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.
In the present legal environment, church defense lawyers should almost always start with a well-crafted Motion to Dismiss. Indeed, exceptions to that general rule are difficult to conjure. The most prevalent might simply be that churches, as primarily volunteer organizations with little internal infrastructure, might simply be unable to engage counsel and gather the information needed for a Motion to Dismiss, and its higher standards, in the short time available after service of process on the church. In most federal courts and many state trial courts, discovery cannot commence until the case is at issue. Discovery is often the true cost center of litigation because it requires an immense investment of the time of a lawyer. A Motion to Dismiss often delays or limits discovery.
In Presbyterian Church USA v Hon. Brian Edwards, Slip Op. (Ky., 2018), the church was sued in the trial court by a terminated ministerial staff member. The termination allegedly arose from an unauthorized transfer of church funds to another entity incorporated without authorization from the church leadership. There was no allegation of defalcation. The church did not immediately respond to the lawsuit with a Motion to Dismiss on Ministerial Exception grounds. The former employee issued written discovery requests to the church. The trial court ordered the church to respond to the written discovery. The church appealed the decision through an extraordinary writ. The Court of Appeals of Kentucky and then Kentucky Supreme Court reversed the trial court and limited discovery only to the applicability of the Ministerial Exception.
The information needed for a Motion to Dismiss in most employment actions in which it is contemplated that the jurisdiction of the court will be challenged on First Amendment grounds, and especially the Ministerial Exception, will always include the governing documents of the church and church corporation. Job descriptions, employment contracts, if any, and employee manuals, if any, will follow in importance. Church files are notoriously hard to muster, especially if the insider now suing had access. Lastly, church bulletins, newsletters, websites, and internal communications may be needed to persuade that the former employee was, indeed, ministerial in function. Computers never forget and even deleted files can often be recovered.