Category: church employment

LAY MEMBER IMMUNITY – SORT OF

The Ecclesiastical Abstention Doctrine and the Ministerial Exception limit secular court intrusion into church employment decisions regarding ministers and other employees. While it is generally the limitations on employment law protection of “other employees” about which the courts struggle, it is possible for these doctrines to limit or preclude other claims. For example, can a pastor fired by a church or denomination sue, rather than the church or denomination, a member of their church regarding their role in the loss of employment?

In Father Jim Tracy v O’Bell, et al, Slip Op. (Pa. Supp. 2021) an intermediate appellate court affirmed summary judgment in favor of the lay members sued by the former pastor. The former pastor alleged that alleged tortious interference with his employment contract was the goal of the defamation by the lay member defendants. The Plaintiff alleged the defendants defamed him with the intent of causing the church to terminate his employment. Plaintiff claimed he found a large amount of cash in a file cabinet and the lay members claimed the Plaintiff was not financially responsible with church funds. The church terminated the Plaintiff. But, the Plaintiff did not sue the church, but rather sued the lay members the Plaintiff claimed defamed him in their alleged plot to secure his termination. The trial court was affirmed because the alleged defamatory claims of the lay members, and the allegedly connected firing, were intertwined with the ecclesiastical decision to terminate a clergyman. The termination decision was made by the church and court inquiry into that decision to determine if it was, indeed, based on the defamation would entangle the court in ecclesiastical governance.

While in the reported case the Ecclesiastical Abstention Doctrine, in order to keep the court out of ecclesiastical church governance, had the effect of immunizing lay members the assumption should not be made that it will do so frequently or reliably. Lay members, even in congregational rather than hierarchical churches, may not be able to defame each other with impunity even if as to the employment of a pastor they might. Likewise, churches and denominations that do not manage such internal disputes, even if litigation would be ineffectual, may find that there are other consequences and ripple effects, such as to offering plates.

ELEMENTARY SCHOOL SPIRITUAL LEADERS

The ongoing argument that church school teachers, staff, and administrators are not “ministers” and that employment decisions by churches regarding them are not shielded by the Ecclesiastical Abstention Doctrine or its subsidiary the Ministerial Exception is not merely a matter of opinion. It is, or should be, a matter of factual inquiry based on the record the parties have made. The church and school governing documents, the employment contracts, if any, and the employment handbooks generally will decide the issue because those documents generally existed prior to the dispute, were ratified by the employee upon employment, or ratified because the employee remained employed after amended documents were adopted.

In Zaleuke v Archdiocese of St. Louis, Memorandum and Order (ED Mo. ED, 2021) the federal trial court granted summary judgment to the church. The Plaintiff resigned from the position of elementary church school principal when Plaintiff learned her contract would not be renewed for a third year. The Plaintiff sued alleging sex discrimination. The trial court’s opinion recited the church governing documents, employment contract, and other documents in detail. For example, the employment application required Plaintiff to answer certain questions described as: “(1) “describe your belief in God and your relationship with Jesus Christ”; (2) “describe your relationship to and involvement in the Catholic Church in general and your parish in particular”; (3) “define the unique mission of Catholic schools”; (4) “describe … the elements of a school’s Catholic identity”; (5) “describe your background in religious education” and “[h]ow this contribute[s] to your work as a Principal/administrator”; and (6) “describe the role for [a r]eligious leader of the school community.”” The employment contract expressly stated the position was intended to further the mission of the church. A “mission statement” to which the employee was required to adhere was much like a secular morals clause. The position also required meetings with religious personnel of the church and ongoing religious education. The trial court held that the record demonstrated the Plaintiff’s position was required to perform “important religious functions,” “religious instruction,” church mission participation, and academic requirements directly related to “elucidating or teaching the tenets of the faith.”

Churches that run schools should grab this court opinion and make sure their own documents serve as well in documenting the true nature of the position. The goal is not merely the elimination of secular court employment case intrusion but obtaining the clear commitment of church school employees at every level.

TOO MANY BYLAWS

Generally, the cases reported have demonstrated that churches that do not have governing documents, which are often called “bylaws” or other names, risk loss of control of their property, their assets, and their money. Of course, churches that have governing documents, whether they call them “bylaws” or something else, must maintain the documents so that the governing documents match the governing beliefs and governance techniques used by each generation of church leadership.

In Nation Ford Baptist Church v Davis, 2021-NCCOA-528 (NC App. 2021), in an employment dispute between the “Senior Pastor” and the “Elders,” even though the Defendant church employee admitted the matter was an “employment dispute,” the trial court did not dismiss the case. The appellate court affirmed the trial court’s refusal to dismiss and remanded for further proceedings. The trial court declined to dismiss because the “Senior Pastor” had a written employment agreement and the church had bylaws setting forth requirements for termination. But, the church was initially unable to prove which bylaws controlled: the original bylaws enacted by the church or the bylaws claimed to be in effect at the time of the termination. If the termination was not consistent with the set of bylaws to be held in effect in further proceedings, then the “Senior Pastor” might be entitled to damages. One of the sets of bylaws required termination by a congregational vote of 75% of the “members” and it was alleged no such congregational vote was taken.

The procedure to adopt new or amended bylaws should include meeting agendas, minutes reflecting action on agenda items, and a certification by the correctly identified official secretary of the church corporation, or other officer appropriate under law, that the bylaws are in effect. Thus certified, the certified bylaws should be in the church corporate records as recognized and recorded in the minutes of the corporation. This process should be repeatedly annually or bi-annually. The dispute over which documents are the governing documents may require only application of Neutral Principles of Law. If so, the Ministerial Exception nor the Ecclesiastical Abstention Doctrine are implicated in most courts.

DRAMA TEACHERS AND EMPLOYMENT LAW

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.