Tag: church employment

CHURCH EMPLOYMENT CONTRACTS

Generally, an employment contract in writing will be enforced even if one of the contracting parties is a church or para-church organization. “A church is always free to burden its activities voluntarily through contracts, and such contracts are fully enforceable in civil court.” Mis v Fairfield College Preparatory School, Slip. Op., 2017 WL 3174422 (Sup. Conn. 2017) (unpublished) (quoting).

The Mis opinion was a trial court order overruling a Motion to Dismiss. Thus, the case continued and the opinion was not the final word. Also, in Connecticut, like most states, obtaining a dismissal is difficult because the factual record has not been developed through any discovery and the Court has only the Plaintiff’s pleading before it which must generally be treated as true regardless of whether it is true unless it is implausible.

In Mis, the Plaintiff was a tenured teacher. The school employment handbook contained a morals clause. For tenured faculty, it also contained a right to a hearing on involuntary termination. The Plaintiff during a school fundraiser was alleged by a church leader to have engaged in immoral conduct, the nature of which was not specified in the Court’s opinion. Upon termination, the teacher demanded the hearing accorded in the handbook. The hearing was conducted and the teacher was exonerated. But, the church terminated the Plaintiff. The opinion of the Court does not explain the reason the church disregarded or overruled the hearing finding, but the Plaintiff sued for breach of contract. The Plaintiff alleged the handbook constituted an employment contract.

One lesson of this opinion might be that a church school should not provide a right to a hearing if the church school does not want to be bound by the outcome of the hearing. Also, the whole concept of “tenure” generally acts to create a contract that has to be limited by specific language in the handbook or contract that would fit tenure to the church school circumstance.

CHURCH SCHOOL MINISTERS

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.

STRATEGICALLY LIMITING LITIGATION

Lawyers have been guilty at times of being mechanistic in responding to the circumstances of a case as if all cases are the same. Fortunately, even though often overwhelmed by numerous cases and with too few staff attorneys to support judicial decisionmaking, judges sometimes are creatively able to reign in a lawsuit.

A good example of this is the preliminary court order in Stabler v Congregation Emanu-El, 2017 WL 3268201 (SD NY 2017). The Plaintiff alleged she was a victim of gender discrimination, age discrimination, and disability discrimination when at age 62, with 17 years of tenure, her job as Librarian ended. She claimed it ended due to unlawful discrimination even though it was characterized, she alleged, by the Defendant as elimination of her position. Unlike many such cases which are nothing more than a claim in search of a factual basis, the Plaintiff alleged sufficient supporting facts causing the Court to deny the Defendants’ Motions to Dismiss. But, rather than simply leave the parties to the usual discovery war, the Court limited discovery solely to the issue of whether the Ministerial Exception applied as pled by the Defendants. The lesson in litigation cost control might be obvious: the Plaintiff’s claim would likely rise or fall on that issue so handle it first and exclusively.

The Plaintiff’s own allegations of her performance “could indicate that she did act as a minister of the Congregation by furthering its mission.” Her claimed accomplishments indicated she had not merely been a custodian of tomes but rather “created a functioning Judaica library” in the impressive and possibly well-known church library. Plaintiff also served on committees with substantial influence. Librarians, so it appeared to have been alleged, of this caliber are not mere custodians but actually define and protect the legacy of the religious scholarship of the church or denomination. A future decision of this Court might become a classic example of when the job title (e.g., “librarian”) does not matter and the substantive nature of the position does in the application of the Ministerial Exception. Best, it might become so by an economically sound litigation limitation.

PAROCHIAL SCHOOLS AS RELIGIOUS ORGANIZATIONS

It would almost seem counterintuitive to suggest that a parochial school is not a religious organization.  The parochial school may be required to teach secular courses to comply with educational or even accreditation standards but unless there is no significant religious component in the curriculum it would seem unreasonable to view it as secular and not parochial.  Nevertheless, the issue seems to be on the table more than it should be.

In Miriam Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017), the Plaintiff attempted to persuade the federal court that an Americans with Disabilities Act claim applied to a parochial school.  The Court rejected the claim and entered summary judgment for the parochial school under the Ministerial Exception of the First Amendment.  The Court found that the plaintiff, as a teacher of Hebrew to second and third graders, was a ministerial employee.  While the plaintiff argued the Hebrew language was merely cultural and historical, the parochial school claimed it was religious in nature because of inherent symbolism and other attributes.  Also, the parochial school was able to prove the plaintiff taught Jewish religious rites to the elementary age school children.  The Court refused to put a stopwatch to these duties to determine which predominated in the schedule or the curriculum.  While the plaintiff was not ordained or certified by an ecclesiastical body, plaintiff admitted “teaching a great deal about Judaism and specifically that her role was closely linked to Defendant’s Jewish mission.”  That admission would seem to end the dispute as to whether her role was subject to the Ministerial Exception.

One interesting aside in the opinion was that the plaintiff asserted the school’s employment manual contained an anti-discrimination clause that expressly forbade religious discrimination.  In other words, the plaintiff claimed the Ministerial Exception had been overridden by the contractual nature of the manual.  The Court held:  “This single provision of the Manual cannot stem the tide of other evidence cited above demonstrating Defendant’s religiosity.  Defendant unquestionably qualifies as a Jewish religious organization.”

Lessons for parochial schools may include assuring that their own employment manual does not create an exception to the Ministerial Exception in their region by its wording.  It might also mean that it is good practice to carefully describe in the manual the overriding religious duties of the role of teacher, regardless of educational discipline or expertise, in the religious school so that there is no reasonable dispute about the nature of the position.  Assumptions do not play well as evidence.

INVOLUNTARY PASTOR RETIREMENT

Most pastors at some point in their lives begin planning retirement and grooming a successor or teaching leaders how to search for one.  Sometimes, however, someone else wants to impose retirement on the pastor.  In churches that have a high turnover among their pastors, this presents no problem because the revolving door solves the problem.  But, when a pastor has been on station a long time, and is not ready to step aside even though someone wants the pastor to do so, disputes arise.

In Gregorio v Hoover, Memorandum Opinion (DDC 2017), the denominational foundation loaned money to the local church and the denomination co-signed.  The church in a side contract agreed to pay the loan and the denomination agreed to hold legal title until the loan was repaid or refinanced.  Once the loan was retired, the denomination was expected to transfer legal title to the local church corporation.  The payments were timely made by the local church and the loan was retired.  The local church had no turnover in the position of pastor.  The denomination paid a small stipend to the pastor but his income was for the most part earned from the local church.  Two decades passed.  The denomination stopped paying the small stipend to the pastor.  Three years later the denomination advised the pastor of the local church he would retire because the denomination wanted to appoint “younger people” to take his place.  The pastor declined and suggested the denomination had no authority to appoint or terminate the pastor of that particular local church.  The denomination locked the pastor out.

The pastor withdrew the age discrimination claim probably because the pastor had not exhausted administrative remedies by filing a complaint with the federal EEOC and obtaining a right to sue letter.  However, because the pastor was the founding pastor of the local church, the local church’s corporate identity was and had always been owned and controlled by the pastor.  Thus, the pastor was able to keep his claim alive by suing the denomination for failing to transfer legal title after the loan was repaid.  The pastor was able to make a breach of contract claim also because the promised small stipend was two years in arrears after being paid for nearly two decades.  The Ministerial Exception does not override a contract damages claim, even if it might not allow a court to compel reinstatement.  Finally, the pastor asserted a claim against the denomination for unjust enrichment because the legal title was not transferred.

The success or failure of these particular claims lies in the future but there are lessons to learn from this order overruling the denomination’s motions to dismiss.  Denominations that have longstanding engagements with pastors should review the governing documents, including real estate titles, to make certain current denominational retirement policies are reflected and that a retirement strategy has been agreed upon.  A financial incentive to obtain agreement with updated governing documents will almost always be cheaper than litigation.  A contract will often be enforced at least as to money damages.  Contracts are enshrined in Article 1, Section 10 of the United States Constitution, co-equally with the First Amendment, which is why the Ministerial Exception or the Ecclesiastical Abstention Doctrine may not eclipse the contract.

FIRING THE ORGANIST

Federal employment laws do not apply to ministers pursuant to the Ministerial Exception Doctrine.  The label “Ministerial Exception Doctrine” refers to a branch of decisions arising under the First Amendment.  It is a subset of the Ecclesiastical Exception Doctrine.  The Ecclesiastical Exception Doctrine is an outgrowth from the Establishment Clause of the First Amendment.  The Ministerial Exception Doctrine generally prohibits a court from exercising jurisdiction over the employment of ministers (which includes, of course, pastors, priests, and many other titles).  The problem remaining is identifying the duties in churches that are equal to or equivalent to ministers in such a way as to trigger the Ministerial Exception Doctrine.

Many religious organizations have tried labeling their employees, all of them, as “ministers” or describing their jobs to include one or more typically ministerial duties.  The scope of the Ministerial Exception Doctrine was confirmed in Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 U.S. 171 (2012).  In Hosanna Tabor, the employee was a religious school teacher that had ministerial duties such as teaching religion classes.  But, the outer perimeter of the Ministerial Exception Doctrine remains fuzzy.

In Sterlinski v The Catholic Bishop of Chicago, Memorandum Opinion and Order (ND ILL. ED 2017), the Plaintiff was demoted from the position of Director of Music.  There was no viable claim based solely on the demotion because the position of Director of Music was held to be a ministerial position.  The position was found to be ministerial because the Director of Music was responsible for selecting the liturgical music, holding practice for the church choirs, church management activities and representing the church at denomination level music committee meetings.  Claims for the firing were dismissed.  The holding that a Director of Music was sufficiently ministerial to trigger the Doctrine was to be expected.

But, Plaintiff was demoted from the full time position of Director of Music with the aforementioned duties to a part-time position as organist.  As a part-time organist, Plaintiff did not seem based on the record before the Court to have discretion over worship or other religious activities.  Indeed, the Court mused that if the part-time organist merely played what was assigned by someone else, the position might no longer be sufficiently ministerial to trigger the Doctrine.  Because the record did not appear sufficiently developed to fully describe Plaintiff’s actual duties as part-time organist, the Court refused to dismiss the firing claims and ordered the parties to conduct discovery limited to the duties of the part-time organist.

One lesson to be derived is that in employment decisions, mercy will be punished.  If the Plaintiff had been fired while employed as Director of Music, no claim would have remained due to the Ministerial Exception Doctrine.  Another lesson is that churches should not expect the secular world to understand that public worship musicians and vocalists “set the stage” for preaching and are as important in worship.  That they do not is surprising because there are similar situations such as a professional baseball game that without an organist, at least during the “7th inning stretch” might be disquieting or like a rock concert without drums.  A final lesson is that the employment relationship rarely survives partial measures like a demotion from full time to part-time or a substantial reduction in authority.  A clean break is usually better.

FIRING THE PIANO PLAYER

It is hard to imagine a church that has a constitution and bylaws so primitive that they still require that termination of any and every church employee be the subject of a public congregational meeting and vote.  Not only would feelings run high in such a meeting, what might be said might make it impossible to salvage the church leadership or other employees.  While the senior most pastor employed by the church might need to be subjected to a congregational meeting and vote in some traditions and denominations, it is hard to imagine a valid purpose for subjecting subordinate ministry staff, support or clerical staff to such a chaotic process.

Nevertheless, in Lippard v Holleman, Slip Op. (NC App. 2017)(unpublished), the piano player with 34 years of tenure was presented for termination to the congregation for a vote.  But, after what is described as a full court press by the senior pastor, the congregation voted to retain the plaintiff.  Both leading up to this meeting and in the events afterward, the piano player alleged she and her husband, a deacon, were defamed by the senior pastor and music minister.  The case was procedurally tortured by the withdrawal of the piano player’s first lawyer, assignment to multiple judges, and the new lawyer filing an entirely new lawsuit.

The defendants alleged the Ecclesiastical Abstention Doctrine deprived the court of jurisdiction.  Of course, the problem was the justification put forward by the senior pastor for termination did not stay private, did not stay in the congregational meeting, and was alleged to have been untrue.  The appellate court reversed the trial court dismissal and sent the case back to the trial court to be heard as a defamation case.

One lesson is that the church should have had modern bylaws making employment issues private and the exclusive domain of the church board or the senior pastor.  (The choice between these two is usually made based on the tradition of the denomination or the church as to the authority to accord to each but in this discussion it will be assumed the selection of the church board, whatever it might be called, is the preference.)  Modern bylaws would have required the piano player’s husband to be excused from a board meeting about the employment of his wife.  The likelihood a pastor could survive in a congregation that would not support his recommendation to replace a staff member or clerical person, including a piano player, seems low.

Another lesson for pastors and church board members is that employment issues should be treated as confidential, especially in “at will” jurisdictions.  Indeed, one might argue the “civil procedure” set forth in Matthew 18:15 starts in private in its first stage, and only in the escalated stage does it go to the congregation or the public, and then only on disciplinary matters.  Employment, which is a financial relationship, should rarely, if ever, be treated as a disciplinary matter unless there is simply no choice.  Otherwise, spilling out into the street and the civil secular courts is more likely.