Several federal courts have held that the principal of a church school is sufficiently ministerial such that federal employment claims cannot be enforced. The Ministerial Exception, a subset or cousin to the Ecclesiastical Abstention Doctrine, may not even allow enforcement of a written employment contract in some circumstances. An involuntary employment termination, a firing, cannot be reviewed by any court if the Ministerial Exception is found to be applicable. Application of the Ministerial Exception must be on a case by case basis so a church would be well served by counsel to prepare to prove its applicability even if the firing was for cause.
In Nolen v Diocese of Birmingham, Slip Op. (ND Ala ND 2017), the principal of the Catholic “grammar school” was hired on a one year written employment contract that specified firing for cause. The principal made a novice’s mistake and ignored obvious potential for conflict by hiring a new secretary that was married to a parish financial advisory board member. Meanwhile, the school enrollment was declining and as a result school finances were declining. To solve the problem, the principal marketed the school to Hispanic students and found scholarship sources for as many as possible. The principal claimed the new secretary spoke disparagingly about these students and the secretary was required to resign. Predictably, the financial advisory board became hostile to the principal. The principal was “required” to sign a letter of resignation by the priest in charge, however, because of inflated mileage travel claims, checks payable to the principal for reimbursement signed by the principal after instruction not to issue checks in that manner, and because she failed the state certification examination and did not retake the test. It was unclear whether the principal was known to be uncertified at the time of hiring. The principal claimed she was fired because she tried to prevent hostility to Hispanic students and scholarship students. The Court granted summary judgment and dismissed the case but never reached the firing for cause arguments or evidence nor the issue of resignation versus adverse employment action.
Indeed, in reality, the Court never got beyond the Diocesan School Mission Statement and the procedure manual for Catholic Schools, both made applicable by the written one year employment contract. Because this decision was at the Summary Judgment stage rather than the pleading stage, the evidentiary record was probably fully developed by discovery or at least the opportunity for discovery. Counsel wisely fought for the soul of the Court by launching all of the evidence that supported the employment action and reducing or depriving the Plaintiff of sympathy.
Numerous lessons are in this opinion. The lack of state certification may not have mattered in a private school, it would not in some states, but if it did, timely certification probably should have been an added term in the employment contract. The Court did not indicate whether any written policy prohibited someone with check signing authority to self pay. Indeed, the Court did not explain how the principal had check signing authority or whether the checks required two signatures. The church office and the priest in charge were probably nearby and check signing authority should have been limited or non-existent. Hiring the family of a board member should probably be prohibited as nepotism. Only in tiny and very small churches would it be unavoidable. In a Roman Catholic church no one typically has any actual authority except the priest in charge but that does not make nepotism a good idea.
One of the interesting questions in church law is whether an employment contract with a pastor overrides the Ministerial Exception. The Ministerial Exception is the label for the First Amendment doctrine which excludes some church employment issues from governance by secular law or secular courts. Indeed, the uncertainty in recent years has been to determine the other church jobs that were outside the scope of court and regulatory jurisdiction. Of course, ministers, priests and pastors were outside the scope. Employment contracts raise the uncertainty of whether they remain outside the scope in whole or in part.
In Rev. Lee v Sixth Mount Zion Baptist Church, Slip Op., 2017 WL 3508140 (WD Penn. 2017) the federal court carefully traced the contours of a written employment agreement with a senior pastor to determine whether the employment relationship or parts of it had been carried outside of the Ministerial Exception. The opinion also contained most of the salient terms of the employment agreement verbatim which might also assist practitioners. The question the court answered was whether the employment contract terminated the applicability of the Ministerial Exception. The Court held that the Ministerial Exception had, indeed, been preserved in its applicability to termination of the pastor by the employment contract. Of course, that reserved for a future case whether some other contract might not.
The language in the employment contract that preserved the Ministerial Exception was a catch all reserve clause that merely stated termination could be “by law” and on “other grounds.” The employment contract also specified “for cause” termination grounds and the church was claiming that the “for cause” grounds had been triggered. The church put on evidence of declining attendance and declining finances, both of which the church labeled as “spiritual stewardship” and “financial stewardship” in the employment contract. The Court held that these grounds for termination were ecclesiastical and triggered the Ministerial Exception because to decide them would lead to “excessive entanglement” in church affairs. For example, the Court would have to decide whether the cause of declining finances was due to mismanagement or declining giving reflecting a loss of confidence in the pastor either of which could be ecclesiastic.
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.
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.
The rise of para-church organizations, no doubt necessary to the support of the church or its ministry are also the inspiration for limitations on the reach of the Ecclesiastical Abstention Doctrine (1st Amendment prohibition of entanglements between secular courts and church doctrine) and the Ministerial Exception (to federal and state employment laws). Para-church organizations include bible colleges, foundations, and corporations set up to control secular property, and sometimes even church buildings. Whether positions on the boards that govern the para-church organization are subject to either the Ecclesiastical Abstention Doctrine or the Ministerial Exception can only be determined after careful inquiries. Secular or ecclesiastic characterization will likely depend on organizational documents of the para-church organization that describe the goals and work as well as the job descriptions of the leadership. Just because board members must be clergy of the denomination does not automatically trigger either legal doctrine.
Puri v Khalsa, Slip Op. (9th Cir. 2017) is a case in which the 9th Circuit merely reversed a trial court’s decision to dismiss a case on the pleadings based on the 1st Amendment. Nevertheless, it took 33 pages for the Court to work through the issues, even though all that was before it were the pleadings. (Because of the high standards that Motions to Dismiss must meet, when a court does this, it usually is not an ultimate statement of the law. Nevertheless, this well reasoned opinion probably does cast a strong light on this issue.) Once the case is returned to the trial court, the case may follow a litigation track, may develop a more sophisticated factual record, may be tried to the bench or to a jury, and may return again to the appellate court.
The 9th Circuit was not moved by the fact that the board members had to be ministers of the denomination or religion served by the work of the para-church organization. The Court ordered Neutral Principles of Law applied by the trial court to determine the eligible board members for the para-church organizations (which all appear to have been corporations). One of the para-church organizations owned secular businesses.
There was an idea that surfaced many years ago that churches could set up a para-church corporation, transfer their property to it, and that would effectively make their property judgment proof. States with strong fraudulent transfer policies or laws might neutralize such arrangements. Also, such arrangements typically divorced the revenue stream from property ownership making the property unavailable as a credit source. Some encountered tax problems because the argument was made that the property was no longer owned by a church and therefore no longer exempt.
Para-church organizations that want to limit their work and property ownership to ecclesiastically recognizable activities, rather than risk that they are, indeed, secular and governed by civil law, need to carefully design their foundational documents and possibly amend them with the assistance of competent counsel. Many corporations set up using a form book, or worse a homemade document, are secular in design and not ecclesiastic in design, much to their surprise.