Category: church employment

THE “NOT RELIGIOUS ENOUGH” TEST OF THE 9TH CIRCUIT

The Ministerial Exception of the First Amendment, the doctrine that employment laws do not apply to church employment decisions because such decisions involve ecclesiastical decisions shielded from judicial or legislative regulation, only applies to church employees that have a religious function. The history of that limitation on the doctrine, and whether it is actually a limitation consistent with the First Amendment idea of a constitutional level wall between government power and church dominion, is not the focus of this report. Rather, the manner by which the doctrine is applied is once again the question. Generally, the latest statement of the rule and its application is the totality-of-the-circumstances test articulated by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C., 565 U.S. 171 (2012). The problem with this test is that the totality to be weighed must be weighed subjectively.

In Biel v St. James School, Slip Op., ___ F3d ___ (9th Cir. 2018), the federal trial court dismissed the case because the Plaintiff was a 5th grade teacher in a Catholic elementary school that, at the least, taught religion thirty minutes a day in addition to teaching secular subjects and interwove Catholic religious teachings into other lessons. The Plaintiff alleged her annual contract after one year of service was not renewed in violation of the Americans with Disabilities Act because the Plaintiff anticipated chemotherapy to address breast cancer. The 9th Circuit reversed the trial court because it determined the Plaintiff was insufficiently religious to be found to be ministerial to trigger the doctrine and stated:

Biel, by contrast, has none of Perich’s credentials, training, or ministerial background. There was no religious component to her liberal studies degree or teaching credential. St. James had no religious requirements for her position. And, even after she began working there, her training consisted of only a half-day conference whose religious substance was limited. Unlike Perich, who joined the Lutheran teaching ministry as a calling, Biel appears to have taken on teaching work wherever she could find it: tutoring companies, multiple public schools, another Catholic school, and even a Lutheran school.

The 9th Circuit held that being required to teach Catholic religion thirty minutes a day was “no religious requirement for her position.” Likewise, the requirement, and the apparently mandatory training that went with it, that Catholic religious doctrine be incorporated in other lessons was “no religious requirement for her position.”

It seems rather odd that the 9th Circuit wants to be the leader in curtailing the scope of religious freedom protected by the First Amendment. The “totality” test of Hosanna-Tabor is not a scale upon which to weigh the amount of religion found in an employment relationship but rather based on the “totality” it is a determination whether there is an ecclesiastical component in the employment relationship. If there is an ecclesiastical component, the First Amendment is triggered. Once triggered, the First Amendment should not be any more vulnerable to subjective interpretation than any other constitutional prohibition. Only someone that has never been inside a church elementary school, of any denomination, could possibly fail to see the ecclesiastical component of the employment.

DEFAMATION AND EMPLOYMENT CONTRACTS WITH PASTORS

The exact line between church and state is in a tidewater subject to ebb and flow. While that is somewhat less true when the Ministerial Exception can be invoked in federal employment civil rights claims, when the employee is a minister, it is still true in that instance as well. The non-lawyer sometimes forgets, as do some lawyers, that the right to contract is enshrined in the Constitution as is the First Amendment right. Balancing these two rights, which are both critical to a free society, is sometimes a matter of mere opinion.

In Turner v Tri-County Baptist Church, 2018 Ohio 4658 (Ohio App. 12th, 2018), the Plaintiff alleged breach of contract and defamation. The trial court dismissed the lawsuit invoking the Ecclesiastical Abstention Doctrine. The appellate court affirmed by a plurality. The facts stated by the Court were that the Senior Pastor recommended that the Plaintiff retire or accept a part-time position. When the Plaintiff declined the Plaintiff was placed on a “Performance Growth Initiative.” Later, Plaintiff was demoted to part time status. This may have been part of a plan to “counsel out of the business” and thus move Plaintiff to retirement. However, at a congregational meeting, the Plaintiff stated his move to part-time status was involuntary. Believing that was divisive, the Plaintiff was terminated by the church’s governing board. The Court held that Ohio would not extend the Neutral Principles Doctrine beyond church property disputes. Therefore, the Plaintiff’s breach of contract and defamation claims were barred. There was no need for an inquiry into whether entanglement with ecclesiastical matters could be avoided by the Court.

If Courts can be convinced to articulate the bounds of Neutral Principles with this level of clarity, i.e., that the doctrine only applies to church property, then the safe harbor for churches would expand and be predictable. However, the tidal force that may erode the shoreline will be when churches use written employment contracts in such a legal framework. If written church employment contracts were unenforceable altogether then ministers would always face uncertainty in congregational churches or denominational churches that had unclear employment guarantees at the local level. As the dissent in the foregoing case exemplifies, the sanctity of contracts cannot simply be ignored.

NEGLIGENT HIRING AND NEGLIGENT SUPERVISION CLAIMS AGAINST CHURCHES

Negligent hiring and negligent supervision claims arise when an employer is on actual notice, or by reasonable minimum inquiry should have been, that the employee represents a risk of harm. In the church setting, that risk is almost always sexually vulnerable teenagers or children in general. A church will generally not be held liable for the actions of a rogue employee absent actual notice of the risk. Generally, that actual notice would include a prior bad act or an unresolved allegation of a prior bad act. It is often amazing how trusting and naïve church leadership can be in such matters. Platitudes about forgiveness and redemption are not defenses. Only very extensive proof of rehabilitation after a prior bad act, proof of repentance in the parlance of some, might be a defense. However, there are many that believe, with or without scientific support, that from a prior bad act of sexual misconduct by an adult with a child (anyone below the age of lawful consent) there is no coming back. Some of those people may make it on to a jury or even the bench.

In Bourque v Roman Catholic Diocese of Charlotte, NC, Slip Op. (NC App. 2018), the church was accused of negligent hiring and negligent supervision of a seminarian that acted as a youth minister that also allegedly had sexual relations with a fourteen year old parishioner. The sexual misconduct allegedly continued after the seminarian left the seminary and was taken in by the family of the victim while the seminarian developed a new life path. The reason for departure from the seminary is not reported. Clearly, consent was not an issue because the fourteen year old could not consent and was raped if the sexual conduct occurred as alleged. The church appealed the refusal of the trial court to dismiss the case on Ecclesiastical Exception grounds. The appellate court affirmed the trial court and held that neutral principles of law governed the claim of negligent supervision. If the church was on actual notice of the risk represented by the alleged wrongdoer, what the church knew was not detailed in the opinion, it could be liable. The appellate court, however, did order dismissal of the negligent hiring claim if it was based on a failure to train.

Attempting to terminate a lawsuit on a motion to dismiss in most jurisdictions is an uphill slog at best. In most jurisdictions, motions to dismiss are strictly limited as to tort claims. Negligent hiring claims and negligent supervision claims will not be viable as to ministry performance issues but will likely be viable as to sexual molestation claims. Too many churches still fail to be wary about the issue.