Our reports of the United States Supreme Court decisions in Our Lady of Guadalupe School v Morrissey-Berru, 140 S. Ct. 2049 (2020) and Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 565 U.S. 171 (2012) may have suggested that federal employment law claims were barred by the Ministerial Exception.  However, while the decision to hire or fire a ministerial employee might be constitutionally protected under these cases, some courts continue to search for actionable theories of recovery against churches in employment matters.

In Demkovich v St. Andrew the Apostle Parrish, Slip Op. (7^th Cir. 2020), the United States Court of Appeals for the 7^th Circuit decided to adopt an approach similar to the 9^th Circuit and rejected the prohibition recognized by the 10^th Circuit.  The Plaintiff was a music director for two years in a local denominational church.  As we have seen in other cases, music directors are generally regarded as ministerial because of their extensive involvement in developing worship services and similar activities.  Plaintiff claimed he was fired because of his same sex marriage.  He claimed the local church knew of his sexual orientation at hiring but did not reach a decision to terminate until after his same sex marriage while employed became known.  Plaintiff claimed that leading up to the firing, he was subjected to hostile “comments and epithets” regarding sexual orientation and that he was “harassed and humiliated” based on “weight and medical issues” (“diabetes and metabolic syndrome”).”  The trial court dismissed the claim regarding hostile “comments and epithets” regarding sexual orientation and denied dismissal of the claim regarding comments about weight and medical issues that caused Plaintiff to be ““harassed and humiliated.”  The 7^th Circuit reversed the dismissal and affirmed the denial of a dismissal and remanded for discovery, other motions, and possibly trial.  The 7^th Circuit held that while complaining about the termination was prohibited by the Ministerial Exception, complaining about the treatment by a supervisor was not prohibited.  The 7^th Circuit reasoned that creating a “hostile environment is not essential for management supervision and control of employees” and therefore, not protected by the First Amendment separation doctrine.  The local church or denomination, if it knew of the hostile work environment, and failed to act could be found liable.  Generally, in creating a “hostile work environment,” the “the behavior of individual coworkers and / or supervisors …is generally treated as outside the scope of employment.”

Church employers can generally avoid these risks by acting definitively and without hesitation to terminate ministerial employees without advising the employee of the reason for the adverse employment action.  Churches and denominations are especially prone to delay, deliberation, “tough love,” and internal hand wringing.  These actions, even well meaning, will be subjected to spin doctoring, especially if comments or actions are made regarding a Title VII protected class or a disability.  Such conduct will be characterized, rightly or wrongly, to describe a “hostile work environment.”  Because ministerial employees are inherently insiders, and not volunteers, churches and denominations are tempted to believe erroneously that what is said will remain within the cloister.

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