Category: church employment

FAT SHAMING IN THE CLOISTER

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. (7th Cir. 2020), the United States Court of Appeals for the 7th Circuit decided to adopt an approach similar to the 9th Circuit and rejected the prohibition recognized by the 10th 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 7th Circuit reversed the dismissal and affirmed the denial of a dismissal and remanded for discovery, other motions, and possibly trial.  The 7th 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 7th 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.

“DIRECTORS” AS MINISTERS

In a church tradition or denomination that carefully proscribes who may be a “minister,” “priest,” or “pastor,” persons that assist in worship, sacraments, church schools and other vital roles may not have a title of office that would neatly fit in the Ministerial Exception.  Often the question with such employees is whether their role is sufficiently vital to religious services and advancement of the needs of the faith to be considered ministerial even if their title is not clearly related.

In Menard v Archdiocese of Boston, Slip Op. (Mass. 2020), the trial court considered the plaintiff’s employment contract and an article the Plaintiff wrote for the church newsletter in which the Plaintiff described the duties incumbent upon Plaintiff’s position.  The consideration led to dismissal of the lawsuit pursuant to the Ministerial Exception.  The appellate court affirmed.  The Plaintiff was a Director of Music Ministries and could not be a priest or pastor.  But, her duties as Director of Music “presuppose a significant knowledge of her faith’s musical canon, and the ability to transmit that knowledge and “convey[] the Church’s message.””  The decision was based on the newest United States Supreme Court pronouncement in Our Lady of Guadalupe Sch. v Morrissey-Berru, U.S. Supreme Ct., Nos. 19-267 & 19-348, slip op. at 18 (July 8, 2020) which taught that “what matters, at bottom, is what an employee does.”

In cases of this type an employment contract is an invaluable documentation of the religious and secular duties of the employee.  In this case, because the employee was of some longevity, the employee wrote a church newsletter article that dovetailed with the contract and explained the duties in the Plaintiff’s own words.  Church newsletters are often invaluable sources of this type of information.  Oddly, many churches do not keep file copies (paper or digital).

A PICTURE IS WORTH A LAWSUIT

Even in light of recent Supreme Court decisions regarding federal employment claims against churches and parachurch organizations, some common law tort claims remain actionable against churches.  We have reported many times regarding defamation claims.  Defamation that is solely internal in the organization or in the web of organizations that make up a denominational authority is not likely to remain actionable long if it is at all.  Defamation between different organizations in the same denomination, or to outsiders, may or may not be the foundation of viable claims.

In McRaney v North American Mission Board, Southern Baptist Convention, Slip Op. (5th Cir. 2020), the United States Court of Appeals for the 5th Circuit reversed the dismissal entered by the trial court.  The Court of Appeals held that the dismissal was premature because the Complaint, the first document in a federal civil lawsuit, stated a civil claim and did not on its face appear to raise ecclesiastical issues.  Also, the case was not brought as an employment claim.  The only theories of recovery espoused were for intentional interference with business relationships, defamation, and intentional infliction of emotional distress.  The Plaintiff was formerly employed as the Executive Director of the General Mission Board of Maryland / Delaware.  The Plaintiff alleged the Defendant made false statements about him that caused him to be fired from his position, caused him to be “uninvited” to speak at a large mission symposium, and posted a picture of him at the Defendant’s offices to malign him.  On remand, discovery may still lead to dismissal of the case by motion for summary judgment, in which more may be considered than merely the contents up to the four corners of the Complaint.

The lesson to be learned is that there are litigation risks other than wrongful termination and federal employment law claims.  While defamation cases are rarely successful, churches communicating negative information about a former employee to a prospective new employer should do so only to protect the public good rather than merely because an employee fell out of favor or left hard feelings.

THE NOT RELIGIOUS ENOUGH TEST IS NO MORE

As reported herein, the United States Court of Appeals for the 9th Circuit, in Biel v St. James School and in Morrissey-Berru v Our Lady of Guadalupe School, held that elementary school teachers in Catholic schools were permitted to assert federal employment law claims.  The 9th Circuit held that the elementary church schoolteachers were not “religious leaders” and their employment duties were not religious enough to require Courts to abstain from such claims pursuant to the Ministerial Exception of the First Amendment.  That the teachers taught fundamental religious materials required by the church school did not matter in the 9th Circuit because that was not sufficiently religious or ministerial.

In Our Lady of Guadalupe School v Morrissey-Beru consolidated with St. James School v Biel, Slip. Op. (US 2020), the United States Supreme Court reversed the 9th Circuit in both cases.  Furthering the formulation of the Ministerial Exception as applied to a church school teacher in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012), the Supreme Court held that the religious education and instruction duties of the teachers, the very reason for the existence of church schools, was at the core of the mission of the schools.  Such duties were “vital religious duties.”  Judicial review of church supervision of those duties would entangle the courts in ecclesiastical disputes “the First Amendment does not tolerate.”  The duties of the teachers “implicated the fundamental purpose of the exception.”  Because determining whether a person “is a co-religionist” would be difficult if not impossible in a secular court, that the teacher may not be a member of the religion about which the school was formed would not be determinative.  While seemingly called for by the Concurrence, deference to the religious employer’s “good faith claims that a certain employee’s position is “ministerial” may be a factor but probably is not the stand alone test.  The Dissenters interpreted the opinion of the majority as boiling the Ministerial Exception down to a single inquiry:  whether the church “thinks its employees play an important religious role.”  Likewise, it may be a factor but does not appear to be the standalone test adopted by the majority opinion.

Church schools should in their contracts, employee handbooks and other school governance documents make it explicit that teachers are expected to engage in religious training of students.  Such descriptions should be sufficiently detailed to convey the core mission of the school is met by the religious instructional program to be administered by the teachers but not so overstated that litigant former employees will point to it as proof they were not intended to be considered in its scope.  Employees that do not have religious instructional duties or similar duties may still be eligible to assert federal employment law claims.  Overreaching attempts to include such employees in the Ministerial Exception’s reach will likely not be successful.  However, all church school employees can be subjected to a Code of Conduct employment provision that requires life style and other compliance with religious tenants of the school.  Such provisions should be acknowledge in writing upon hiring by the employees.