Last month, the U.S. Court of Appeals for the Seventh Circuit in Demkovich v. St. Andrew the Apostle Parish declined to establish a blanket rule extending the “ministerial exception” beyond tangible employment decisions to claims of a hostile work environment asserted by ministerial employees. The court observed that while the First Amendment protected religious employers’ right to “select and control” their ministerial employees (which included decisions on “hiring, firing, promoting, deciding compensation, job assignments, and the like”), it may not extend to hostile environment actions.
Demkovich was hired as a music director by St. Andrew, a Catholic church in Calumet City, Illinois. He was gay, overweight, diabetic and suffered from metabolic syndrome, all of which traits he alleges were targeted for harassment during the term of his employment.
Demkovich alleged that Reverend Dada, his supervisor, “repeatedly and often subjected him to comments and epithets showing hostility to his sexual orientation, and increased the frequency and hostility after learning that Demkovich intended to marry his partner and again as the date of the ceremony approached. After the ceremony, Reverend Dada demanded Demkovich’s resignation because his marriage violated Church teachings. Demkovich refused, and Reverend Dada then fired him.”
Reverend Dada also “repeatedly harassed and humiliated him based on his weight and medical issues. According to Demkovich, his job did not call for any particular physical-fitness requirements, and Reverend Dada never connected his disparaging and humiliating comments to Demkovich’s job performance. Demkovich alleges that Reverend Dada’s harassment on both grounds ‘humiliated and belittled’ him, causing serious harm to his physical and mental health.”
Demkovich sued St. Andrew in federal district court, asserting hostile work environment claims under Title VII and the ADA. When the court allowed his ADA claim to proceed, St. Andrew appealed, arguing that because Demkovich was a ministerial employee, the ministerial exception should apply to bar adjudication of any employment-related action, including hostile work environment claims, and not just ‘tangible’ employment decisions like hiring and firing.
The Ministerial Exception
The ministerial exception is a defense available to religious institutions in responding to discrimination claims under various employment laws, including both Title VII and the ADA. The exception is an outgrowth of the First Amendment’s Free Exercise and Free Establishment clauses, which protect the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” The ministerial exception, traditionally applied to clergy members, excludes employment decisions from judicial interference so long as the employee’s role is essential to the institution’s central mission.
Demkovich conceded that, under the ministerial exception, St. Andrew could not be held liable for its decision to terminate him. Previous court decisions have determined that a church’s music director is a “minister” for purposes of the exception and that the First Amendment prohibits enforcement of federal employment discrimination statutes against decisions of churches and other religious organizations to hire or fire their “ministerial employees.”
The Seventh Circuit agreed with Demkovich that a religious employer’s ability to take tangible employment actions free of statutory liability gives the employer ample freedom to “select and control” its ministerial employees. The right to select a ministerial employee manifests through hiring, firing, promoting, retiring and transferring employees. Further “control” is exercised through “a host of other tangible employment actions, including decisions about compensation and benefits, working conditions, resources available to do the job, training, support from other staff and volunteers … the list could go on.”
Hostile Work Environment
The U.S. Supreme Court has stated: “When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment, Title VII is violated.”
A plaintiff’s evidence of a hostile work environment must go well beyond showing rudeness, and the standard articulated by the Supreme Court ensures that Title VII does not become a ‘general civility code.’ In relation to the ministerial exception specifically, the court rejected St. Andrew’s claim that it needed more tools than tangible employment decisions to “control” its employees. Instead, relying on Supreme Court precedent, the court held that a “hostile work environment simply is not a permissible means of exerting (constitutionally protected) ‘control’ over employees and accomplishing the mission of the business or religious organization.”
Hostile Work Environment Claims Not Categorically Barred by Ministerial Exception
Procedurally, the Seventh Circuit in Demkovich was asked to decide a certified, broad legal question that was not limited to the factual details of the particular case before it: whether the ministerial exception categorically barred all hostile work environment claims brought by ministerial employees under federal discrimination statutes. The court held that it did not:
“Hostile environment claims by ministerial employees have been few and far between. The federal courts have little experience with them. We believe it would be a mistake, and at least very premature at this time, to conclude that all such cases will inevitably violate the First Amendment and thus must be barred.”
The court thus held that neither of Demkovich’s hostile environment claims under Title VII or the ADA were categorically barred by the ministerial exception, and St. Andrew’s motion to dismiss was denied.
- The ministerial exception’s bar on judicial review applies to tangible employment actions by a religious employer concerning a ministerial employee, such as hiring, firing, promoting and transferring, as well as decisions relating to compensation, training and support.
- The ministerial exception does not categorically bar claims for hostile work environment because harassment and abuse are generally not necessary means for a religious organization to “select and control” its ministers, but rather are tortious acts that fall outside the harasser’s scope of employment.
- As forewarned by the dissenting judge, ministerial employees who feel their termination was motivated by discriminatory animus may be more likely to pursue an action based not on the termination itself, which is not reviewable under the ministerial exception, but on hostile work environment claims rooted in the same discriminatory basis. Of course, these plaintiffs must show something other than a tangible employment action, and something more than incivility, in order to prove their charge.
- This Seventh Circuit decision governs all religious employers in Wisconsin, Illinois and Indiana, and the court relied on similar precedent applicable to employers in the Ninth Circuit.