The First Amendment provides religious organizations the absolute right to choose their own ministers without government interference. The right is referred to as the ministerial exception and bars ministers from suing their religious employers for employment discrimination. The ministerial exception is based on the well-established constitutional principle that religious organizations must be completely free to decide their own doctrine, their terms of membership, and who they want to serve as ministers.
While the United States Supreme Court has recently reaffirmed the breadth of the ministerial exception in two different employment discrimination cases,[1] the Seventh Circuit Court of Appeals just decided a case[2] which asked whether the ministerial exception also barred ministers from pursuing hostile work environment claims . In the Demkovich case, St. Andrew the Apostle Parish in Calumet City, IL hired Sandor Demkovich to serve as its music and choir director in 2012. Mr. Demkovich alleged that over the next two years the church’s pastor, Reverend Jack Dada, discriminated against him because of his sexual orientation and made derogatory comments, especially after Demkovich revealed that he intended to marry his partner against the teachings of the Catholic Church. After Reverend Dada fired him, he sued and asserted a hostile work environment claim.
After several years of litigation, a three-judge panel of the Seventh Circuit Court of Appeals ruled that Demkovich’s hostile work environment claims were not barred by the ministerial exception. But the Parish responded by asking all the judges of the Seventh Circuit to reconsider the ruling en banc or as the full court.
On July 9, 2021, a 7-3 majority of the Seventh Circuit overruled the prior panel and held that the ministerial exception protects religious organizations from hostile work environment claims based on minister-on-minister harassment. Demkovich, 2021 WL 2880232, at *1. The Court held that allowing a minister to sue over what another minister said “would not only undercut a religious organization’s constitutionally protected relationship with its ministers, but also cause civil intrusion into, and excessive entanglement with, the religious sphere.” Id. at *4.
The Court, however, carefully notes that religious organizations are not immune from all law. Religious organizations are still subject subject to building and zoning laws, the FLSA and criminal and tort liability. Therefore, claims could go forward for intentional infliction of emotional distress instead of a hostile work environment. Tort claims for assault and battery can move forward so long as it is not framed in the context of a religious employment matter. In short, the door is not closed on all claims.
Writing for the three dissenting judges, Judge David Hamilton wrote that the majority went too far in barring all claims “regardless of how severe, pervasive, or hostile the work environment is.” Id. at *10. The dissent also raised concerns with expanding the ministerial exception beyond what is reasonable and the incentive it creates for religious organizations to disingenuously expand the scope of employees they classify as ministers.
Two years ago, the Seventh Circuit recognized that it is for religious organizations, not the courts or the government, to decide whether particular employee’s activities are vital to an institution’s religious mission or necessary to advance the institution’s faith. Sterlinski v. Catholic Bishop of Chi., No. 18-2844, 2019 U.S. App. LEXIS 23712, at *5-7 (7th Cir. Aug. 8, 2019). In Sterlinski, the government was arguing that the organist’s job was not sufficiently religious to qualify as a minister, and the organist claimed he was just playing notes. The Church countered that his music was vital to the Church’s services regardless of how he felt about the music he was playing. Ultimately, the Seventh Circuit found for the Church and wrote, “If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization.” Id.
In light of these decisions, religious organizations (churches, synagogues, religious schools, and ministries of all kinds) should review their employment policies and procedures. At Dalton & Tomich, we have helped religious organizations review their employment decisions, policies, and procedures to help them better understand the ministerial exception and where they may be subject to liability. If you would like us to help your organization, please feel free to contact us.
[1] Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012) and Our Lady of Guadalupe School v. Morrisey-Berru, 140 S. Ct. 2049 (202).
[2] Demkovich v. St. Andrew the Apostle Par., Calumet City, 2021 WL 2880232 (7th Cir. July 9, 2021).
