We first reported the trial court’s summary judgment in May 2017 that held that the organist was sufficiently ministerial to preclude a federal employment law claim against a church because of the Ministerial Exception. Section 702 of the Civil Rights Act of 1964 expressly excludes employees charged with religious activities from the reach of the law. Likewise, the First Amendment Ecclesiastical Abstention Doctrine also precludes secular court intervention in church employment matters. The struggle has been to determine whether a plaintiff in a lawsuit is sufficiently ministerial or religiously educational in their job duties to trigger the Ministerial Exception. Since Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 US 171 (2012) was decided several different methods of implementing the factors developed by the Supreme Court have arisen.
In Sterlinski v Catholic Bishop of Chicago, Slip Op. (7th Cir. 2019), the federal appellate court affirmed the trial court’s grant of summary judgment. As we noted in May 2017, the Plaintiff was originally the Director of Music but in later years no longer had those duties. The church successfully argued in the trial court that as organist plaintiff still played a vital role in the worship services. The 7th Circuit uses a test it described as “whether the employee served a religious function.” Also, the 7th Circuit applied the test from the perspective of the religious employer. The question was not whether the employer was correct but rather whether the employer sincerely believed it. The 7th Circuit also rejected the 9th Circuit’s approach set forth in Biel v St. James School, 911 F3d 603 (9th Cir. 2019) (reported by us in December 2018 in the post entitled, The Not Religious Enough Test of the 9th Circuit). The 9th Circuit approach was that the plaintiff had to be “religious enough” in the opinion of the Court and did not consider the perspective of the employer. The 7th Circuit rejected the 9th Circuit’s formulation also because the 7th Circuit believed the 9th Circuit’s approach would lead trial courts to entanglement in doctrine and practice to determine whether the employee was “religious enough.”
As we noted in May 2017, part of the legal problem the church faced the church created by its piecemeal demotion of the organist from the position of Director of Music. There would have been no meaningful dispute about whether a Director of Music was ministerial in a church. Also, there did not seem to be a written job description or an employment agreement that set forth the ministerial or religious quality of the job. The trial court, in the case reported in this post, relied upon a denominational directive, the 87 page music ministry directive from the Council of Bishops, to indicate the religious imperatives that the organist was expected to implement. The lesson should be that in these disputes there may be many sources of church authority governing the activity in question which may cumulatively or independently define the employment role as religious and therefore ministerial.