Arguments For and Against Whether the Ministerial Exception Applies to Hostile Work Environment Claims

Synagogue (two story)

 

Previously, I blogged on a Seventh Circuit case discussing whether the ministerial exception applied to hostile work environment situation. In that panel decision, the Seventh Circuit said that the ministerial exception did not apply to situations involving a hostile work environment. You can see the complete discussion of that panel decision here. However, the Seventh Circuit voted to hear it en banc. On July 9, 2021, the Seventh Circuit sitting as a whole decided 7-3 that the panel got it wrong. That is, the ministerial exception does apply to hostile work environment situations. The person who wrote the majority opinion in the original panel decision dissented along with two others. Since we have already discussed this case at length, the blog  entry will be divided into the following categories and they are: why hostile work environment cases are subject to the ministerial exception (majority opinion); why hostile work environment cases are not subject to the ministerial exception (dissenting opinion); and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Why Hostile Work Environment Cases Are Subject to the Ministerial Exception (Majority Opinion)

 

1. The First Amendment says that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
2. From the establishment clause and the free exercise clause, the ministerial exception, which ensures that the authority to select and control who ministers to the faithful is the church’s alone because such authority is strictly ecclesiastical.
3. The First Amendment and the ministerial exception work together towards a common goal of protecting the employment rights of religious organizations.
4. When adjudicating disputes involving religious governance, avoidance rather than intervention should be the role of the courts.
5. Churches must have independence on matters of faith and doctrine and in closely linked matters of internal government.
6. Ministerial exception follows naturally from the church autonomy doctrine.
7. The ministerial exception put forth by the court in Hosanna-Tabor, discussed here, is a result of the church autonomy case law and notions of ecclesiastical independence and employment coming together.
8. In Our Lady of Guadalupe, here, the Court emphasized that the church’s independence in matter of faith and doctrine requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.
9. Without that power, a wayward minister’s preaching, teaching, and counseling could contradict the church’s tenets and lead the congregation away from the faith. The ministerial exception preserves a church’s independent authority in such matters.
10. From Hosanna-Tabor and Our Lady of Guadalupe, you get the following three principles. First, the rationale is not limited to the context of those cases. Second, the ministerial exception prevents the harms of civil intrusion and excessive entanglement with the church. Finally, the First Amendment gives special deference to the right of religious organizations, especially in matters of ministerial employment.
11. The ministerial exception is an affirmative defense to employment discrimination claims.
12. Adjudicating plaintiff’s allegations of a minister’s hostile work environment claim would not only undercut a religious organization’s constitutionally protected relationship with the ministers, but it would also cause civil intrusion into, and excessive entanglement with, the religious sphere.
13. Judicial involvement in this dispute departs from Hosanna-Tabor and Our Lady of Guadalupe and threatens the independence of religious organizations in a way the First Amendment does not allow.
14. A judgment against the church would legally recognize that it fostered a discriminatory employment atmosphere for one of its ministers. Thus, the church would have necessarily failed in its supervision and control, either directly or indirectly.
15. Members of a religious group put their faith in the hands of their ministers as the minister is the chief instrument for religious organization to fulfill its purpose.
16. Only through a minister does a religious organization begin its own voice and spread its own message.
17. Precluding termination claims by ministers, recognizes that their employment relationship is different than others and deservedly so.
18. A religious organization must be free to choose those who will guide it on its way as well as free to decide how to lead a religious organization on that journey.
19. Absolutely no doubt that the plaintiff was a minister under the applicable Supreme Court case law.
20. Religion permeates the ministerial workplace in ways it does not for other workplaces. Ministers infuse a religious organization with spirituality. Therefore, allowing hostile work environment claims intrudes upon more than a mere employment decision. It also means that analyzing a minister’s hostile work environment claim based upon another minister’s conduct is not just a legal question but a religious one as well.
21. If the relationship between an organized church and its ministers is its lifeblood, then the relationship between its ministers is its backbone.
22. Interaction between ministers is critical to religious organization and its mission.
23. The contours of the ministerial relationship are best left to a religious organization and not to the courts.
24. To render a legal judgment about plaintiff’s work environment is to render a religious judgment about how ministers interact with each other.
25. Deciding where a minister’s supervisory power over another minister ends and where employment discrimination law begins, is not a line to be drawn in litigation, which is why the ministerial exception exist in the first place.
26. A religious organization’s supervision of its ministers is as much a component of its autonomy as is the selection of the individuals playing certain key roles.
27. It doesn’t make sense to say that the independence of religious organizations matter only at the hiring and firing of the ministerial relationship and not in between (the work environment).
28. Distinguishing between tangible and intangible employment actions is not persuasive.
29. By probing the ministerial work environment, courts interfere with the free exercise clause, which protects a religious group’s right to shape its own faith and mission.
30. A religious organization shapes its faith and mission through its work environment as much as it does through its appointments.
31. Allowing the state to regulate the ministerial work environment violates the establishment clause.
32. How one minister interacts with another in the employment environment that follows, is a religious not judicial prerogative.
33. A hostile work environment claim threatens to fundamentally alter the ministerial relationship in the work environment.
34. Since a minister lies at the heart of a religious organization’s work and workplace, deciding whether discrimination pervades his employment impermissibly requires a court’s intrusion into a religious thicket.
35. Civil authorities have no say over matters of religious government. The invitation to turn the spiritual into the secular raises the concern of curtailing religious-based speech in the religious workplace.
36. What one minister says in supervision of another may be stern counsel to some or tread into bigotry to others. How a court is to figure out the difference between the two cannot be done without infringing upon a religious organization’s rights.
37. The free exercise clause allows ministers to have an eye toward liturgy and not litigation.
38. A hostile work environment claim based on the relationship between ministers would send a court into endless inquiries as to whether each discriminatory act was based upon church doctrine or simply secular animus. Discerning the difference between the two is no task for a judge or jury.
39. Judges cannot be as competent in ecclesiastical law and religious faith as members of a religious faith are.
40. Excessive entanglement results when a court adjudicates a minister’s hostile work environment claim based upon the protective ministerial relationship.
41. A religious organization should not be forced to choose between putting forth a religious justification or risking legal liability. That is, the state may no more require a minimum basis in the doctrinal reasoning then it can with respect to supervising doctrinal content.
42. To defend against plaintiff’s claims without the ministerial exception, the church would have to rely on the affirmative defense comprising two elements: 1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Playing that defense out would make legally relevant every step that the church took or failed to take in internally responding to the alleged behavior of the minister from the informal procedures of the church handbook to the ancient traditions of a Canon tribunal. Such rules, policies, and decisions are not the federal courts concern because they are unmistakably of an ecclesiastical nature.
43. Discovery to determine who is a minister differs significantly from discovery to determine how that minister was treated. Even more burdensome would be depositions of fellow ministers to figure out a subjective motive behind the alleged hostility.
44. Tort liability generally does not arise as a direct result of the protective ministerial relationship, which is not the case for employment discrimination claims.
45. Analogy to tort law fails to recognize that a hostile work environment claim brings the entire ministerial relationship under invasive examination.
46. The courts are split on whether the ministerial exception covers hostile work environment claims. The 10^th Circuit says that hostile work environment claims do fall within the ministerial exception. However, the Ninth Circuit says that hostile work environment claims do not fall within the ministerial exception. The court says the 11^th and Fifth Circuits have not taken a clear stand on the issue.

 

II

Why Hostile Work Environment Claims Are Not Subject to the Ministerial Exception (Dissenting Opinion).

 

1. The majority opinion means that regardless of how severe, pervasive, or hostile the work environment is, regardless of whether the hostility is motivated by race, sex, national origin, disability, or age, and regardless of whether the hostility is tied to religious faith and practice, such suits are precluded.
2. The majority opinion focuses too much on religious liberty and too little on the counter arguments and other interests so as to take the Seventh Circuit’s law beyond the necessary protection of religious liberty. Instead, it creates for religious institutions a constitutional shelter from generally applicable laws at the expense of the rights of employees.
3. The Supreme Court has never reached the question of whether hostile work environment claims are subject to the ministerial exception.
4. The majority holding draws an oddly arbitrary line as a matter of constitutional law, barring only hostile environment claims.
5. The Fourth and the Ninth Circuit’s and the Seventh Circuit’s panel decision drawing a line between tangible employment actions and hostile environment claims is the line most consistent with the purposes of the ministerial exception. Such a line allows churches ample power to select, control, and supervisor ministers while protecting employees from abuses that are not properly within the scope of anyone’s employment.
6. The Ninth Circuit’s and the Seventh Circuit’s panel decisions are more in harmony with the broader sweep of First Amendment precedents-protecting religious liberty while not granting special privileges to churches at the expense of their employees except when necessary.
7. In Hosanna-Tabor, the Supreme Court specifically said that they were not expressing an opinion on whether the ministerial exception applied to employees alleging breach of contract or two tortious conduct by the religious employers.
8. The First Amendment does not bar civil suits against churches with respect to all aspects of a minister’s employment relationship. For example, it has long been clear that civil courts may award damages to a minister for breaches of employment contracts.
9. That the circuits are split is a sign that the question of whether hostile work environment cases are subject to the ministerial exception is not as easy of a question as the majority suggests. In the Ninth Circuit case, the Jesuits did not defend the alleged harassment as motivating by religious views. In fact, they condemned it.
10. In a footnote, the dissent notes that ministers claim for breach of contract can present serious First Amendment issues. However, those issues are not barred categorically from civil courts and call for a case-by-case consideration of whether the claim may be decided without intruding into doctrinal or ecclesiastical territory.
11. The Ninth Circuit found that the free exercise clause did not require the courts to deny relief on hostile environment claims. In particular, they noted that the Jesuits most certainly did not claim that allowing harassment to continue unrectified was a method of choosing their clergy. Since there was no protected choice rationale involved, the Ninth Circuit said that they were not intruding on church economy. Therefore, allowing the case to proceed was anymore an intrusion upon church autonomy than when parishioners are allowed to proceed with civil suits against the church for the negligent supervision of ministers who have subjected them to inappropriate sexual behavior.
12. A generalized and diffused concern about church autonomy was not enough to require dismissal.
13. The Ninth Circuit found that in a hostile work environment case there would be no need to evaluate religious doctrine or the reasonableness of Jesuit practices.
14. Churches and leaders are already accountable in civil courts for all kinds of similar sorts of claims. For example, employees who are not ministers may assert rights against churches for discrimination in the hiring, firing, compensation, and every other aspect of the employment relationship, including hostile environment claims.
15. Everyone agrees that even ministerial employees can assert tort claims against supervising ministers and churches as institutions. Tort claims that would be similar to a hostile work environment claim include assault and battery and the intentional infliction of emotional distress.
16. Defendants and all members of the court agree that supervising ministers may be subject to criminal law for crimes committed against church employees, including ministerial employees.
17. Defendants and all members of the court agree that churches and their ministers can be subject to tort and criminal law for wrongs committed against parishioners and others.
18. Investigations into tort and criminal liability of supervisors and churches of institutions cannot avoid looking into a church’s supervision and control of a ministerial employee. While delicate legal questions may arise in that eventuality, such investigation, civil suits, and even prosecutions may proceed and no one suggests otherwise.
19. In a footnote, the dissent notes that state of mind is at the heart of tort law. For example, all you have to do is look at the great divide between intentional torts and negligent torts to get the point. That same footnote also points out that tort liability can arise as a direct result of the protective ministerial relationship. Just take a look at the role of a priest or other pastor’s power in the sexual abuse of parishioners or subordinate ministers or in the infliction of emotional distress on a subordinate.
20. The First Amendment question that the ministerial exception involves has never been what sort of legal immunities actually helps churches. Instead, the question is whether that particular legal immunity is necessary to comply with the First Amendment.
21. The government’s interest in preventing discrimination has long been recognized as compelling for purposes of constitutional analysis.
22. Churches have undisputed powers to select and control their ministers free of constraints from employment discrimination and other laws. Hiring, firing, promoting, retiring, transferring our decisions that employers, including religious ones, make to select those who carry out their work. Further control is available through many other tangible employment actions, including decisions about compensation, benefits, working condition, resources available to do the job, training from other staff and volunteers, and so on.
23. Hostile environment claims involve quite different elements and special rules for employers. The differences show that religious employers do not need exemption from such claims to be able to select, supervise, or control their ministers.
24. Hostile work environment claims are tortious in nature and are by definition based upon actions that are not necessary for effective supervision of employees.
25. In general, sexual harassment by a supervisor is not conduct within the scope of employment so the employer cannot be held liable for that conduct. That said, an employer can be liable where its own negligence is a cause of the harassment or where the supervisor takes tangible employment action against the employee. If no tangible employment action is taken, the hostile work environment rules view the harassment as a tort committed by a supervisor against an employee but acting outside the scope of the supervisor’s employment.
26. The Supreme Court’s leading case teaches that a hostile work environment is not a permissible means of exerting constitutionally protected control over employees and accomplishing the mission of the business or the religious organization.
27. An employer’s need and right to control employees should not embrace harassing behavior that the Supreme Court has defined in numerous cases as conduct that unreasonably interferes with an employee’s work performance. The notion that harassment is somehow necessary to control or supervise an employee is an oxymoron.
28. The suggestion that federal courts cannot tell the difference between pastoral counseling even with tough love or stern counseling and the torrents of the most violent and abusive epitaphs aimed at race, sex, sexual orientation, and disability does not give sufficient credit to the federal courts. After all, courts have been protecting religious liberty for generations by policing lines far more subtle than the one that worries the defendants and the majority in this case.
29. While it is true that application of employment discrimination laws, including hostile environment claims, poses some risk of entanglement between civil power and churches, that should only be the beginning of the analysis and not the end.
30. Where faith communities encounter civil law, American courts have a long history of balancing powerful interest on both sides to protect religious freedom while enforcing other important legal rights. That problem is particularly sensitive when it comes to the tension between the freedom of religion and employees right to be free from invidious
31. Procedural entanglements may result from a protracted legal process pitting invidious church and the state as adversaries and with the religious organization getting subjected to a legal process designed to probe the mind of the church, including far-reaching remedies and continue court surveillance of the church’s policy and decisions even after final judgment. In more than 20 years on the Ninth Circuit, the Ninth Circuit had not seen any procedural entanglements as so defined.
32. Religious employers have long been subject to employment discrimination suits by their non-ministerial employees.
33. Tort, contract, and property claims are not barred categorically against churches.
34. Procedural entanglement is not necessarily any more concerned with hostile environment claims by ministerial employees than claims by non-ministerial employees.
35. The Catholic Church has faced expensive litigation over torts committed by clergy in recent years. That litigation inquires, sometimes deeply so, into the relationship between the clergy and parishioners and into the church’s supervision and disciplinary practices in dealing with priests subjected of having sexually abused children. No one is suggesting that the First Amendment barred such claims or the necessary investigations.
36. Courts have managed potential entanglement problems in church litigation across a range of subjects-from contract and property disputes to employment disputes, torts, and church elections and schisms.
37. Deciding which of two rival groups seeking control of church property has the better theological or doctrinal argument, is not a role for the courts. However, civil court do sometimes decide questions of property, contract, tax, or tort law in cases involving churches. They can do that so long as they avoid issues of faith and stick to applying neutral, secular principles of law.
38. If the full sweep of case law is considered, a need for balance and nuance and not new absolute rules in constitutional law is required.
39. Civil courts have nothing to say about whether same-sex marriage or a hierarchal supervisory structure should be permitted. The church was free to decide whether to retain the plaintiff or fire him. However, hostile work environment claims alleging conduct constituting abuse under neutral, generally applicable standards that would be enforceable on behalf of a non-ministerial employee is another matter as such conduct is by definition not necessary to control or supervise any employee. So, the dissent would hold that courts may apply secular hostile environment law to actions taken towards all employees, including ministers, absent a showing that the circumstances of the particular case would require excessive entanglement between civil and religious realms.
40. Hostile environment claims have been brought against other types of employers on the basis of highly disturbing facts and the majority opinion would preclude such claims.
41. In brief and oral argument, defendants acknowledge that a religious employer could be held civilly liable for supervisor’s criminal or tortious conduct toward a ministerial employee or for the pattern of racial abuse and harassment described in other cases. If that is the case, the dissent does not see why a statutory case based upon the same conduct necessarily violates the First Amendment regardless of whether the supervisor claims a religious motive.
42. It is difficult for the dissent to conclude that the First Amendment requires immunity with supervisors and coworkers of a ministerial employees leave nooses at the desk of the black minister while repeatedly subjecting him to verbal abuse with racial epitaphs and symbols. Similarly, it is difficult to understand how the First Amendment would require immunity where a teacher is subject to pervasive and unwelcome sexual intention or subject another to intimidating harassment based upon national origin. Such harassment is simply not necessary to control ministerial or any other employee. The majority’s holding puts this sort of extreme conduct beyond the reach of employment discrimination statutes.
43. The majority decision raises the stakes for future decisions about who should be deemed a ministerial employee. In fact, many employers with religious affiliations are trying to expand the reach of the ministerial exception to cover a much broader range of their employees, such as teachers, nurses, and other healthcare workers. Lawyers for such employers have been offering public advice about how to do precisely that. In fact, several cases have rejected that approach. Expect aggressive effort to expand who might be ministerial employees after the majority opinion.
44. The combination of the majority’s holding in this case with effort to expand the categories employee deemed ministerial threatens to leave many without basic legal protection of their dignity and employment.

 

III

Thoughts/Takeaways

 

1. The Circuit Court split mean that it is inevitable that sooner or later this will go before the Supreme Court. I count four solid votes for the en banc decision: Barrett, Alito, Thomas, and Gorsuch. Three solid votes in favor of the dissent: Kagan, SotoMayor, and Breyer. That leaves Chief Justice Roberts and Justice Kavanaugh outstanding. Both are Catholics but that could play either way. Also, hard to say how the sexual harassment allegations against Justice Kavanaugh in his confirmation hearings would affect anything, if at all. For the dissenting view to prevail, Justice Kavanaugh and Chief Justice Roberts are going to have to be convinced somehow. The briefs for either side can be expected to resemble closely the majority and dissenting opinion in the Seventh Circuit’s en banc decision.
2. Most certainly, lawyers are advising their clients on ways to increase the possibility of their ministerial exception applying to their clients that are religious employers. I started making suggestions myself the minute the Hosanna-Tabor decision came down, see here.
3. Effort to make employees ministers may not be that difficult, particularly after the Our Lady of Guadalupe decision, here.
4. If the majority opinion of the en banc Seventh Circuit’s decision is confirmed by the United States Supreme Court, you can expect an awful lot of litigation over who is a minister. In that situation, plaintiffs will have to figure out a way to say that Our Lady of Guadalupe did not render Hosanna-Tabor irrelevant. That is, the Hosanna-Tabor analysis of who is a minister still must be worked through. One wonders if the en banc majority decision is adopted, if you will not see a significant effort by employees to narrow Our Lady of Guadalupe and focus on using Hosanna-Tabor to figure out whether a ministerial employee is involved.
5. If you are a person with a protected characteristic and are considering working for a religious employer in a jurisdiction that follows the majority of the Seventh Circuit’s en banc decision, you want to think several times over before deciding to work for that organization. At a minimum, a prospective employee should insist upon language in the contract saying that the religious organization will not discriminate against you based upon your protected characteristic. If you are a person with a disability, make sure that contractual language includes making reasonable accommodations per the ADA. If the religious entity is not willing to put that into the employment contract, serious consideration should be given to just walking away as difficult as that might be.
6. You can expect litigation to move into the area of breach of contract if the majority opinion becomes the rule. Hence, what is actually in the employment contract will become super important.
7. Since title III of the ADA specifically exempts religious employers from its coverage, you want to think very carefully about whether you want to be an independent contractor for religious organizations if you are a person with the disability. At a minimum, get protective contractual language into the independent contractor agreement.
8. The majority opinion may be a be careful what you wish for situation. That is, religious employers may now find it very difficult to attract good employees to work for them because should there be any discrimination, the employee is without any remedy under the Seventh Circuit majority opinion. In the socially conscious world we now live in, such organizations may see protests and members leave as well.
9. Even the dissenting opinion may be problematic for persons with disabilities alleging a hostile work environment with respect to a disability at a religious organization. One of the arguments that the dissent makes is that such conduct is outside the scope of employment. However, when it comes to the ADA the general rule is that there is no individual liability pertaining to private entities.
10. Non-ministerial employees, if there is such a thing after Our Lady of Guadalupe, are not affected by this decision.
11. The ministerial exception is an affirmative defense. So, the burden of making the defense falls upon the religious employer. How difficult that burden is, is not clear after Our Lady of Guadalupe Bay. Our Lady of Guadalupe and Hosanna-Tabor suggest very different answers between them on how expensive the burden of proof is for the religious employer.
12. In extreme situations, look for more intentional infliction of emotional distress claims against religious employers after this decision because the decision does not preclude such claims. Also, look for other intentional tort claims to increase as well, such as assault and battery. Finally, keep in mind that intentional tort claims are often not covered by insurance.

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