The First Amendment of the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” That would seem clear. Indeed, in the seminal case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012), federal employment law was held inapplicable to church employees if 1) the employee was “held out as a minister;” 2) the employee had the title of “minister” (or its equivalent); 3) the employee accepted a “formal call to religious service;” and 4) the employee had “a role in conveying the Church’s message and carrying out its mission.” Id., at 191-192. The foregoing formula was not to be applied mechanistically and, indeed, not every element had to be satisfied.
In Su v Stephen Wise Temple, Slip Op. (CA App., 2019) the appellate court reversed a summary judgment granted against the Labor Commissioner of California and remanded the matter for further proceedings. The Jewish temple employed forty teachers in its pre-school. The teachers need not be Jewish but were required to introduce children to “Jewish life, religious ritual and Judaic observance.” But, even though the teachers were “transmitting Jewish religion and practice to the next generation,” they were not “sufficiently central to a religious institution’s mission.” Therefore, the Ministerial Exception did not apply. The opinion does not state whether the pre-school teachers were complainants. However, the only issue raised by the Labor Commissioner in the case was whether the teachers were provided with “rest breaks, uninterrupted meal breaks, and overtime pay.”
The California court seemed oblivious to the reality that determining the pre-school teachers were not “sufficiently central to a religious institution’s mission” required an inherently ecclesiastical inquiry. The California appellant court was oblivious to the reality that it invaded First Amendment prohibited territory by holding that the “significant secular component” outweighed the religious instruction is listed at length. Moreover, and most offensive to the First Amendment, the California appellate court admitted “the pre-school is part of the Temple’s religious and educational mission, and it fulfills a religious obligation of the Temple. The [pre-school] exists to instill and foster a positive sense of Jewish identity and to develop in children favorable attitudes towards the values and practices of Judaism.” Thus, the California appellate court unleashed the California Labor Commissioner to make certain the pre-school teachers had the correct breaks, meal time, and over time pay to accomplish their admittedly religious mission.
The Ministerial Exception, generally a rule that prohibits court review of religious organization employment decisions, would seem simple enough. But, lawsuits to survive must escape its pull. Generally, the former employee plaintiff will contend they are not a minister. This claim is often made in the face of common sense when even slight common sense would demand the person must have been a type of minister. Sometimes religious organizations muddy the water by claiming every employee is a minister, confusing their doctrinal view that every member is a minister even though some people are paid to do non-ministry work because no one else is called to donate the service.
In Yin v Columbia International University, Slip Op. (D SC 2018), the Plaintiff was terminated due to a financial downturn. The Plaintiff was otherwise not criticized for her service as a professor. The Plaintiff sued claiming violation of federal employment laws. The Defendant was a religious school and its primary mission was training ministers. As a faculty member, the Plaintiff signed an undertaking to be responsible for certain religious duties. The Plaintiff, for example, started classes with prayer and the Plaintiff led chapel services. But, the Plaintiff alleged the Plaintiff’s faculty position was “academic” and not religious. The Plaintiff alleged the job title was secular and not religious. Based on the substance of the Plaintiff’s job, including religious duties and the Plaintiff’s obligation to prepare students for ministry, the Court held the case was “extremely close” but granted summary judgment on the Ministerial Exception and dismissed the case with prejudice.
Religious organizations defending employment cases should not do so complacently even if the outcome seems predestined. The Ministerial Exception is typically classified as an affirmative defense, and affirmative defenses often present a factual question from the perspective of the Court hearing the facts for the first time even if from the perspective of the religious organization everything seems obvious. The religious organization’s governing documents, employment manuals, and employee specific documentation should be organized and presented at the earliest opportunity. Otherwise, the lawsuit might escape from the tidal forces of the Ministerial Exception and keep the case alive through many thousands of dollars in legal fees.
Parachurch organizations, religious entities that are not churches or non-profit entities that are directly or indirectly owned and controlled by churches, struggle at times with whether the Ministerial Exception or the Ecclesiastical Abstention Doctrine, both arising from the First Amendment, apply to various legal questions. This struggle is most pronounced when dealing with state law tort, employment or contract questions. It is less pronounced with regard to federal law claims, or at least, it should be.
In Aguillard v Louisiana College, Ruling, Slip Op. (WD La., Alexandria Div., 2018) the federal trial court granted summary judgment against the Plaintiff to terminate the Plaintiff’s federal employment law claims based on the religious organization exemption found in Title VII, the Civil Rights Act of 1964, at 42 USC §2000e-2(e)(2). The opinion’s analysis is instructive of the analysis probably needed in those circuits that have not considered the religious organization exemption. In this case, the Plaintiff claimed he was terminated for his religious beliefs by the religious school. Thus, Plaintiff’s claims for disability discrimination, religious belief discrimination, and age discrimination were all summarily dismissed. It should be noted termination was not simply by executive fiat but was also confirmed through the school’s own tenure required due process procedures.
Such cases will probably be determined in the first instance by the clarity with which the religious identity or purpose of the parachurch organization is enshrined in the founding documents and perpetuated in the policy and procedure manuals of the entity. Such religious identity should not be merely assumed because the organization has been around for a long time. Documents lacking clarity of identification should be amended.
While this website is focused on church litigation, churches are not monolithic organizations. Churches historically created much of our civilization by founding schools and hospitals and continuing to do so. While many of these schools and hospitals remain under the ownership and direct control of churches or denominations, economics and the changing focus of a particular church or denomination has caused some severances.
In Penn v New York Methodist Hospital, Slip Op. (2nd Cir. 2018), the United States Court of Appeals for the 2nd Circuit affirmed a trial court summary judgment that held that the hospital founded by a church was still sufficiently religious that one of its full time employee Duty Chaplains was subject to the Ministerial Exception Doctrine and could not pursue claims of employment discrimination. There was no dispute that the Duty Chaplain had no duties other than religious as did the three or four other Duty Chaplains. They conducted religious observances and provided religious counseling. The analysis of the majority opinion was interesting because the issue was whether the formerly Methodist hospital retained sufficient vestigial religious characteristics to cause issue entanglements implicating Ecclesiastical Abstention Doctrine concerns. The dissent was interesting for the same reason.
The majority noted the twenty-four hour religious pastoral care provided by the pastoral care department in which Plaintiff was employed and the Employee Handbook emphasized the Methodist history of the hospital and described the pastoral care provided as an “ecumenical program.” Three of the seventeen governing board members were Methodist ministers even though no one could recall how they were appointed, i.e., whether it was a formal requirement or fortuitous. The President of the Board had to be selected with the “advice and counsel” of the local Methodist Bishop. The bylaws required that every board meeting begin in prayer. Every year, the hospital provided free health screenings to a dozen Methodist ministers and their spouses. While formal ordination was not required, every chaplain was considered “clergy.” The supervisor of the pastoral care department was the “Staff Chaplain” and had to have a Master’s Degree in Divinity or equivalent. However, the chaplains did not have to be Methodists. Indeed, one was a Rabbi, one was Catholic, and one was Greek Orthodox even though Plaintiff was a Methodist. Two other critical items are only mentioned in passing: the Plaintiff admitted he was “primarily responsible for ministry” and the Plaintiff was terminated after an another employee complained of “sexually inappropriate comments.”
While the majority thought the hospital still had sufficient religious accoutrements to warrant application of the Ministerial Exception Doctrine, the dissent did not. The dissent thought the hospital’s “minimal vestiges of religious lineage” resulted in setting “the bar too low.” The dissent noted there was no evidence the Methodist Church retained influence over the hospital’s day to day operations or long-term planning. The dissent also did not find that “Methodist religious doctrine” guided either the hospital or the hospital’s pastoral care program. Of course, it seems to this author that both of those reasons required the learned judge to make ecclesiastical judgments about what constituted Methodist doctrine. The dissent did not explain how retaining at least some say over who would serve as board President in the bishopric was not influence. However, the point of the dissent that should not be missed is that compared to other para-church organizations the dissent thought this hospital was insufficiently religious to qualify for an exemption from federal employment discrimination laws.
The lesson for para-church organizations from this case if that if the religious heritage is to be preserved it should be preserved in the organizations governing documents, including the Employee Handbook, and that the organization’s religious perspective should be well and easily identifiable.