Appeals courtroom says all hostile office claims by ministers are barred by ministerial exception

The prohibition of discrimination in Title VII of the Civil Rights Act applies not only to recruitment and dismissal; it also protects against “hostile” work environments. But what if your work environment is a place of worship and you are a pastor? This was the question recently dealt with by the US 7th Court of Appeals in a case pending Music Secretary Sandor Demkovich against his Roman Catholic community in Calumet City, Illinois.

Demkovich was a music pastor, choirmaster and organist in the Apostle parish of St. Andrew. He made claims under Title VII and the Americans with Disabilities Act and said that during his employment he had repeatedly made derogatory and degrading comments about his sexual orientation and weight issues from his line manager, the Church pastor.

Demkovich was eventually fired for marrying his same-sex partner. His lawsuits for unlawful dismissal were dismissed on the basis of the “ministerial exception”, which protects hiring and firing decisions by religious institutions from discrimination claims by employees with ministerial functions in order to preserve religious freedom and avoid government entanglements.

A district court, and later a three-judge panel of the 7th district, ruled that the ministerial exception does not categorically exclude all claims of harassment in the workplace brought by ministerial employees, so Demokovich’s lawsuit can go ahead. However, the entire appeals court voted to hear the case again and overturned that decision in a 7-3 statement. The majority stated:

It is best to leave the contours of the official relationship to a religious organization, not a court. Within a religious organization, labor disputes between ministers take on a constitutionally protected character. Making a legal judgment about Demkovich’s work environment means making a religious judgment about the interaction of clergymen. . . . The decision of where a minister’s oversight authority ends over another minister and where the employment discrimination law begins is not a limit in litigation, the point of ministerial exception.

The exclusion of hostile claims to the work environment due to harassment by ministers also fits within the doctrinal framework of the ministerial exception. The supervision of a religious organization over its clergy is as much a “part” of its autonomy as “the selection of the people who play certain key roles”. It would be contradictory if the independence of religious organizations were only important at the beginning (hiring) and at the end (dismissal) of the office relationship and not in between (working environment).

The Dissent agrees that the case raises important religious freedom issues, but argues that a categorical lockdown on hostile claims in the workplace tilts the balance too much towards religious freedom at the expense of workers’ rights. In this case, the dissent argues that it is not necessary to intrude into religious matters in order to investigate Demkovich’s claim. Here is an excerpt:

The majority tell us … that hostile environmental claims by ministerial employees threaten religious freedom because they overshadow the “advice” of a headstrong subordinate by a minister of supervision. . . . The suggestion that federal courts cannot tell the difference between pastoral counseling, even if it is “hard love” or “strict counseling” as the majority put it, and a torrent of the most hideous and offensive epithets referring to race, gender, aiming at sexual orientation and disability does not grant sufficient recognition to the federal courts. Courts have protected religious freedom for generations by monitoring lines far more subtle than those that worry the defendants and the majority in this case.

The question of whether the ministerial exception applies to actions against hostile environments has received different answers from different circles, a division that could eventually be resolved by the US Supreme Court. Last year SCOTUS addressed the ministerial exception at the Our Lady of Guadalupe school, a case in which it was asked who is qualified as a “minister”.