CLAIMS REGARDING OTHER EMPLOYMENT BY CLERGY

While it is abundantly clear that courts will not intervene in nearly all claims regarding employment of clergy, the question arises about whether the clergyman (or clergywoman) that loses employment with a secular employer because of the loss of clergy credentials. In that instance, is there a viable claim?

In Iwuchukwu v Archdiocese for the Military, Memorandum Opinion (D. DC, 2022), the Plaintiff was a clergyman but employed by a federal agency and terminated. The employment required the Plaintiff, serving as a chaplain, to have the credentials of clergy without which the employment was summarily terminated. The federal agency was not named as a Defendant. The denomination claimed it revoked the credentials based on an unresolved allegation of sexual misconduct at a prior employment a decade earlier. The Plaintiff submitted a polygraph examination report that seemed to confirm the Plaintiff’s denial of the allegation. Also, some years before this case, the Plaintiff filed a complaint against the federal agency with the Equal Employment Opportunity Commission (“EEOC”) alleging a hostile work environment. Plaintiff claimed revocation of his clergy credentials was in retaliation and had nothing to do with the clergy credentials. In effect, Plaintiff was arguing his claims were reviewable under Neutral Principles of Law. The federal trial court dismissed the case as barred by the Ecclesiastical Abstention Doctrine because religious organizations could unilaterally decide who would speak for them as clergy. The court also noted the federal employment discrimination statute exempted religious organization employers.

Because many clergymen and clergywomen work in alternative employments with parachurch organizations or even secular entities, the facts presented in the reported case may be less unique than might be expected. For example, many hospitals have chaplains. Clergy that are accused of sexual misconduct are not well served by relying on denominations or parachurch organizations to clear them. Innocent accused clergy have no choice but to immediately seek a judicial declaration of innocence if reputable counsel believes there is a reasonable chance for a favorable outcome, or expect the loss of their former career.

HAIR CUT JOB QUALIFICATIONS

Sometimes you cannot get the lyrics out of your head:

Gimme a head with hair
Long, beautiful hair
Shining, gleaming
Streaming, flaxen, waxen

Give me down to there (Hair!)
Shoulder length or longer hair (Hair!)
Here baby, there mama
Everywhere daddy daddy

Hair (Hair! Hair! Hair! Hair! Hair! Hair!)
Grow it, show it
Long as I can grow it
My hair

I let it fly in the breeze
And get caught in the trees
Give a home for the fleas in my hair
A home for fleas
A hive for the buzzin’ bees (buzzin’ beeeeeeeesssss)
A nest for birds
There ain’t no words
For the beauty, the splendor, the wonder
Of my…

Hair (Hair! Hair! Hair! Hair! Hair! Hair!)
Grow it, show it
Long as I can grow it
My hair

Hair lyrics © Emi U Catalog Inc., Channel H Productions, 1969, sung by the Cowsills (the “bubblegum pop” band of the 1960s that may have inspired the television show The Partridge Family).

In Markowski v BYU, Memorandum Decision and Order Granting Summary Judgment (D. Utah, 2022), the Plaintiff was employed as a trainer of full-time missionaries. Her specialty was use of social media. The Defendant university’s dress code applied to employees and probably students. The Plaintiff cut her hair short. Six weeks later, Plaintiff was informed her hair cut was “not feminine enough” and “was too masculine.” There was a complaint about her eyebrows as well. Although Plaintiff indicated she would grow her hair out, she was fired. To qualify for her position, the Plaintiff had completed her own eighteen-month missionary assignment and the training required for the mission. She also had other required training. Her job required her to teach church doctrine using the parent church’s social media systems. Plaintiff claimed discrimination on the basis of sex because male employees were allowed to bleach their hair blond, disparate treatment, and “failing to fulfill traditional sex stereotypes.” The federal trial court granted summary judgment to the Defendant. The court held that Plaintiff’s position had a “vital role in advancing the religious mission” of the Defendant and the position was “explicitly religious in nature.” Thus, the Ministerial Exception barred the claim. The court relied upon Hosanna-Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 US 171 (2012). The court held the position performed “vital religious duties” and was barred. For this aspect of the Ministerial Exception inquiry the court relied on Our Lady of Guadalupe School v Morrissey-Berru, 140 S.Ct. 2049 (2020).

Explicit dress codes can be enforced on ministerial staff and nearly all employees. Most secular businesses and government offices can do so, too, so this should come as no surprise to even new and young employees. Most churches in the US appear to have abandoned all dress codes, at least during worship services, although less so for professional clergy in some denominations and traditions, but this should not mislead anyone to think that they are unenforceable in the denomination and or tradition that still recognizes the necessity of dress codes. The case reminded this author of a more innocent time when changing hair styles were the subject of controversy and song lyrics.

DON’T IGNORE THE MAIL

City, county, state and federal taxing authorities still use the mail to notify of tax obligations. While these notices are not always correct, and even some correct ones may be challenged, simply ignoring them does not make them go away. Reciting mantra’s like, “they can’t tax a church,” or “I’ll just give them a call to fix it,” are often the first words spoken in a church legal or financial disaster.

In Wings as Eagles Deliverance Ministry v City of Detroit, Opinion and Order (USDC, ED Michigan 2022), the city imposed property taxes on property owned by the ministry. The Plaintiff received from the City notices of taxes owed in several consecutive years. Finally, the City sought and received a Judgment of Foreclosure and transferred ownership of the property to a subsequent owner. (The federal trial court opinion does not explain the tax collection system in detail. But, somehow, the property ownership was transferred without an auction for zero dollars, implying not even the taxes were collected, and leaving no Excess Proceeds for the prior owner to collect. But, a more detailed study of the property tax collection system of Michigan is beyond the scope of this report.) The federal court entered judgment for the City because the state level Judgment was final and precluded review by the federal trial court. (Apparently, the Plaintiff took no action against the state level Judgment, such as an appeal to the Michigan court system. However, that is not completely clear from the federal trial court’s opinion.) Constitutional claims based on the Establishment Clause were unavailable because they were not asserted against the state level Judgment.

The Plaintiff in the reported case should have taken definitive action as to the first notice of tax delinquency and every notice thereafter. The state level Judgment should have been appealed. The best method of dealing with such matters, if a diplomatic visit to the taxing authority does not result in a written withdrawal of the notice in a timely way, is to pay the delinquent tax under protest and then sue to recover the money paid.

CESSATION OF CHURCH ARBITRATION CLAUSES

Few churches use arbitration clauses in membership agreements, or even have formal membership agreements. In the private business sector, an arbitration agreement remains in effect in perpetuity regarding claims arising during the tenure of the contract between the parties. Events after the termination or expiration of the contract would not be subject to most arbitration provisions in most contracts. Efforts to bootstrap an arbitration clause to events arising after contract termination are generally unsuccessful because the agreement to arbitrate terminated with the contract.

In Bixler v Superior Court, Slip Op. (Cal. App. 2022), the church Defendants moved for an order compelling arbitration of the Plaintiff’s court claims. The trial court refused to order arbitration because the claims allegedly arose after the Plaintiffs terminated their membership in the church. The plaintiffs claimed that the church engaged in stalking and other acts of defamation and vandalism to terrorize the Plaintiffs. The Plaintiffs alleged the church was attempting to silence the Plaintiffs to end their claims of sexual misconduct by other members. The appellate court affirmed and held that the Constitutional right of freedom of religion encompassed the right to leave a religion and otherwise extinguish church membership. Once membership was extinguished, the contract for religious services was terminated. The arbitration clause did not survive the termination of the contract. Further, the arbitration clause while potentially enforceable in perpetuity as to events during the membership of the members, was not enforceable as to events after termination of the contract by termination of the church membership. The case was remanded for further proceedings in court.

Churches may wish to use arbitration agreements with their own service providers or with persons to whom they provide services, such as day care, schools and other parachurch activities. But, events arising after the termination of the relationship will not be subject to the arbitration provision.