PARA-CHURCH ORGANIZATIONS: “TOO MUCH PARA?”

While this website is focused on church litigation, churches are not monolithic organizations.  Churches historically created much of our civilization by founding schools and hospitals and continuing to do so.  While many of these schools and hospitals remain under the ownership and direct control of churches or denominations, economics and the changing focus of a particular church or denomination has caused some severances.

In Penn v New York Methodist Hospital, Slip Op. (2nd Cir. 2018), the United States Court of Appeals for the 2nd Circuit affirmed a trial court summary judgment that held that the hospital founded by a church was still sufficiently religious that one of its full time employee Duty Chaplains was subject to the Ministerial Exception Doctrine and could not pursue claims of employment discrimination.  There was no dispute that the Duty Chaplain had no duties other than religious as did the three or four other Duty Chaplains.  They conducted religious observances and provided religious counseling.  The analysis of the majority opinion was interesting because the issue was whether the formerly Methodist hospital retained sufficient vestigial religious characteristics to cause issue entanglements implicating Ecclesiastical Abstention Doctrine concerns.  The dissent was interesting for the same reason.

The majority noted the twenty-four hour religious pastoral care provided by the pastoral care department in which Plaintiff was employed and the Employee Handbook emphasized the Methodist history of the hospital and described the pastoral care provided as an “ecumenical program.”  Three of the seventeen governing board members were Methodist ministers even though no one could recall how they were appointed, i.e., whether it was a formal requirement or fortuitous.  The President of the Board had to be selected with the “advice and counsel” of the local Methodist Bishop.  The bylaws required that every board meeting begin in prayer.  Every year, the hospital provided free health screenings to a dozen Methodist ministers and their spouses.  While formal ordination was not required, every chaplain was considered “clergy.”  The supervisor of the pastoral care department was the “Staff Chaplain” and had to have a Master’s Degree in Divinity or equivalent.  However, the chaplains did not have to be Methodists.  Indeed, one was a Rabbi, one was Catholic, and one was Greek Orthodox even though Plaintiff was a Methodist.  Two other critical items are only mentioned in passing:  the Plaintiff admitted he was “primarily responsible for ministry” and the Plaintiff was terminated after an another employee complained of “sexually inappropriate comments.”

While the majority thought the hospital still had sufficient religious accoutrements to warrant application of the Ministerial Exception Doctrine, the dissent did not.  The dissent thought the hospital’s “minimal vestiges of religious lineage” resulted in setting “the bar too low.”  The dissent noted there was no evidence the Methodist Church retained influence over the hospital’s day to day operations or long-term planning.  The dissent also did not find that “Methodist religious doctrine” guided either the hospital or the hospital’s pastoral care program.  Of course, it seems to this author that both of those reasons required the learned judge to make ecclesiastical judgments about what constituted Methodist doctrine.  The dissent did not explain how retaining at least some say over who would serve as board President in the bishopric was not influence.  However, the point of the dissent that should not be missed is that compared to other para-church organizations the dissent thought this hospital was insufficiently religious to qualify for an exemption from federal employment discrimination laws.

The lesson for para-church organizations from this case if that if the religious heritage is to be preserved it should be preserved in the organizations governing documents, including the Employee Handbook, and that the organization’s religious perspective should be well and easily identifiable.

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