Category: church employment

SOCIAL WORK PROFESSORS ARE NOT MINISTERS – in some states

In determining whether an employee can bring an employment discrimination claim against a parachurch organization like a religious fine arts college, the fundamental question before a court is whether the employee is barred from such a claim by the Ministerial Exception doctrine. The Ministerial Exception doctrine at bed rock prevents a court from hearing an employment claim from “ministers” that represent in some way the faith during their employment. The Ministerial Exception was recognized by the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v EEOC, 565 US 171 (2012).

In Deweese-Boyd v Gordon College, Slip Op. (Mass. 2020), the trial court granted summary judgment to the liberal arts college but the appellate court reversed. Plaintiff was a faculty member that sought promotion to full professor. The promotion was denied for the stated reason that Plaintiff did not publish sufficiently. Plaintiff claimed the promotion was denied because the Plaintiff was an outspoken critic of the school’s policies regarding homosexuality and sex outside of marriage. The Plaintiff was a teacher in the social work program. The liberal arts college in its organizational document was committed to both religious instruction and secular instruction. However, the secular instruction was to be “integrally Christian.” The school’s mission statement required undergraduate students “have a profession of Christian faith.” The Faculty Handbook stated the “foundations of Gordon’s education philosophy are Christian doctrine” the source of which was “God’s eternal Word.” In order to apply for work at the college, the Plaintiff had to sign a Memorandum of Understanding in which they agreed to “abide by” the “Statement of Life and Conduct at Gordon College.” The Social Work Department Handbook like the Student Handbook disclosed the program was “informed by a Christian worldview.” Plaintiff alleged she never held herself out as a minister, had no religious duties, did not promote “evangelical Christianity,” was not authorized to speak authoritatively as to church doctrine, and performed no religious functions. The appellate court granted judgment against the college on the Ministerial Exception. On remand, the college would not be allowed to present the Ministerial Exception as a defense. On remand, the trial court will be forced to decide whether the Plaintiff abided by Memorandum of Understanding in which Plaintiff agreed to “abide by” the “Statement of Life and Conduct at Gordon College.” There may be a “morals clause” lurking therein that Plaintiff has yet to address, but if so, the clause was not in the opinion. Also, on remand, the question of sufficiency of publication may yet be litigated.

To encompass a teacher of a secular subject in the religious nature of the religious school in some states will require an explicit undertaking by the teacher signed at hiring to refrain from advocacy or teaching contrary to religious doctrine espoused by the school, violation of which is a ground for termination. Such clauses should be drafted by counsel and not by ministers or academics.

RELIGIOUS EXEMPTION STATUTORY IMMUNITY

In our last report, the question of whether the federal statutory protections of private employer retirement plans applied to para-church organizations was answered with a clear ruling that the para-church organization qualified under the statutory “religious exemption.” Within days, the same para-church organization, albeit in a different state and therefore a different federal court jurisdiction, qualified under yet another statutory “religious exemption.”

In Boydston v Mercy Hospital Ardmore, Inc., Opinion and Order (WD Okla., 2020), the Sisters of Mercy were yet again determined to qualify under the statutory “religious exemption” found in the Civil Rights Act of 1964 (aka “Title VII”), 42 USC §§2000e et seq., and in the Oklahoma Anti-Discrimination Act (“OADA”), 25 OS §§1101, et seq. The “religious discrimination and retaliation” claim was dismissed when the Court granted summary judgment on that basis. This Court’s analysis of the religious nature of the Defendant, possibly because of a more detailed factual record due to discovery limited to the religious exemption facts, was more detailed than the 8th Circuit case reported herein in the last post. The Court considered governance documents like bylaws and constitution, declarations by the denominational authority that the Defendant and its religious sponsor were religious entities, and sectarian religious symbols displayed in the medical facility. The Court also concluded that scientific and medical services provided for profit did not necessarily indicate a lack of religious control or motivation. The Court considered the number of nuns serving as members of the board of directors.

The less para-church organizations, regardless of function, are visibly affiliated with their religious roots, the more likely the same result will not be reached. The religious heritage of the para-church organization should be preserved to maintain “religious exemption” immunities no matter that the organization also has a secular identity. A sham will be discovered and should not be attempted.

ECCLESIASTICAL JOB DESCRIPTIONS

Church governance documents, employee handbooks, and employment contracts (when used) are often cloned from commercial counterparts or internet search finds. Original draftsmanship is often by non-lawyers that include religious doctrines or language but does not necessarily achieve the desired interpretation. Forms obtained from sources knowledgeable in one jurisdiction may not be effective in another.

In Rehfield v Diocese of Joliet, Slip Op. (ILL App. 2019), the church school principal was relieved of duty but her contracts were paid out. Nevertheless, the Plaintiff sued alleging retaliatory discharge and violation of the Illinois Whistleblower Act. The case was dismissed because the trial court held the principal’s job description clearly made her position sufficiently ecclesiastical to invoke the Ecclesiastical Abstention Doctrine. The job description required “a commitment to nurturing the [denominational] Identity of the school.” The job description also included, in pertinent part:

“providing an atmosphere in the school which is identifiably [denominational];

“developing and participating in ongoing programs to insure religious and professional growth of the staff;

“establishing an instructional program which includes religious education to meet the needs of students; [and]

“assisting teachers in achieving the goals of [denominational] education through supervision and classroom visitation.”

Church schools, churches, and parachurch organizations should review their employment agreements, handbooks and corporate bylaws annually to assure that their job descriptions are consistent with mission of the organization as well as the operational needs that may be similar to secular entities. Legal counsel should usually be engaged to assist. Overstatement of religious identity is not necessary and may, indeed, harm credibility in a dispute. After all, a janitorial employee may not have religious duties. Nevertheless, religious identity should be clearly stated in the job description of every professional employee.

LITIGATING INCLUSIVITY

Efforts to diversity church membership range from specialized outreach programs to development of professionally staffed inclusivity positions. Typically, the latter is limited to the denominational level because only the largest local churches have the resources for permanent staff positions.

In Worford v Virginia Conference of the United Methodist Church, Memorandum Opinion (ED Va. 2019), the Director of Inclusivity was terminated. She sued alleging race discrimination and retaliation. The trial court overruled the motion to dismiss submitted by the denomination. The denomination alleged that in order to decide the case the court would be forced to delve into church governance in contravention of the Ecclesiastical Abstention Doctrine. But, the opinion did not cite or quote any governance documents. At the motion to dismiss stage, which is in the early pleading stage of a case, the trial court determined that the employment issues raised would not require interpretation of religious doctrine or decision-making. Also, the trial court held that the record was insufficient for the trial court to determine whether the Director of Inclusivity was by title, substance of the title, the employee’s use of the title, or the functions performed ministerial. Thus, the trial court deferred a ruling on whether the Ministerial Exception barred further proceedings until the conclusion of discovery and development of a more complete record. The Plaintiff denied that as Director of Inclusivity there was any requirement to lead a congregation, teach religious doctrine and that the position was solely an administrative logistical position.

In such cases, the church or denomination should submit to the court written employment agreements, employment rules and procedures handbooks, and signed acknowledgements containing admissions of the religious nature of the staff position. Of course, before any new staff position is created or anyone hired, such documents should be amended to explicate the religious nature of the position. Such terms as “evangelism” and “evangelist” were the titles of the original Directors of Inclusivity. Indeed, churches and denominations should engage counsel to assist with drafting such documents. The purpose of such documents in the secular world is the same as in the religious, to protect the employer and place the employee on notice.