Tag: church employment


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.


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.


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.


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.


While a court will typically refuse to reinstate a defrocked or fired pastor under the Ecclesiastical Abstention Doctrine or the “ministerial exception,” in most states a purely contract based dispute will be heard under neutral contract principles.  In most states, the contract will be enforced as written or legal defenses to contracts will be considered.

In Bigelow v Sassafras Grove Baptist Church, Slip Op. (NC App. 2016), the Pastor and the church entered into an employment contract that contained a disability provision.  In case it is not obvious, the contract did not require that the Pastor remain at his post to receive the disability benefits.  The disability benefit provided by the contract was that the church would pay salary and medical benefits if the Pastor became disabled during the twelve year term of the contract, which might turn out to be several years in this particular case if the contract was enforced.

The trial court dismissed the case under the aforementioned 1st Amendment doctrines.  The appellate court reversed the dismissal and sent the case back to the trial court for further proceedings, which would probably include discovery and trial until verdict or settlement.  The reversal was based on a thorough review of the Ecclesiastical Abstention Doctrine and the “ministerial exception,” and the conclusion that neutral contract law principles governed the dispute.

The contract was, in part, quoted in the court opinion.  The contract was clearly not drafted by a lawyer.  Drafting errors may have resulted in confusion about the terms agreed upon or the full extent of the promises exchanged, especially duration of the promises.  Further, the disability insurance policy in effect at the inception of the contract was no longer in force and it seems likely the church did not anticipate that the loss of that coverage might or might not expand the financial commitment.  The portion of the contract quoted did not specify which party had the obligation to keep the disability coverage in force.  If that was the Pastor’s duty, then the church might have a setoff to assert.

Employment contracts are generally enforceable between Pastors and churches as to financial terms, but not as to actual employment.  If the church removes the Pastor from that position, no court will intervene, even if the financial aspects of the contract are still enforceable.


In those states that recognize the employment at will doctrine, church employees have no greater rights than secular employees without an employment contract.  In other words, the employee can depart their employment at any time and the employer can terminate the employment at any time.  While in secular employment protected classes of employees might have certain legal protections from terminations based on their characteristics, such as race or ethnicity, even these protections do not apply to church employees that have religious duties.

In a legal proceeding involving the Pastor, an “administrative employee” of the church testified in court.  Other church leaders present heard the testimony and terminated the employee shortly thereafter.  The employee commenced a wrongful termination action alleging the termination violated public policy which, if it existed, protected the employee from termination based on court testimony.  In Heidorn v Chelten Church, Slip Op. (Pa. Super. Ct., 2016), the court affirmed dismissal of the case by the trial court because the court found no such public policy.  That the motive for termination might have been retaliation for testimony was not enough to inspire a new public policy.

The opinion does not provide details about the testimony of the fired church employee or the legal proceeding involving the Pastor.  Thus, it seemed that such details, no matter what they were, would not have caused the court to create such a public policy or to extend it so far as to abrogate the at will doctrine.  The at will doctrine is a general employment doctrine, i.e., not related only to churches, so this opinion might apply to most secular employers as well.

Can You Just Add “Minister” to the Contract?

In the United States Supreme Court case, Hosanna – Tabor Evangelical Lutheran Church and School v EEOC, 565 US___, (01/11/2011), with which everyone is now trying to bring their employment relationships into alignment, the teacher in question was classified as a “minister” because of her religious licensure and her religious teaching responsibilities.  As such, employment decisions could not be reviewed by the courts without violation of the First Amendment Ecclesiastical Abstention Doctrine.  Other religious organizations have had the idea based on the case that all of their employees, regardless of expertise, are also religious operatives and so described them in employment contracts and employment policy manuals.

Will it work?

So far, it generally has.  It probably will if the job, as described in the policy manual, includes religious education or other religious duties.  In the absence of a policy manual or job description, there may be other proof of the religious entanglement of even secular positions.  If the religious organization accepts government money there may be the need to trace whether the federal programs in which the employees serves is secular, and funded by government, or secular but related to the religious objectives.  Absent a financial entanglement with government, most courts will likely allow church schools to enforce the tenants of their religious sponsors and probably most other types of organizations, too.

Another valid question would be, is it necessary?  Most courts will see the reality rather than look only to the form.  For now, until a few more court decisions come down the pipeline, the better practice is to revise employment agreements and policy manuals of church schools to make clear the religious nature of the duties of the teachers.

Another method of deflecting employment claims will be the “morality clause” inserted in employment contracts or policy manuals.  Most denominations have a central document that sets forth a clear statement of the religious morality expected or sought, too.  Evangelical churches that do not have a denominational base document usually have corporate bylaws or other constitutional documents upon which the church school or employment policy manual can be based to achieve the same result.