Church employees that run afoul of basic moral tenets of church employers are often terminated. Whether this is good church policy or not depends on the situation and depends on the alternatives available. Unfortunately, sometimes it is a financial question because some members may not want their offerings used to deal with the consequences of sin in others who fail to hide the sin.
In Kelley v Decatur Baptist Church, Memorandum and Order (ND Ala., NE Div. 2018), the federal district court did not dismiss the Plaintiff’s case because the Plaintiff alleged she was terminated because she was pregnant in violation of Title VII. She also alleged she was a “maintenance” and child daycare employee. The church alleged the pregnancy was out of wed lock and that the Plaintiff “sowed discord” among the daycare employees, neither reason being governed by Title VII. The church also asserted the first reason for termination was driven by beliefs protected by the Ecclesiastical Abstention Doctrine and the Ministerial Exception Doctrine because the Plaintiff was a “minister.” The case was not dismissed because the Court had to assume as true the allegations in the Complaint at this stage of the proceedings and that at best there was a factual dispute that could not be resolved at this stage. The case will proceed into discovery and possibly other proceedings.
There might not have been a factual dispute if as a new employee the Plaintiff had acknowledged by signing a document describing her position and its duties as ministerial or if there had been an employee handbook similarly acknowledged that contained similar language. Such an employee handbook might have contained a morals clause that expressly listed pregnancy out of wed lock, for the father and the mother, as disqualifying criteria for working with the children entrusted to the church. The troubling aspects of the situation may have been reduced if the church had engaged and paid a license professional counselor to counsel the Plaintiff to reduce or end the “discord” among child care workers, especially if that effort failed, and to help her make the adjustment to motherhood. The Scarlet “S” approach, if the church took that approach as the Court’s opinion seems to suggest, did not seem to work so well.
After the United States Supreme Court’s decision in Alamo Foundation v Secretary of Labor, 471 US 290 (1985) held that persons working for food, clothing and shelter were in fact employees because of their economic dependence entitled to the Minimum Wage, occasional confusion resulted about whether church volunteers were employees. Because church volunteers were not economically dependent, i.e., could walk away and never return, they were not employees entitled to payment.
In Acosta v Cathedral Buffet, Inc., Slip Op. (6th Circuit 2018), the United States Court of Appeals for the 6th Circuit was confronted with a Department of Labor (“DOL”) conclusion that because the church volunteers were spiritually or socially coerced by the pastor to serve as volunteers in the church owned restaurant that they were in fact employees entitled to the Minimum Wage. The DOL had to reach that conclusion because it could not realistically claim the church member volunteers were economically dependent for sustenance as had been the workers in the Alamo case. The 6th Circuit concluded that spiritual or social coercion, if it existed, was not envisioned by the Fair Labor Standards Act (“FLSA”). As a result, church volunteers could not pursuant to the FLSA be employees.
The Concurring Opinion questioned whether the DOL had fully contemplated the implications of inquiring into spiritual or social coercion if such existed. The Concurring Opinion noted such an inquiry would require an inquiry into the religious imperatives for the volunteers contrary to the Ecclesiastical Abstention Doctrine of the First Amendment. Music worship leaders that must hold together church choirs and bands week after week forever can attest to the necessity of the spiritual guilt trip. But, such persuasion, if it is coercive, is not recognized as a prerequisite to a conclusion a worker is an employee rather than a volunteer. (However, the Concurring Opinion did not ask the same question of the federal trial court.)
The Daily Oklahoman, the general circulation newspaper in central Oklahoma, noted the 6th Circuit’s decision in an op-ed piece in the April 23, 2018 edition. The Oklahoman concluded church volunteers could simply find another church. Somehow that did not occur to the DOL or the federal trial court which was reversed by the 6th Circuit.
When the author of this website began practicing, it was the habit to troop over to the courthouse every Friday to attend motion docket. The primary motion heard on those days was the demurrer. A demurrer was like a motion to dismiss but only raised the issue of sufficiency of the petition to state a cause of action. Defendants often filed them to obtain further time to investigate and answer, which meant they were often autonomically overruled. When they were actually heard, the court would read the petition or complaint and if the court thought enough facts were pled to state a cause of action overruled the demurrer. Most were overruled but occasionally the court would act as a gatekeeper and require filing of an amended petition. Demurrers were abolished soon thereafter as the state migrated to its clone of the Federal Rules of Civil Procedure. Nevertheless, vestigial remnants of such doctrines persist. The other rule still in effect in this state is that the order of the trial court will not contain reasons for the decision. To enter an order that “sets forth reasons” is called a “speaking journal entry.” An appellate court may disregard it. If the parties want findings of fact and conclusions of law, they have to request them in advance of any ruling. However, some appellate courts still have similar rules, for good reasons or out of habit.
In St. John Missionary Baptist Church v Flakes, Slip Op. (Tex. Civ. App. 2018), the congregational vote to terminate the pastor was not accepted by the church board members. The pastor and the board continued to handle the assets of the church, including taking out a mortgage of almost a million dollars and preparing to sell other assets. Some of the members filed suit to seek an injunction. The trial court granted a motion to dismiss and plea to the jurisdiction (Texas has not adopted a clone of the Federal Rules of Civil Procedure). The trial court’s order was a single sentence that referenced only one of the grounds put forward to support the motion. The appeal was directed at the only grounds set forth in the single sentence order. The appellate court, however, simply affirmed the trial court because there was no challenge to the other grounds for the motion to dismiss raised by the proponent of that motion even though it was also not mentioned by the trial court’s order. That other ground was the Ecclesiastical Abstention Doctrine. The appellate court ruled that without a challenge before it of an argument made by the movant in the trial court it was waived. One paragraph containing a legal authority or two would have placed it before the appellate court. The dissent was convinced that ordering additional briefing would not have been against the court’s rules.
Followers of Ecclesiastical Abstention Doctrine cases would immediately recognize that while a court because of the Ministerial Abstention Doctrine would not entertain an employment case, the exception might be if the employment case arose only from a violation of the church organizational documents in the process of hiring or termination. This seems especially true when the procedural issue arises from a congregation-controlled church. Of course, the other lesson is for counsel to brief all the arguments raised even if counsel believes some arguments deserve only cursory treatment.
Most of the preachers, pastors, ministers, and priests I have known cannot carry a tune in bucket. Thus, in modern church services, the rise of professional music worship leaders has been inexorable. Many music worship leaders have educational and performance credentials. However, are they clergy?
In Clover Hill Reformed Church v Township of Hillsborough, Slip Op. (NJ Tax Court 2018), the issue was whether the parsonage in which the congregation’s music worship leader resided was tax exempt. The statute allowed each church to have two exempt parsonages. The Clover Hill church had two and one was the residence of the music minister. But, the tax assessor denied the exemption holding the music minister was not an “officiating clergyman,” a statutory term. The court reversed the tax assessor and held the music minister was “officiating” within the meaning of the statute.
There was an oddity or two in the opinion. The music minister in question was not a member of the congregation or the denomination but was a member of another church group. In the southwest United States, the music minister’s “home” church would likely have been non-instrumental, and might be, too, on the eastern seaboard, but the music minister was serving in a church that allowed instrumental music. Indeed, the music minister was a pianist. As a non-member, however, he could not substitute for the lead pastor, which led the tax assessor to conclude the music minister was not “officiating clergy.”
The other oddity was that the court never actually stated the tax assessor was making an ecclesiastical determination about what constituted “officiating” and “clergy,” and thus probably running afoul of the First Amendment. But, that might have been the case.
The lesson for other churches is to make sure the written job description of ministers seeking residential tax exemption makes their ecclesiastical role clear.
In June 2017 we reported the decision of the trial court to grant summary judgment in Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017). The United States Court of Appeals for the 7th Circuit has affirmed. In Grussgott v Milwaukee Jewish Day School, Inc., Slip Op. (7th Cir. 2018), the appellate court held as have others that there is no precise “formula” or set of elements that determine whether an employee is sufficiently “ministerial” to trigger the Ministerial Exception. The Plaintiff was an elementary school teacher whose job was not to teach reading, writing and arithmetic, but rather Hebrew. The Plaintiff taught Hebrew from an integrated curriculum which included religious instruction as a part of the language instruction (or language as part of the religious instruction). Also, the Plaintiff admitted teaching about Jewish Holidays, weekly Torah Readings, and participated even if she did not teach other religious rites. It was not dispositive that Plaintiff claimed she only taught historical and cultural facts and not religion. The school documented that it was intended that Plaintiff’s role contribute to the “school’s Jewish mission.”
Rather than adopt a formulaic test or set of elements, the 7th Circuit adopted what it called the “totality of circumstances” test. Of course, the totality would include many elements. Thus, in this case, Plaintiff’s role as a teacher of the faith to the next generation “outweighed” other considerations.
The lesson for church schools and para-church organizations generally is to link the job with the religious mission. This should be done in employee handbooks, policy manuals, and governing documents. It would not hurt if the new employee signed an acknowledgment of the religious mission of the new employer and also acknowledged the employee’s important role in that mission. It might not be especially specific but it would make ignorance of the mission and the expectation of participation in the mission an untenable claim.
The search for theories of recovery that evade the scope of the Ministerial Exception and the Ecclesiastical Abstention Doctrine is ongoing. The theories that seem to offer some hope to aggrieved plaintiffs and to survive motions to dismiss, occasionally, are defamation and interference with contractual relations. However, projecting forward into the future, defamation will almost never yield an economically viable plaintiff’s claim (enough to carry litigation expenses and counsel fees while producing a recovery sufficient to make the risk worthwhile). Also, again projecting, few pastors and only a few denominational leaders will have outside contracts sufficient or provable upon which to base a claim. Nevertheless, as will be noted below, such theories may only survive premised on a faulty appreciation of what constitutes a “church.”
In McRaney v North American Mission Board of the Southern Baptist Convention, Inc., Slip Op., (ND Miss., 2018), the former Executive Director of the non-party General Mission Board of the Baptist Convention for Maryland was terminated. The Plaintiff claimed the termination resulted from defamation by the American Mission Board of the Southern Baptist Convention. The Court held that they were “separate and autonomous” because both were self-governing, i.e., had their own governing boards. However, the former was a “state convention” of the Southern Baptist Convention and the latter’s board was selected at annual meetings of the Southern Baptist Convention. Indeed, these two “separate and autonomous” entities had eight jointly funded staff positions which Plaintiff supervised. The joint employees were engaged through a “partnership agreement” between the entities. When the partnership agreement came up for renewal, the Plaintiff declined it. That position either caused or resulted from a rift which eventually also led to the termination of Plaintiff. Plaintiff alleged the termination resulted from a threat of the “autonomous” American Mission Board to pull funding if Plaintiff was not terminated. The Plaintiff also claimed that the American Mission Board tried to cancel Plaintiff’s speaking engagements with a “mission symposium” and the Florida Baptist Convention Pastor’s Conference. The Plaintiff claimed that the American Mission Board posted his photograph in the reception area and labeled it in a disparaging manner causing emotional distress. The Court overruled a motion to dismiss, which means the case will proceed into discovery and possibly other dispositive motions, or even trial, before resolution. The Court held the defamation, interference with the speaking engagements and the inducement of termination, which the Court had to assume were true for purposes of the motion, could be decided without interference with ecclesiastical decision-making and that the American Mission Board was not the actual employer so the Ministerial Exception did not apply.
Like all interlocutory decisions, the eventual final decision could result in the opposite result. But, the premise of this decision, that a denomination can be carved up like a holiday turkey in a tort lawsuit, would seem to invite error. While evangelical denominations are often not strictly hierarchical, the components are not fully “autonomous” but rather “connectional.” The Court did not review the governing documents (and may not have been presented the governing documents at this early stage) in the opinion but even so noted that the board of the American Mission Board was interlocked with the Southern Baptist Convention and that the Plaintiff’s former employer was a “state convention.” Thus, none of the alleged defamation was allegedly “published,” i.e., sent outside the confines of the church. The contracts allegedly interrupted were all intra-church relationships. The Court appears to have decided to engage in resolving an intra-church employment dispute brought by an employee the Court held was probably covered by the Ministerial Exception. Nevertheless, the case is moving forward on a defamation theory and a contractual interference theory and if one court will agree to hear more, others might also.
A well known teacher of church development and advanced training for pastors once told me that pastors, regardless of denomination, in the 21st century are required to be more than knowledgeable about the Scriptures or counseling but also must be adroit in finance, accounting, management, real estate, and technology. The observation seemed to reflect the seeming truth that the 20th century level of complexity may have allowed reliance on other church leaders that were not clergy, such as church boards or a diaconate, but that is rarely adequate now. Thus, church staff now include many people with a broad range of skill sets. The question becomes whether those types of positions are ecclesiastical, or “sufficiently” so, to qualify for the “immunity” conferred by the Ecclesiastical Abstention Doctrine.
In Kelly v St. Luke Community United Methodist, Slip Op. (Tex. Civ. App. 5th, 2018), the “Director of Operations” was terminated and escorted from the church property by the pastor and a police officer engaged for that purpose. The Director lodged employment claims and a defamation claim. The defamation claim was that the personnel action of the church was communicated to non-member third parties, such as the police officer, and non-members that may have attended meetings of the membership in which the personnel action was announced. The termination was alleged by the church not to have been performance based but rather the result of an internal reorganization of the church. The Director’s $82,000 annual position was allegedly scrapped and a new Director’s position redesigned in the reorganization was offered at $50,000. The Court recited claims from both sides that indicated that the relationship between the new senior pastor and the Director was possibly problematic and that the senior pastor might have considered the Director’s compensation too high for the position. The Court held the reorganization was an internal church management decision cloaked in the Ecclesiastical Abstention Doctrine and that it did not matter whether the Director’s position was “ministerial.” The defamation claim was found not to be based on a scintilla of evidence of publication, i.e., there was no proof of defamation at any meeting the public could attend and the engagement of the police officer did not rise to the level of publication. Thus, the appellate court generally affirmed the trial court decision (for this summary Texas law specifics have been omitted but would matter to a Texas practitioner).
Employment decisions that arise from actual internal reorganizations by the church will likely be viewed as ecclesiastical. Employment positions redesigned by changes in duties and compensation will likewise most likely be viewed as ecclesiastical decisions. Documentation of the decisions by minutes of meetings conducted consistently with the church governing documents that approve or implement either will likely be respected by a Court.