In Brandenburg, Elizabeth et al v. Greek Orthodox Archdiocese of North America et al, 2023 WL 2185827 (S.D.N.Y. Feb. 23, 2023), the court addressed the following question, which has divided various courts: “whether, and under what circumstances, a clergy member can bring a claim for hostile work environment discrimination or retaliation against a religious employer.”
Plaintiffs, in sum, assert that one of the defendant archdiocese’s clergy members, Father Gerasimos Makris, touched them in “explicitly sexual ways.” The court (in a detailed analysis) held that genuine issues of material fact existed as to whether plaintiffs suffered a “hostile work environment” that was “because of their sex.”
It then turned to the discussion and application of the so-called “Ministerial Exception” to Title VII liability, which defendants argued barred plaintiff’s claims. Briefly, the “Ministerial Exception” is an affirmative defense grounded in the First Amendment’s Establishment and Free Exercise Clauses.
In determining that this exception did not apply here, the court explained:
On the present record, the Court concludes that Plaintiffs’ sexual harassment claims can nevertheless be adjudicated without running afoul of the First Amendment. Context aside, religion is — subject to one caveat discussed below — irrelevant to the adjudication of Plaintiffs’ claims and Defendants’ defenses. The primary questions the jury will be asked to decide are whether Father Makris engaged in the conduct that Plaintiffs allege; whether any of that conduct occurred within the limitations period; and whether, as a result of that conduct, Plaintiffs’ workplace was permeated with discriminatory intimidation, ridicule, and insult that was sufficiently severe or pervasive to alter the conditions of their employment and create an abusive working environment. To answer these questions, the jury would not need to consider religion at all, let alone grapple with the validity or truthfulness of any religious teaching. The fact that the parties managed to complete full-blown discovery with respect to Plaintiffs’ sexual harassment claims without any contention from Defendants that the process or inquiry intruded on their First Amendment interests merely confirms the point.
[Cleaned up.]
The court further held that plaintiffs’ retaliation claims – based on an alleged threat to send plaintiffs to Greece – may likewise continue.