In order to determine if federal employment discrimination statutes apply to the employee of a para-church organization, a court will look to the descriptions of the employment both sides tender into evidence. On a Motion to Dismiss at the beginning of a case, this may be a very limited inquiry. Typically, motions to dismiss look only to the Plaintiff’s allegations in the Complaint or Petition and to any documents attached. On a Motion for Summary Judgment filed after discovery the range of admissible facts and exhibits may be quite broader.
In Lishu Yin v Columbia International University, Order and Opinion, (D. SC – Columbia, 2017), the Plaintiff attached an employment contract to the Complaint and made certain allegations about her employment role. The Court overruled the Motion to Dismiss. The Court determined that the description of the Plaintiff’s job in the employment contract did not establish that Plaintiff was a minister such that the case barred pursuant to the First Amendment’s Ministerial Exception. The employment contract described the job as “associate professor” and “faculty of the ministry.” The Plaintiff self-described her role as a full time resident faculty member in the “Masters of Teaching English as a Foreign Language” program. The Court held that these descriptions were not sufficient to persuade that Plaintiff was a “minister” triggering the Ministerial Exception.
The employment handbook of the institution and the employment contract cannot alone trigger the Ministerial Exception if they do not describe the ministry the jobholder is to perform. Further, the description should reflect the age or maturity level of the students, not simply be overly general boilerplate, and the handbook and contract should dovetail by referring to each other’s latest version, even if the version is not stated.
This review of church law has now been ongoing long enough to occasionally note developments in individual cases. In the post titled The Finger in the Dike, July 6, 2017, the Supreme Court of Michigan’s opinion in Winkler v Marist Fathers of Detroit, Inc., Slip Op. (Mich. 2017), was summarized. In that case, the student applicant to the church high school asserted she was denied admission due to dyslexia. The defendant church school claimed the admission was denied because the student’s academic record did not meet the admissions requirements and that the disability was unknown to the church school at the time the admission decision was made.
The Supreme Court revised its own prior pronouncements that the Ecclesiastical Abstention Doctrine was jurisdictional and indicated it was not jurisdictional. If a dispute could be decided on neutral principles that did not require an inquiry into ecclesiastical decisions, then the dispute could be resolved by a Michigan court according to the Michigan high court. As we noted when we summarized the decision, the smaller and weaker the Ecclesiastical Abstention Doctrine is defined the more likely it becomes that a court, even a well meaning one, will simply ignore ecclesiastical sensibilities. Another risk is that churches will be required to comply with laws intended to govern for-profit businesses and local governmental subdivisions, even though churches have a more fragile financial base. Thus, the Michigan Supreme Court reversed the intermediate appellate court decision and ordered it to consider the arguments it had not reached. The applicability of the Ecclesiastical Abstention Doctrine was left for the trial court to determine.
In Winkler v Marist Fathers of Detroit, Inc., Slip. Op. (Mich. App., September 21, 2017), the Court of Appeals ruled that Michigan laws requiring schools not to discriminate on the basis of disability applied to church schools, too. The law allowed church schools to discriminate on religious grounds, i.e., exclude a student that was not an adherent to the beliefs of the church school but not based on disability. Thus, the case was remanded to the trial court to determine whether there was any ecclesiastical issue barring consideration of the dispute and whether the school based its admission decision on the alleged disability of the Plaintiff.
Another implication that might arise is the financial burden on the church school. If the trial court decides there is no ecclesiastical issue it could also decide the only issue is whether the admission decision was discriminatorily based on disability. To avoid such an issue in the future, or because it is enjoined or otherwise prohibited from making admission decisions based on academic performance for fear that lurking within is an undisclosed disability, the church school might also be forced to admit an academically challenged student and then might be forced to allocate accommodation resources (e.g., lower performance expectations, tutors, learning disability professionals). The taxpayers have been unwilling in most places to fund these accommodations in public schools and public budgets have only been able to pay lip service to these needs. As a result, public school systems struggle to meet these requirements and usually fail. Church schools might get the opportunity to fail as well because donated money may be no more plentiful than public money.
The Ministerial Exception when applicable bars enforcement of most state and federal employment laws against church employers and bars employment claims by most church employees. Church employees are almost always engaged in religious duties in parallel with non-religious duties. Para-church organizations, however, by their hybrid nature force the Courts to inquire more deeply and with some skepticism because the further from the actual church the organization is the murkier the application of the exception probably will be. A church school is a para-church organization if it is a separate corporate or legal entity which for financial and accounting reasons most are.
In Fratello v Archdiocese of New York, 863 F3d 190 (2nd Cir., 2017), the federal appellate court had to decide whether a “lay principal” of a church high school was a “minister” triggering the exception. The Plaintiff’s contract was not renewed for a fifth year as “lay principal.” The Court opinion did not specify the reason for non-renewal. The Plaintiff’s employment contract listed Plaintiff’s job title as “Lay Principal.” But, the courts looked at the actual duties described and performed. Religious instruction by the employee of the students was the primary factor. No formal ordination was required. The Court found that the “lay principal” was delegated religious duties by the local church pastor responsible for the school to the archdiocese. Finding the employee responsible for religious instruction of students triggered the exception and the case was dismissed which the appellate court affirmed.
One lesson from this opinion was that the Court explicitly stated there was no presumption that the principal of a church school was a minister triggering the exception. Counsel with such a case for a church school must convince the church school or its sponsor to search out the record of religious entanglements with the job of the former employee. For example, in Fratello, affidavits or written statements by other school personnel confirmed the Plaintiff’s involvement in religious instruction from the school intercom broadcast of a prayer or other religious message to the actual supervision of religious instruction teachers and classes. There was likely little or no written record of the former and maybe not of the latter.
While the Ecclesiastical Abstention Doctrine and the Ministerial Exception are both clearly understood with regard to churches and denominational organizations, the question whether and how far those doctrines radiate away from churches to para-church organizations seems perennial and persistent. For example, is a Bible College, seminary, or similar training school for ministers, pastors, priests and other clergy out of the reach of civil courts? If yes, just how far outside of the reach of civil courts are they? Some courts seem to be intent on using a microscope to study the boundary between the inside of these doctrines and their outer perimeters. But, not so Ohio.
In John Doe v Pontifical College Josephinum, Slip Op. (Ohio App. 2017), Mr. Doe was a year from graduating with a Masters in Theology from a school that trained students for the Roman Catholic priesthood. Mr. Doe was dismissed from the school for sexual conduct and his dismissal was the subject of a posted notice on the campus. The dismissal was part of the school’s disciplinary process.
Mr. Doe’s lawsuit was dismissed because the court held the claims of Mr. Doe were inextricably intertwined in the disciplinary process which the court held was shielded under the Ecclesiastical Abstention Doctrine. While that decision was not “news,” Mr. Doe claimed the school breached its contract with him as set forth in the school policies and handbooks regarding access to his records and violated federal educational privacy law by posting the notice. He wanted to use his records in a canon law appeal. The court dismissed these claims, too, because the court in order to hear these claims could not avoid reviewing the disciplinary process to determine if the notice arose from the ecclesiastically driven disciplinary process. Mr. Doe demanded money damages alleging the school was unjustly enriched by being allowed to keep his tuition and fees but the court dismissed the claim because in order to determine whether there was unjust enrichment would require inquiry into the disciplinary decision’s ecclesiastical validity.