The United States Supreme Court on or about May 11, 2020 heard argument in two cases appealed from the United States Court of Appeals from the 9th Circuit (the west coast states) in which two particular school teachers at church schools were held not to be sufficiently ministerial to be barred from making federal law based employment claims. The scope of the Ministerial Exception to employment law claims has been litigated since the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171 (2012). In that case, the Supreme Court held that the teacher in question was also a minister which triggered the Ministerial Exception and barred her claims.
In Gregory Tucker v Faith Bible Chapel, Order on Motion for Summary Judgment (D. Colo, 2020) the federal trial court converted a Motion to Dismiss to a Motion for Summary Judgment because the motion appended three documents, two of which were the employment contract and the teacher handbook. The employment contract appointed the Plaintiff as “Chaplain” in addition to duties as a science teacher. The Plaintiff was allowed to chose among three proposed titles for the new duty, among which was “Chaplain,” but chose “Director of Student Life.” The Plaintiff claimed that title sounded the least religious as the motive for selecting it. The teacher handbook required teaching from a “Christian worldview” but Plaintiff claimed the school did not define it or provide training in a required curriculum. The Plaintiff claimed that the lack of specificity in theological content, and the explicit prohibition of promoting a single “Christian perspective over another” meant that the position was not religious and therefore, not ministerial. The trial court overruled the Motion for Summary Judgment and the case will proceed to discovery, and possibly trial.
Church schools of non-denominational churches have difficulty in secular courts because the idea of the Bible as the sole source of religious perspective is not understood as “specific” but is pejoratively assumed to be amorphous. Church schools of non-denominational churches that do not substantively document their religious perspective will be deemed to be without one. In the age of the internet and “distance learning,” this seems especially difficult to the secular court to understand. Just as teachers in public schools are required to have “professional development” time, so too should teachers in church schools. The difference is the “development training” of a church school teacher should include a substantive and identifiable religious component. For a position like “Director of Student Life,” it should also include substantive religious counseling training. While the local church owning a church school may not have the resources to provide it all inhouse, there are numerous Bible colleges that would provide the resource.
Efforts to diversity church membership range from specialized outreach programs to development of professionally staffed inclusivity positions. Typically, the latter is limited to the denominational level because only the largest local churches have the resources for permanent staff positions.
In Worford v Virginia Conference of the United Methodist Church, Memorandum Opinion (ED Va. 2019), the Director of Inclusivity was terminated. She sued alleging race discrimination and retaliation. The trial court overruled the motion to dismiss submitted by the denomination. The denomination alleged that in order to decide the case the court would be forced to delve into church governance in contravention of the Ecclesiastical Abstention Doctrine. But, the opinion did not cite or quote any governance documents. At the motion to dismiss stage, which is in the early pleading stage of a case, the trial court determined that the employment issues raised would not require interpretation of religious doctrine or decision-making. Also, the trial court held that the record was insufficient for the trial court to determine whether the Director of Inclusivity was by title, substance of the title, the employee’s use of the title, or the functions performed ministerial. Thus, the trial court deferred a ruling on whether the Ministerial Exception barred further proceedings until the conclusion of discovery and development of a more complete record. The Plaintiff denied that as Director of Inclusivity there was any requirement to lead a congregation, teach religious doctrine and that the position was solely an administrative logistical position.
In such cases, the church or denomination should submit to the court written employment agreements, employment rules and procedures handbooks, and signed acknowledgements containing admissions of the religious nature of the staff position. Of course, before any new staff position is created or anyone hired, such documents should be amended to explicate the religious nature of the position. Such terms as “evangelism” and “evangelist” were the titles of the original Directors of Inclusivity. Indeed, churches and denominations should engage counsel to assist with drafting such documents. The purpose of such documents in the secular world is the same as in the religious, to protect the employer and place the employee on notice.
We have reported on opinions of the United States Courts of Appeals that focus on the struggle to determine when a religious organization employee is sufficiently religious that it makes the employer immune from an employment claim brought pursuant to a federal discrimination statute. These cases struggle with whether an employee is sufficiently ministerial in their duties to trigger the Ministerial Exception. From the United States Supreme Court came a four element test to apply to determine the applicability of the Ministerial Exception: “formal title;” the “substance of the title;” the employee’s “use of the title;” and the employee’s “religious functions.” Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 565 US 171, 188-89 (2012). The struggle comes about when an employer can prove only one or two of the tests apply. The ultimate implication is that some religious employers may have to compromise or abandon their beliefs to avoid interference from the federal discrimination laws.
In Hutson v Concord Christian School, Memorandum Opinion (ED Tenn. 2019), the federal trial court granted summary judgment to the school that terminated an elementary school teacher because she was pregnant out of wed lock. Setting aside religious or moral arguments, the question the Court answered was whether an elementary school teacher’s position was sufficiently religious to trigger the Ministerial Exception and shield the religious employer behind the First Amendment. The first factor, title, weighed against the school because “elementary school teacher” was not religious. But, because the school’s policies, handbook, and many other documents confirmed the elementary school teacher was supposed to perform, too, as an evangelist, religion teacher, and be “called” to the role, the second element, “substance” weighed in favor of the school. The third element, use of the title by the Plaintiff, weighed against the school because there was no evidence Plaintiff considered or called herself a “minister.” The fourth element, called the “key factor” by the Court, weighed in favor of the school because the teacher’s function included leading devotions and teaching Bible lessons. The Court concluded that the second and fourth elements were sufficient to trigger the Ministerial Exception and required dismissal of the federal employment discrimination claims.
The title of this article was taken from the case reported above but may have originated with the religious organization in Conlon v InterVarsity Christian Fellowship, 777 F3d 829, 832 (6th Cir. 2015), which the Court also relied upon. The lesson from these cases may be that the title should match the religious function in school documents and actual practice. Also, the case reported confirms that the handbook, the employment documents, and especially any morals clause, and there should be a morals clause, should track the title and the religious job function. Also, if the termination is factually based on conduct that cannot be tolerated in an elementary school but that occurred with no involvement of the school or its pupils, then a severance and release might be cheaper than litigating to prove a point.
Defamation and its cousin, false light invasion of privacy, were much more viable common law claims a century ago. A century ago damage to reputation was taken far more seriously than in the modern age. Defamation is hard to prove and harder to use as a theory of recovery for damages because causation of damages is difficult to prove. False light invasion of privacy has been flatly rejected as a common law cause of action in several states or simply folded into defamation law. In church litigation, defamation and false light claims, where permitted, do not fare well.
In Byrd v Deveaux, Memorandum Opinion (D. Maryland, 2019), the United States District Court granted summary judgment holding the pastor’s false light claim against the denomination and its bishop was barred by the Ecclesiastical Abstention Doctrine and the Ministerial Exception. The denomination publicly reported the pastor was placed on administrative leave, and recommended for “non-reappointment,” because alleged commingling of church funds and a loan default that persisted for eight years placed the church property in jeopardy. The pastor argued there was an exception to the applicability of the First Amendment Doctrines when the false light was based on “fraud or collusion.” However, pastor’s authority for the argument, the United States Supreme Court case, Gonzalez v Roman Catholic Archbishop of Manila, 280 US 1 (1929), which recognized the exception in dicta, was rejected as a holding in subsequent decisions. Serbian E. Orthodox Diocese for U. S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 714 (1976).
Church discipline, both local and denominational, remains outside the preview of secular civil courts because of the First Amendment shield with regard to pastors. While the First Amendment doctrines are more permeable as to non-members of the church or denomination, no such penetration seems likely as to pastors or members. While generally employment matters should be treated confidentially, as current events unfold, that luxury may no longer be available as to employee pastors. The positions of trust that pastors typically earn may simply lead to a level of transparency church organizations require to maintain their own credibility in the face of the failure of a pastor.