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.
In June 2017 we reported the decision of the trial court to grant summary judgment in Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017). The United States Court of Appeals for the 7th Circuit has affirmed. In Grussgott v Milwaukee Jewish Day School, Inc., Slip Op. (7th Cir. 2018), the appellate court held as have others that there is no precise “formula” or set of elements that determine whether an employee is sufficiently “ministerial” to trigger the Ministerial Exception. The Plaintiff was an elementary school teacher whose job was not to teach reading, writing and arithmetic, but rather Hebrew. The Plaintiff taught Hebrew from an integrated curriculum which included religious instruction as a part of the language instruction (or language as part of the religious instruction). Also, the Plaintiff admitted teaching about Jewish Holidays, weekly Torah Readings, and participated even if she did not teach other religious rites. It was not dispositive that Plaintiff claimed she only taught historical and cultural facts and not religion. The school documented that it was intended that Plaintiff’s role contribute to the “school’s Jewish mission.”
Rather than adopt a formulaic test or set of elements, the 7th Circuit adopted what it called the “totality of circumstances” test. Of course, the totality would include many elements. Thus, in this case, Plaintiff’s role as a teacher of the faith to the next generation “outweighed” other considerations.
The lesson for church schools and para-church organizations generally is to link the job with the religious mission. This should be done in employee handbooks, policy manuals, and governing documents. It would not hurt if the new employee signed an acknowledgment of the religious mission of the new employer and also acknowledged the employee’s important role in that mission. It might not be especially specific but it would make ignorance of the mission and the expectation of participation in the mission an untenable claim.
The search for theories of recovery that evade the scope of the Ministerial Exception and the Ecclesiastical Abstention Doctrine is ongoing. The theories that seem to offer some hope to aggrieved plaintiffs and to survive motions to dismiss, occasionally, are defamation and interference with contractual relations. However, projecting forward into the future, defamation will almost never yield an economically viable plaintiff’s claim (enough to carry litigation expenses and counsel fees while producing a recovery sufficient to make the risk worthwhile). Also, again projecting, few pastors and only a few denominational leaders will have outside contracts sufficient or provable upon which to base a claim. Nevertheless, as will be noted below, such theories may only survive premised on a faulty appreciation of what constitutes a “church.”
In McRaney v North American Mission Board of the Southern Baptist Convention, Inc., Slip Op., (ND Miss., 2018), the former Executive Director of the non-party General Mission Board of the Baptist Convention for Maryland was terminated. The Plaintiff claimed the termination resulted from defamation by the American Mission Board of the Southern Baptist Convention. The Court held that they were “separate and autonomous” because both were self-governing, i.e., had their own governing boards. However, the former was a “state convention” of the Southern Baptist Convention and the latter’s board was selected at annual meetings of the Southern Baptist Convention. Indeed, these two “separate and autonomous” entities had eight jointly funded staff positions which Plaintiff supervised. The joint employees were engaged through a “partnership agreement” between the entities. When the partnership agreement came up for renewal, the Plaintiff declined it. That position either caused or resulted from a rift which eventually also led to the termination of Plaintiff. Plaintiff alleged the termination resulted from a threat of the “autonomous” American Mission Board to pull funding if Plaintiff was not terminated. The Plaintiff also claimed that the American Mission Board tried to cancel Plaintiff’s speaking engagements with a “mission symposium” and the Florida Baptist Convention Pastor’s Conference. The Plaintiff claimed that the American Mission Board posted his photograph in the reception area and labeled it in a disparaging manner causing emotional distress. The Court overruled a motion to dismiss, which means the case will proceed into discovery and possibly other dispositive motions, or even trial, before resolution. The Court held the defamation, interference with the speaking engagements and the inducement of termination, which the Court had to assume were true for purposes of the motion, could be decided without interference with ecclesiastical decision-making and that the American Mission Board was not the actual employer so the Ministerial Exception did not apply.
Like all interlocutory decisions, the eventual final decision could result in the opposite result. But, the premise of this decision, that a denomination can be carved up like a holiday turkey in a tort lawsuit, would seem to invite error. While evangelical denominations are often not strictly hierarchical, the components are not fully “autonomous” but rather “connectional.” The Court did not review the governing documents (and may not have been presented the governing documents at this early stage) in the opinion but even so noted that the board of the American Mission Board was interlocked with the Southern Baptist Convention and that the Plaintiff’s former employer was a “state convention.” Thus, none of the alleged defamation was allegedly “published,” i.e., sent outside the confines of the church. The contracts allegedly interrupted were all intra-church relationships. The Court appears to have decided to engage in resolving an intra-church employment dispute brought by an employee the Court held was probably covered by the Ministerial Exception. Nevertheless, the case is moving forward on a defamation theory and a contractual interference theory and if one court will agree to hear more, others might also.
Para-church organizations, like a school owned by a church, that take federal funds may not be permitted as a condition of receiving the federal funds to post religious materials, offer religious education, or directly associate with clergy and church staff. We have posted about such cases before. Another disadvantage to taking federal money is that such a school will likely have employees that are considered secular and not religious (their personal beliefs or memberships notwithstanding). As a result, there might be no First Amendment shield for employment claims.
In Mosaic United Methodist Church v Maureen Hammond, et al., Slip Op. (Ky. App., 2018), the director of the school for twenty years did not recover from the passing of her husband allegedly resulting in absences and other signs of depression. Eventually, after a student was injured, she was terminated. Her termination was allegedly because of dereliction leading to safety concerns. The Plaintiff, however, claimed the reason for termination was pretextual and brought an employment disability discrimination suit. Her supervisor was the pastor of the church. A jury entered a verdict in her favor and the court entered a judgment for attorney fees, too. The school was operated under a separate policy and procedure manual. The alleged absences and other failures were not documented and did not result in disciplinary review prior to termination. The church tried to raise an ecclesiastical abstention doctrine defense but it initially did so in a one sentence motion and did not raise the issue again until two and a half years of discovery was completed.
Churches that found para-church organizations like schools that evolve into federal funding dependents should be transferred to another non-profit corporation or separately incorporated. Another possibility might be to form a trust to own the school and merely allow the church or its leadership to serve as trustee. An out right sale of the school to another entity on marginally favorable terms might be advisable. At the least, the pastor should not be supervisor; pastors are spiritual leaders and not secular employers by training or inclination. The church board might fill the role, but the other alternatives are better. Otherwise, the church will have the exposure of a secular non-church employer and possibly an invitee of children, but will have the income stream of a church, which is not usually enough to cover such exposures. Insurance when it is available will be necessary. However, although a capacity crunch is only a distant memory, affordable insurance is not always available. If a para-church organization must be operated as a separate “secular” entity, maybe it should be one.