Before getting started on the blog entry of the day, I put my absentee ballot in a drop box yesterday. Whoever you are voting for, please do vote. Also, my Braves beat the Dodgers yesterday in game one of the National League championship series. Can they win another three? I see the Tampa Bay Rays are up two on the Houston Astros. If Tampa Bay somehow wins the World Series, Tampa Bay will have teams that have won two professional championships in the same calendar year as the Tampa Bay Lightning has won the NHL Stanley Cup already.
Turning to the blog entry of the day, we look at a Seventh Circuit decision holding that the ministerial exception does not apply to hostile work environment claims. The case is Demkovich v. St. Andrew the Apostle Parish172119119119119 decided by the Seventh Circuit on August 31 of 2020. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.
Plaintiff Sandor Demkovich was hired in 2012 as the music director at St. Andrew the Apostle Parish, a Catholic church in Calumet City, Illinois. He was fired in 2014. Demkovich is gay. When he was hired, he had been with his partner (now husband) for over a decade. He also was overweight and suffered from diabetes and metabolic syndrome, and he had these conditions before St. Andrew hired him.
Demkovich’s supervisor was Reverend Jacek Dada. According to Demkovich, Reverend Dada subjected him to a hostile work environment based on his sexual orientation and his disabilities.12012012012017314 Demkovich alleges that Reverend Dada repeatedly and often subjected him to comments and epithets showing hostility to his sexual orientation, and increased the frequency and hostility after learning that Demkovich intended to marry his partner and again as the date of the ceremony approached. After the ceremony, Reverend Dada demanded Demkovich’s resignation because his marriage violated Church teachings. Demkovich refused, and Reverend Dada then fired him.
Demkovich also alleges that Reverend Dada repeatedly harassed and humiliated him based on his weight and medical issues. According to Demkovich, his job did not call for any particular physical-fitness requirements, and Reverend Dada never connected his disparaging and humiliating comments to Demkovich’s job performance. Demkovich alleges that Reverend Dada’s harassment on both grounds “humiliated and belittled” him, causing serious harm to his physical and mental health.
Defendants persuaded the district court to certify under 28 U.S.C. § 1292(b) a broad legal question, not limited to the factual details of the particular case. The district court certified the following question:
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?
Majority Opinion (Judge Hamilton), Holding That the Ministerial Exception Does Not Apply to Hostile Work Environment Claims
- The ministerial exception is an application of the First Amendment and not statutory interpretation.
- Plaintiff only challenges his work environment and not his termination.
- Churches are not exempt from federal employment discrimination laws as applied to their non-ministerial employees.
- All parties agree that plaintiff was a ministerial employee.
- The certified question assumes a hostile work environment.
- Religious organizations are not totally exempt from all legal claims by ministerial employees. For example, ministerial employees may be able to sue their employers and supervisors for breaches of contract and torts.
- The Ninth Circuit has drawn a line between tangible employment actions and hostile environment claims.
- The ministerial exception rationale simply doesn’t apply where harassment continues unrectified because it is impossible to claim that such harassment is a method of choosing clergy.
- Hiring, firing, promoting, retiring, transferring are all decisions that employers, including church related organizations, make to select those who carry out their work. Further employer control is available through a host of other tangible employment actions, such as decisions about compensation and benefits, working condition, resources available to do the job, training, support from other staff and volunteers, etc.
- Hostile environment claims involve different elements and specific rules for employer liability. Those differences show that a religious employer does not need an exemption from hostile work environment claims in order to be able to select and control its ministers.
- Hostile work environment claims are essentially tortious in nature. Such claims use different standards for holding an employer liable, and they do so precisely because of the behavior creating a hostile work environment is not essential for management supervision and control of employees.
- Hostile work environment claims have to meet a demanding standard.
- A hostile work environment is not a permissible means of exerting constitutionally protected control over employees to accomplish the mission of the business or the religious organization.
- Hosanna-Tabor175122122121121 made clear that its holding does not cover actions by employees alleging tortious conduct by the religious employers, and plaintiff is alleging classic tortious harassment.
- An employer’s need and right to control employees does not embrace harassing behavior that the Supreme Court has defined in numerous cases in terms of what unreasonably interferes with an employee’s work performance.
- The notion that such harassment is necessary to control or supervise an employee is an oxymoron. After all, one can presume that an employer is interested in maximizing the employee’s ability to perform his or her stated duties to further the organization’s objectives and not in favor of permitting an environment that actively inhibits job performance that is beyond the scope of that supervisor’s own employment.
- That the conduct may have been motivated by Catholic doctrine isn’t enough because the Catholic Church does not embrace such conduct as its own employment policy.
- Hosanna-Tabor’s decision not to extend constitutional protection to tortious conduct in combination with the Supreme Court’s understanding of hostile work environment as a tortious cause of action points toward allowing hostile work environment claim by ministerial employees so long as they do not challenge tangible employment actions.
- The ministerial exception protects the rights of religious employers and not supervisors within those organizations. Therefore, holding that tangible employment action directly attributable to employers are off limits makes sense. However, it equally makes sense that hostile environment claims should not come within the ministerial exception for the same reason.
- Supervisors within religious organizations have no constitutionally protected rights under the ministerial exception to abuse those employees they manage, whether or not they are motivated by their personal religious beliefs.
- The ministerial exception is not unlimited. Civil courts may hear and decide a range of other cases involving ministers and religious employers without violating the First Amendment.
- Successful hostile work environment claims frequently involve highly disturbing facts.
- An oral argument, defendants acknowledged that a religious employer could be civilly liable for a supervisor’s criminal or tortious conduct towards a ministerial employee.
- Accordingly, it is hard to fathom why a statutory case based on the same conduct would necessarily violate the First Amendment regardless of whether the supervisor claims a religious motive.
- The First Amendment would not give supervisors and coworkers of ministerial employees the right to leave nooses at the desk of a black minister while repeatedly subjecting him to verbal abuse with racial epithets and symbols. It also would not permit supervisors and coworkers to subject the teacher to pervasive and unwelcome sexual attention or to intimidating harassment based on national origin. Those kinds of harassment are not constitutionally necessary to control ministerial employees. Accordingly, an overarching ministerial exception goes too far.
- Religious employers have long been subject to employment discrimination suit by their non-ministerial employees.
- The Catholic Church has faced extensive litigation over torts committed by clergy in recent years and such litigation is not foreclosed by constitutional concerns.
- When it comes to cases involving churches, courts may get involved if they avoid issues of faith and stick to applying neutral, secular principles of law.
- Plaintiff is not asking the court to pass on religious doctrine or practices. After all, civil courts have nothing to say about whether the church should permit same-sex marriage or structure their organization in a certain way. The church is free to decide whether to retain the plaintiff or fire him. However, a hostile work environment claim is looked at under neutral generally applicable standards.
- As in cases applying secular legal rule to torts, contracts, or property disputes, courts may apply secular hostile environment jurisprudence to actions taken toward employees.
- An individual’s religious belief does not excuse him from compliance with otherwise valid law prohibiting conduct that the State is free to regulate.
- “Taking these lines of analysis together, we base our decision on three points. First, the Free Exercise Clause does not bar all hostile environment claims by ministerial employees. Second, the risk of procedural entanglement in such cases is modest because religious organizations have no generalized claim to immunity from litigation or regulation. Third, in hostile environment cases brought by ministerial employees, there is some risk of substantive entanglement, but that risk does not appear so severe that all such claims must be dismissed. We believe that risk can be managed by avoiding substantive decisions on issues of religious doctrine or belief and by balancing First Amendment rights with the employee’s rights and the government’s interest in regulating employment discrimination. We trust that district courts will manage these issues in their sound discretion. It is, of course, conceivable that certain cases may unavoidably present factual questions that would entangle courts excessively in substantive religious decision-making. District judges can narrow or dismiss such cases if they arise. But the possibility of some outlier cases does not persuade us that the First Amendment requires courts to bar an entire category of claims authorized by federal statute.”
Dissenting Opinion by Judge Flaum
- Plaintiff’s complaint alleged both a hostile work environment claim as well as claims based upon tangible employment actions.
- The 10th Circuit has held that the ministerial exception bars hostile work environment claims.
- A church must not be constrained in its dealings with ministers by employment laws that interfere with the church’s internal management, including antidiscrimination laws.
- The ministerial exception precludes any inquiry whatsoever into the reasons behind a church’s ministerial employment decision.
- The majority opinion will result in the encroachment by the State into an area of religious freedom that States cannot go into under the free exercise clause.
- Control of a minister necessarily includes telling a minister that his behavior does not conform with church doctrine and by instructing him to change his behavior.
- It is not for the court to regulate how a church communicates with its minister to further its religious objectives.
- Churches will now have the incentive to employ ministers that lessen their exposure to liability rather than hire those that best further there religious objectives.
- Deciding a hostile work environment claim with respect to a church necessarily means looking at the plaintiff’s terms and conditions of employment in matters involving the church’s governance and administration, including its employment relationship with the plaintiff, its control over the plaintiff, and the plaintiff’s workplace conditions.
- Remedies for outrageous acts do exist but they are not contained within federal employment law.
- I certainly see this getting appealed to the United States Supreme Court. It is a topic of great interest to the Justices. Also, a Circuit Court split exists. If Justice Ginsburg was still on the court, I would say the swing vote would be Justice Roberts or possibly Justice Kavanaugh. It is impossible to predict what a person does once they are on the Supreme Court. That said, if Justice Barrett is confirmed the church may very well prevail easily. We already know from Justice Gorsuch’s writings and opinions that he would be very likely to find in favor of the church. Whether a Supreme Court decision deciding in favor of the church is good or bad, depends upon your own particular viewpoint.
- Judge Barrett was not on the panel hearing this case. Since it is likely that this case will come before the Supreme Court, she would be very unlikely to answer any questions about the scope of the ministerial exception at the confirmation hearings, which are taking place now.
- How high the bar is for deciding hostile work environment claims is being debated hotly. For example, Minnesota has said things have to change, as we discussed here176123123122122.
- This decision and jurisdictions following the Seventh Circuit will force plaintiffs to craft their complaint in such a way so as to make clear that hostile work environment claims are being alleged and not tangible employment actions. Plaintiffs will also want to make sure they allege as many facts as possible going to the severe and pervasive nature of the conduct. Finally, plaintiffs will also want to utilize the Minnesota case to give them more of a chance for succeeding in hostile work environment claims.
- There is lots of publicity about how the next Supreme Court justice may affect the affordable care act and abortion. This case might be another one where the next Justice may profoundly affect the outcome of the case.
- Interesting approach by the defense in this case to argue that church doctrine permitted a hostile work environment.
- If you are in a protected class, it is hard to recommend employment by a religious entity after Lady of Guadalupe177124124123123. A decision allowing religious organization to be immune from hostile work environment claims for their ministers would only strengthen that recommendation. It may be a pyrrhic victory because religious organizations may find it hard to hire people from protected classes, especially if the Supreme Court reverses Demkovich.