Church and parachurch employers, especially church schools, struggle with whether federal discrimination statutes govern their employment decisions. The First Amendment’s clear language, “shall make no law respecting an establishment of religion,” is constantly in doubt by some jurists. To them, sweeping freedom cannot possibly be the intent of the draftsman.
In Billard v Charlotte Catholic High School, Order (WD NC, 2021), the Plaintiff started out as a full-time drama teacher and performed as such for over ten years. During that time the Plaintiff’s heterosexual marriage to a woman ended in divorce. During that same time, the Plaintiff began a relationship with a male. The Plaintiff retired from full time teaching but continued as a substitute teacher for two years. The Plaintiff was not required to sign an employment contract as a substitute teacher. During that period, the Plaintiff announced on Facebook engagement to a male. Thereafter, Plaintiff was not recalled to substitute. Upon inquiring about why no further substitute teaching assignments were forthcoming, Plaintiff was told by an Assistant Principal that Plaintiff could no longer act as a substitute teacher because of the Facebook announcement of same sex engagement. The federal trial court granted summary judgment to Plaintiff on a Title VII discrimination claim. Because Plaintiff was a teacher of a secular subject, because the school did not require religious training or duties of such teachers, and because the school did not require the teachers to ascribe to any particular denomination, the federal trial court held the Ministerial Exception did not apply. The federal trial court held “as of now, religious employers have strong legal protections for hiring and firing employees who have a role in promoting their religion’s message if the employment decision is religiously motivated.” The Plaintiff, however, had no such duties and the church school was not shielded from Title VII duties or liabilities.
Church schools that intend for their employees to comply with church doctrine should require it in employment contracts. Those contracts should contain morals clauses. Those same rules should appear in employee handbooks. Both should be drafted by lawyer. The employee should sign a receipt for the handbook. The absence of both the handbook and the contract in the reported case probably contributed to the outcome. Another problem arises when a church school cannot make up its mind about whether it is, or is not, denominational, non-denominational, or secular. In the reported case, the secular subject teachers may have been separated from religious instruction or observance, which seems anachronistic in a church school.
The ongoing tension between federal civil rights employment statutes, the Ministerial Exception and the Ecclesiastical Abstention Doctrine has not ended even while greatly reduced due to recent United States Supreme Court decisions. “The ministerial exception bars adjudicating employment disputes “involving those holding certain important positions with churches and other religious institutions.”” Our Lady of Guadalupe Sch. v Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020); Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 US 171, 194-95 (2012).
In Trotter v United Lutheran Seminary, Memorandum Opinion (E. D. Penn. 2021), the federal trial court overruled motions for summary judgment (which is probably the last step before trial in the case). The Plaintiffs alleged they were victims of retaliation and hostile work environment discrimination. The Plaintiffs held positions titled: Vice President for Advancement and Vice President for Student Vocation and Formation. The trial court held that on the facts presented the Plaintiffs did not teach religion or otherwise carry out the duties of ministers. One of the Plaintiffs was, indeed, an ordained minister. The trial court held that ordination in isolation did not trigger the Ministerial Exception.
Parachurch officers may perform duties sufficiently secular, and not participate in duties that are sufficiently or inherently ministerial, that federal civil rights employment claims remain viable. The record that can be presented to a court may determine the sufficiency of either. Such a record must be carefully developed. Development of such a record should begin earlier than at the time of a claim or lawsuit.
Federal employment law generally precludes termination or other adverse employment actions based on discrimination. It also provides a remedy in damages for hostile actions based on the same discrimination. However, applying these laws to the internal workings of churches not only implicates church management decisions, but even the way some denominations might interpret what constitutes discrimination. In some church traditions, otherwise lawful and protected sexual choice and conduct is both banned and declared to be sin. The degree of church discipline imposed to an outsider might appear to be a hostile work environment.
In Demkovich v St Andrew Parish, Slip Op. (7th Cir. 2021), the United States Court of Appeals for the 7th Circuit heard this case for a second time. In its 2020 opinion, a divided panel of the Court affirmed the district court’s decision to deny dismissal of the hostile work environment claim and reversed the dismissal of the sex discrimination claims. 973 F3d 718 (7th Cir. 2020). Hearing the case en banc, the 2020 opinion was vacated. Also, the United States Supreme Court extended its prior holdings barring federal employment law claims against churches by ministers. Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049, 2060 (2020) (“Under this rule, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.”). The Plaintiff was the music director, choir director and organist. He was a gay man that announced his intent to “marry his partner while still employed by the church.” The Plaintiff alleged he suffered from diabetes, metabolic syndrome, and weight issues. The Plaintiff claimed that all of these events drew negative comments from the parish priest and ultimately employment termination. The 7th Circuit ordered the trial court to dismiss all claims.
Our original advice about the law in this area remains: church employers can generally avoid these issues by acting definitely in employment matters. Hand wringing, “tough love,” and long deliberations invite second-guessing or other allegations. Fat Shaming in the Cloister, September 5, 2020. Employees that violate the established moral precepts of the denomination or church generally cannot hold ministry positions.
Most churches that terminate an employee, and possibly pay a severance, would not likely continue compensation to even a former ministerial employee. However, due to the distinctly different nature of some hierarchical churches, it can happen as a matter of church polity. In non-hierarchical churches and denominations, it can happen because of sympathy.
In the case of In Re Roman Catholic Diocese of El Paso, Slip Op. (Tex. App. 8th, 2021), the former clergyman was placed on administrative leave and his “faculty” removed in 1999. In other words, the clergyman was no longer “licensed” to perform clerical duties. The clergyman was paid monthly payments that church cannon law named “decent support.” The payments and administrative leave arose from a criminal charge that was later dismissed. In 2016, the church reduced the monthly payments by 44%. Even though the church issued a W2 and sometimes referred to the monthly payment as “payroll,” the Court held the payment was governed by canon law, was classified as charity by canon law, and was under the discretion of the presiding bishop as to amount. There was no employment contract between the former clergyman and the church. The former clergyman sued and claimed the monthly payment reduction was motivated by age discrimination. The appellate court ordered the trial court to dismiss the case pursuant to the Ecclesiastical Abstention Doctrine. The opinion explored every plausible way in which the claim could be developed and determined that all roads led to a collision with canon law, an area in which the Courts would not intrude.
Termination of a clergyman for most churches does not present viable post-termination non-contractual claims. If the termination itself is outside of the jurisdiction of a court because of the Ministerial Exception or the Ecclesiastical Abstention Doctrine, post-termination events rarely arise. Severance packages and, as in the reported case, a charitable allocation for “decent support,” may form the factual basis for post-termination claims. However, written post-termination severance packages are usually contractual and if all the compensatory terms are met, no plausible claim survives. In any event, if termination is warranted vacillation, no matter how well intended, will prove up the worldly maxim that “no good deed goes unpunished.”