittled him” causing serious harm to his physical and mental well-being. The demeaning remarks about Demkovich’s sexual orientation allegedly increased after the announced plans to marry his partner. The Church ultimately asked Demkovich for his resignation because his marriage was contrary to the teachings of the Catholic Church. Demkovich refused and was subsequently fired.[9]
Initial Court Answer: A minister’s hostile work environment claim is not automatically precluded under the ministerial exception
Demkovich sued the Church and Archdiocese for illegal employment discrimination resulting from his employment termination. His claim was initially dismissed pursuant to the ministerial exception. He then amended his complaint to include a claim for hostile work environment. At the church’s request, the District Court certified the following legal question to the Seventh Circuit:
“Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?”[10]
On initial appeal, a three-judge panel of the Seventh Circuit determined that the ministerial exception did not apply to hostile work environment claims. In reaching its conclusion, the court distinguished between “claims challenging tangible employment actions” and “hostile environment claims that do not challenge tangible employment actions.”[11] For the court panel, a tangible employment action is a means by which an employee’s supervisor “brings the official power of the enterprise to bear on subordinates” and require “an official act of the enterprise.”[12] Obvious examples of tangible employment actions are hiring and firing. But as the court noted, tangible employment actions can also include things like an employer’s denial of training and resources or a decision to exclude an employee from certain meetings.[13]
This court panel determined that intangible hostile work environment claims are distinguishable, regardless of whether an employer is religious or not, because the “behavior that creates the hostile work environment claim is not essential for management supervision and control of employees.”[14] The court then required a determination of whether the alleged conduct falls within the scope of employment or not. In other words, the court determined that employers are not legally permitted to utilize harassing abusive conduct to control their employees because under employment discrimination law, such conduct is not within the scope of supervision and is, in fact, an “oxymoron.”[15] “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.”[16]
Full Seventh Circuit’s Reversal: A hostile work environment claim is not just a legal question, but a religious one
On review of the panel’s decision, the full en banc Seventh Circuit reversed.[17] As noted above, the en banc appellate court announced a wholesale bar to employment discrimination claims against religious employers based on significant constitutional concerns: “The First Amendment ministerial exception protects a religious organization's employment relationship with its ministers, from hiring to firing and the supervising in between.”[18] Since Demkovich’s hostile work environment suit fell comprehensively within his employment relationship with a church, it was thus subject to— and constitutionally barred by—the ministerial exception.
The court provided two overarching reasons for its decision. First, the court observed that employment matters in ministerial contexts are fundamentally different in nature from employment matters in other non-religious employment contexts. As a legal, constitutional matter:
Religion permeates the ministerial workplace in ways it does not in other workplaces. Ministers, by their religious position and responsibilities, produce their employment environment. From giving a rabbinic sermon on a Jewish holy day to leading a mosque in a call to prayer, ministers imbue a religious organization with spirituality. Given a minister's role in the religious organization's practice of the faith, allowing hostile work environment claims here “intrudes upon more than a mere employment decision.” Put differently, analyzing a minister's hostile work environment claim based on another minister's conduct is not just a legal question but a religious one, too.[19]
Second, and related to the first rationale, the court expressed deep concern for the court’s “civil intrusion and excessive entanglement—that the ministerial exception prevents.” As the court observed, “Especially in matters of ministerial employment, the First Amendment thus ‘gives special solicitude to the rights of religious organizations.’” Concluding on a high-road approach to First Amendment constitutional interests:
“Adjudicating Demkovich's allegations of minister-on-minister harassment would not only undercut a religious organization's constitutionally protected relationship with its ministers, but also cause civil intrusion into, and excessive entanglement with, the religious sphere.”[20]
Implications for Religious Employers
In the wake of the Seventh Circuit’s decision, religious employers should take note of the following important takeaways.
1. Religious employers should continue to enjoy strong religious freedoms in employment decisions affecting “ministers.”
The Seventh Circuit’s en banc decision preserves the relative autonomy of churches, synagogues, mosques and other worshipping entities in employment-related decisions affecting their ministers, rabbi’s, imams, and other religious leaders. Worshipping bodies may continue to act according to their convictions related to their religious leaders and base employment-related decisions on their sincerely held beliefs and convictions.
2. The Court’s broad declaration “from hiring to firing and the supervising in between” extends the scope of the legal protections for religious employers in employment decisions affecting their ministers.
Until now, most applications of the ministerial exception have involved claims related to alleged discrimination under Title VII, the Americans with Disabilities Act, and related anti-discrimination schemes. Under Demkovich, the scope of claims has widened to include certain harassment claims. Given the court’s broad range of applicability, even further extension may be expected for ministerial exception-based protections for religious employers. Religious employers needing to make difficult adverse employment-related decisions concerning ministers should continue to enjoy strong legal protections under the ministerial exception doctrine.
3. The ministerial exception does not entitle employers to mistreat their employees or otherwise act illegally.
The ministerial exception should never be used by religious employers as a license to mistreat or harm their employees, to illegally retaliate against employees, or otherwise to break the religious organization’s own governing rules for employment decisions. While civil courts are reluctant to get involved in a religious institution’s internal processes, the ministerial exception does not bar tort (civil wrong) claims by employees against negligent employers. Further, the ministerial exception does not insulate religious institutions from obligations to follow their own duly adopted internal processes. In such cases, a court may intervene using neutral principles of law and find a religious defendant liable.
Additionally, not all employees involved with ministry work are subject to the ministerial exception for purposes of discrimination claims. Some careful legal analysis thus may be warranted. Best practices generally dictate that all employees be treated fairly and reasonably, consistent with appropriate conduct expectations.
4. Demkovich, at present, is legally binding within the geographic boundaries of the Seventh Circuit. Religious institutions elsewhere should be mindful of the applicable law within their own jurisdictions.
Demkovich may be regarded as “good law” within the Seventh Circuit – at least until such time as it may be overturned on appeal (per below). The Seventh Circuit has jurisdiction only over the federal districts court in Wisconsin, Illinois, and Indiana. As noted in the Demkovich en banc ruling, and the dissent thereto, a split exists among the federal circuit courts on whether the ministerial exception is applicable to harassment claims, such as in this case. Religious employers thus should be mindful of the law in their particular jurisdiction and consult with qualified legal counsel to determine whether the ministerial exception is applicable for specific facts and circumstances.
5. Demkovich is likely to be appealed.
The Seventh Circuit’s application of the ministerial exception is in accord with the Tenth Circuit (spanning Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming). However, in its consideration of a different, but similar case, the Ninth Circuit (covering Alaska, California, Oregon, and Washington) reached a different conclusion, therefore increasing a judicial split among the federal circuit courts of appeal. The U.S. Supreme Court is more likely to decide cases where a circuit split exists to ensure a uniform application of law across the country. Indeed, the attorney for plaintiff Demkovich has stated that they are likely to request the Supreme Court hear the case.[21] Our law firm will be closely following further developments; in the event that an appeal is filed we expect to provide further updates on our W&O blog.
[1] Demkovich v. St. Andrew the Apostle Par., No. 19-2142, 2021 U.S. App. LEXIS 20410, at *33 (7th Cir. July 9, 2021) (“Demkovich II”). For clarity in citation, the three-judge panel decision in 2020 will be referred to as Demkovich I and the full Seventh Circuit’s en banc decision in 2021 will be referred to as Demkovich II.
[2] Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2060, 207 L. Ed. 2d 870 (2020).
[3] Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 (2012).
[4] Id.
[5] Our Lady of Guadalupe, No. 19-267, 2020 WL 3808420 (U.S. July 8, 2020).
[6] Our Lady of Guadalupe, at 10.
[7] For additional legal analysis of Our Lady of Guadalupe, see here.
[8] For more information about hostile work environment claims generally, see here.
[9] Demkovich II, at *3-5.
[10] An interlocutory appeal is an appeal that occurs before final disposition of the case. Here, before the district court had ruled on the full case, the defendant church persuaded the District Court to seek the higher appellate court’s direction on a question of law arising to inquire whether an ADA hostile work environment claim was precluded under the ministerial exception. Under the certified question of law, the appellate court—the Seventh Circuit—was asked to consider the question as a matter of law, with all questions of fact viewed favorable to the plaintiff. In other words, the Seventh Circuit was to consider that everything the plaintiff claimed was true, would the plaintiff have a right to sue the church as a minister as a matter of law for his hostile work environment claim notwithstanding the ministerial exception. Demkovich v. St. Andrew the Apostle Par., 973 F.3d 718, 721-22 (7th Cir. Aug. 31, 2020) (“Demkovich I”).
[11] Id. at 720.
[12] Id. at 727 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762, 118 S. Ct. 2257, 2269, 141 L. Ed. 2d 633 (1998)).
[13] Id. at 724.
[14] Id. at 728.
[15] Id. at 729.
[16] Id. at 728.
[17] The Court on its own initiative “vacated” (voided) the panel opinion and reheard this interlocutory appeal as a whole “en banc.”
[18] Demkovich II, at *33.
[19] Id. at 17-18 (internal citations omitted).
[20] Id. at *15 (citing Hosanna-Tabor, 565 U.S. at 189).
[21] Dan Popscun, “‘Ministers’ Shielded from Harassment Claims, 7th Cir. Says (1)” Bloomberg law, referenced here (last accessed July 27, 2021).
