Demkovich v. St. Andrew the Apostle Parish: Exploring the Limits of the Ministerial Exception
The First Amendment to the United States Constitution protects a religious organization’s right to manage the employment of its ministers free from government intrusion. This is known as the “ministerial exception” to employment laws. In a recent post, we discussed the United States Supreme Court’s July 2020 decision in the case of Our Lady of Guadalupe School v. Morrisey-Berru, in which the Court held that the criteria for determining whether the ministerial exception applies to bar lawsuits by ministers against their employers is a matter of function rather than form. The decision emphasized that when it comes to deciding whether an employee is a minister, “what matters at bottom is what an employee does,” and not the person’s job title, education, or other formalities.
While the Our Lady decision clarified the standard by which courts should determine whether an employee was a minister, the Court left unanswered the issue of what claims an employee is barred from asserting against their employer when he or she is a minister. One can understand the ministerial exception as having a bi-dimensional scope. The exception has a “who” axis and a “what” axis. The “who” axis is the scope of which employees are covered by the exception. The “what” axis is the scope of what claims are covered by the exception. The Our Lady decision clarified the scope of the “who” dimension, but it did not speak to the “what” dimension.
The Supreme Court’s only two ministerial exception decisions have both involved ministerial employees asserting claims against religious employers under anti-discrimination statutes. It is clear from both decisions that the exception applies to bar claims for direct discrimination. But what is not clear is whether and to what extent the exception applies to other claims. Does it only apply to employment discrimination laws or does it extend to other workplace regulations such as wage and hour laws, occupational safety, unemployment insurance, etc.? Does it apply as a defense to workplace torts such as defamation and invasion of privacy? A recent decision from the U.S. Court of Appeals for the Seventh Circuit indicates that some courts may set boundaries on the “what” axis of the ministerial exception’s application.
The Seventh Circuit’s Decision
In the case of Demkovich v. St. Andrew the Apostle Parish, the court described the underlying facts as follows:
Plaintiff Sandor Demkovich was hired in 2012 as the music director at St. Andrew the Apostle Parish, a Catholic church in Calumet City, Illinois. He was fired in 2014. Demkovich is gay. When he was hired, he had been with his partner (now husband) for over a decade. He also was overweight and suffered from diabetes and metabolic syndrome, and he had these conditions before St. Andrew hired him. Demkovich's supervisor was Reverend Jacek Dada. According to Demkovich, Reverend Dada subjected him to a hostile work environment based on his sexual orientation and his disabilities. Demkovich alleges that Reverend Dada 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. Demkovich also alleges that Reverend Dada 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.1
Demkovich sued the St. Andrew parish and the Archdiocese of Chicago, asserting hostile work environment claims under both Title VII and the Americans with Disabilities Act. Hostile environment claims are distinct from classic discrimination claims under these statutes. Where classic or direct discrimination involves a tangible employment action or decision to hire, fire, promote, or demote someone on the basis of their race, color, sex, religion, age, disability, etc., a hostile work environment claim arises when an employee is subjected to pervasive harassment by co-workers or supervisors on the basis of the person’s protected class and the employer fails to take prompt, corrective action.
The Archdiocese moved to dismiss Demkovich’s lawsuit for failure to state a claim, invoking the ministerial exception. The trial court granted the motion in part, dismissing the Title VII claim but allowing the ADA claim to proceed. Both parties initiated an interlocutory appeal of the trial court’s decision to the Seventh Circuit. Before the Seventh Circuit, both parties agreed that Demkovich was a minister but disagreed as to whether Demkovich’s hostile environment claims were barred by the ministerial exception.
The Seventh Circuit ruled in favor of Demkovich, reasoning that the ministerial exception only protected a religious employer’s right to the “selection and control” of its ministers. “Selection,” the court stated, included decisions such as “hiring, firing, promoting, retiring, transferring,” and “control” included “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.”
However, the court pointed out that the common touchstone of these protected prerogatives for the selection and control of ministerial employees is that they all involve tangible employment decisions. The court distinguished these kinds of tangible employment decisions, which were clearly protected by the ministerial exception, from hostile work environment claims, which the court characterized as “essentially tortious in nature.” Quoting from the Hosanna-Tabor decision, the Supreme Court’s first articulation and application of the ministerial exception, the Seventh Circuit emphasized that the ministerial exception “does not cover actions by employees alleging tortious conduct by their religious employers.”
The court noted that while hostile environment claims arise from the same statutes, they involve different elements and specially tailored rules for employer liability. The court reasoned that “a religious employer does not need exemption from such claims to be able to ‘select and control’ its ministers,” and therefore the ministerial exception did not apply to these claims. The Seventh Circuit reversed the trial court’s dismissal of Demkovich’s claims.
Implications for Religious Organizations
The implications of the Demkovich decision are a mixed bag for religious employers. The decision leaves ministries open to litigation from ministerial employees for hostile environment claims. This is especially concerning for some ministries after the Supreme Court’s decision in Bostock v. Clayton County, which ruled that Title VII’s prohibition of sex discrimination also protects LGBTQ-identity. For religious employers with traditional convictions on marriage, gender, and sexuality, the Demkovich decision might allow ministerial employees to sue employers for maintaining work environments that they allege are hostile to LGBTQ identity. Since workplace relationships in the ministry context often have a pastoral dimension, the rule from Demkovich might subject some ministries to hostile environment liability when an employee’s supervisors or co-workers address the person’s sexuality in a manner consistent with the organization’s religious convictions. As the dissenting judge on the Seventh Circuit expressed, this raises significant First Amendment concerns that simply exercising spiritual or ecclesiastical discipline on a ministerial employee might give rise to liability for hostile environment claims.
On the other hand, the bright-line rule from Demkovich that “tangible employment decisions” are protected under the ministerial exception while still allowing ministers to assert claims for harassment and other more tortious claims might prove to be a workable standard for both religious employers and ministerial employees. The bright side of the “selection and control / tangible employment decision” standard is that it gives clarity as to which employment claims are and are not subject to the ministerial exception. For example, the courts have not made it entirely clear whether the ministerial exception bars claims under wage and hour regulations. Applying the Demkovich rule that all “tangible employment decisions” are subject to the ministerial exception would resolve that uncertainty and many others in favor of religious employers.
It is important to note that the Demkovich decision does not have nation-wide application, but rather only on federal courts in the Seventh Circuit. Courts in other circuits might follow Demkovich while others might adopt a different rule. Should such a split emerge in the federal appellate courts, this issue might perhaps be the next big ministerial exception issue that the U.S. Supreme Court takes up.
1 Demkovich v. St. Andrew the Apostle Par., Calumet City, No. 19-2142, 2020 WL 5105147 (7th Cir. Aug. 31, 2020) (Access the full court opinion at http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2020/D08-31/C:19-2142:J:Flaum:dis:T:fnOp:N:2572335:S:0)
Featured Image by Rebecca Sidebotham.
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