Category: church employment

SALARY DISPUTES AND THE MINISTERIAL EXCEPTION

The Ministerial Exception generally precludes secular court review of employment decisions. The label itself arose from the short hand name affixed to such an exception found in some federal employment discrimination statutes. More loosely used in its First Amendment context, the doctrine generally puts hiring and firing decisions regarding pastors out of the reach of litigation. But, the Ministerial Exception rarely prohibits litigation regarding employment and benefit contract rights.

In Flakes v New Mt. Vernon Missionary Baptist Church, Slip Op. (Mich. App. 2019), the decision of the trial court granting summary judgment to the church was reversed. While the case originated as a lawsuit seeking reinstatement to the pulpit, the Plaintiff realized that was not legally available, abandoned reinstatement, and asserted only a salary dispute. The trial court, for whatever reasons, did not differentiate between reinstatement and a salary dispute and dismissed the case. The appellate court, however, reversed so that the trial court could reconsider whether the salary dispute, a creature of contract, could be determined without inquiring in ecclesiastical considerations. While that outcome seemed to be obvious from the short opinion, the more interesting question was remanded to the trial court. It was alleged by the church that the pastor was engaged pursuant to a written independent contractor agreement. The minister alleged that a year later a congregational vote called him as a pastor and he served in the position until the congregation terminated him seven years later.

Whether the action of the congregation to call the pastor a year after the original engagement pursuant to an independent contractor agreement in fact imposed a new contract will be an interesting dispute. Apparently, a new employment contract was not entered into after the call of the congregation. The independent contractor agreement was silent, apparently, on whether a subsequent congregational vote had any impact. The church governing documents, such as bylaws, may resolve or further complicate the dispute. The argument that the independent contractor agreement could only be amended in writing may have been fulfilled if the congregational vote calling the pastor was memorialized in governing board minutes or a church bulletin.

SPIRITUAL INFORMATION SPECIALISTS

We have reported on opinions of the United States Courts of Appeals that focus on the struggle to determine when a religious organization employee is sufficiently religious that it makes the employer immune from an employment claim brought pursuant to a federal discrimination statute. These cases struggle with whether an employee is sufficiently ministerial in their duties to trigger the Ministerial Exception. From the United States Supreme Court came a four element test to apply to determine the applicability of the Ministerial Exception: “formal title;” the “substance of the title;” the employee’s “use of the title;” and the employee’s “religious functions.” Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 188-89 (2012). The struggle comes about when an employer can prove only one or two of the tests apply. The ultimate implication is that some religious employers may have to compromise or abandon their beliefs to avoid interference from the federal discrimination laws.

In Hutson v Concord Christian School, Memorandum Opinion (ED Tenn. 2019), the federal trial court granted summary judgment to the school that terminated an elementary school teacher because she was pregnant out of wed lock. Setting aside religious or moral arguments, the question the Court answered was whether an elementary school teacher’s position was sufficiently religious to trigger the Ministerial Exception and shield the religious employer behind the First Amendment. The first factor, title, weighed against the school because “elementary school teacher” was not religious. But, because the school’s policies, handbook, and many other documents confirmed the elementary school teacher was supposed to perform, too, as an evangelist, religion teacher, and be “called” to the role, the second element, “substance” weighed in favor of the school. The third element, use of the title by the Plaintiff, weighed against the school because there was no evidence Plaintiff considered or called herself a “minister.” The fourth element, called the “key factor” by the Court, weighed in favor of the school because the teacher’s function included leading devotions and teaching Bible lessons. The Court concluded that the second and fourth elements were sufficient to trigger the Ministerial Exception and required dismissal of the federal employment discrimination claims.

The title of this article was taken from the case reported above but may have originated with the religious organization in Conlon v InterVarsity Christian Fellowship, 777 F3d 829, 832 (6th Cir. 2015), which the Court also relied upon. The lesson from these cases may be that the title should match the religious function in school documents and actual practice. Also, the case reported confirms that the handbook, the employment documents, and especially any morals clause, and there should be a morals clause, should track the title and the religious job function. Also, if the termination is factually based on conduct that cannot be tolerated in an elementary school but that occurred with no involvement of the school or its pupils, then a severance and release might be cheaper than litigating to prove a point.

CHURCH DOCTRINE HIRING AND FIRING

There are as many different doctrinal approaches to gender and sexual orientation issues among church traditions, denominations, and doctrinal pronouncements as there are fall leaves. Further, among some groups, these doctrinal approaches are changing. The development of doctrine in these areas has created tremendous friction in some churches and denominations.

In Garrick v Moody Bible Institute, Memorandum Opinion & Order (ND ILL, ED, 2019) the federal trial court dismissed the faculty Plaintiff’s case, some parts with prejudice and other parts without prejudice which might allow an amendment of the Complaint. The Plaintiff claimed she was terminated as an instructor of communications (a speech teacher) by the defendant religious university after two years of employment because of her advocacy in favor of women serving as clergy members. Plaintiff admitted that the religious school supported a “complementarian doctrine” which precluded women from certain church leadership roles. Indeed, Plaintiff allegedly assisted a student to submit a complaint against Moody based on Title IX of the Education Amendments of 1972. Plaintiff alleged her actions in fostering the complaint resulted in “backlash” from other faculty members in a shared workroom. Plaintiff was placed on internal leave prior to termination and allegedly discussed it with other faculty members and students. Immediate dismissal followed. The case was dismissed because of the entanglement with religious doctrine admitted by Plaintiff in the issues raised by Plaintiff. The court allowed an amended complaint only as to Title VII employment discrimination claims not related to religious doctrine.

Employers like the defendant accomplished nothing by trying to soften an adverse employment action by use of reduced or back office duties except to prolong the organizational agonies and create further opportunities for conflict. This is especially true with a zealous advocate or zealous troublemaker. Take an adverse employment action or do not but do not engage in halfway measures. There are few industries in which “counseling out of the business” actually works. Religious organizations should make hiring decisions consistent with religious doctrine so that they need not make firing decisions based on it. New hires should sign a statement of doctrines, a morals clause, and a statement that their job has a role in implementing the religious doctrine – by example if nothing else.

FIRING THE ORGANIST 2nd Ed

We first reported the trial court’s summary judgment in May 2017 that held that the organist was sufficiently ministerial to preclude a federal employment law claim against a church because of the Ministerial Exception. Section 702 of the Civil Rights Act of 1964 expressly excludes employees charged with religious activities from the reach of the law. Likewise, the First Amendment Ecclesiastical Abstention Doctrine also precludes secular court intervention in church employment matters. The struggle has been to determine whether a plaintiff in a lawsuit is sufficiently ministerial or religiously educational in their job duties to trigger the Ministerial Exception. Since Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 US 171 (2012) was decided several different methods of implementing the factors developed by the Supreme Court have arisen.

In Sterlinski v Catholic Bishop of Chicago, Slip Op. (7th Cir. 2019), the federal appellate court affirmed the trial court’s grant of summary judgment. As we noted in May 2017, the Plaintiff was originally the Director of Music but in later years no longer had those duties. The church successfully argued in the trial court that as organist plaintiff still played a vital role in the worship services. The 7th Circuit uses a test it described as “whether the employee served a religious function.” Also, the 7th Circuit applied the test from the perspective of the religious employer. The question was not whether the employer was correct but rather whether the employer sincerely believed it. The 7th Circuit also rejected the 9th Circuit’s approach set forth in Biel v St. James School, 911 F3d 603 (9th Cir. 2019) (reported by us in December 2018 in the post entitled, The Not Religious Enough Test of the 9th Circuit). The 9th Circuit approach was that the plaintiff had to be “religious enough” in the opinion of the Court and did not consider the perspective of the employer. The 7th Circuit rejected the 9th Circuit’s formulation also because the 7th Circuit believed the 9th Circuit’s approach would lead trial courts to entanglement in doctrine and practice to determine whether the employee was “religious enough.”

As we noted in May 2017, part of the legal problem the church faced the church created by its piecemeal demotion of the organist from the position of Director of Music. There would have been no meaningful dispute about whether a Director of Music was ministerial in a church. Also, there did not seem to be a written job description or an employment agreement that set forth the ministerial or religious quality of the job. The trial court, in the case reported in this post, relied upon a denominational directive, the 87 page music ministry directive from the Council of Bishops, to indicate the religious imperatives that the organist was expected to implement. The lesson should be that in these disputes there may be many sources of church authority governing the activity in question which may cumulatively or independently define the employment role as religious and therefore ministerial.