In a recent case, Demkovich v. St. Andrew the Apostle Parish, 19-cv-2142 (7th Cir. August 31, 2020), the U.S. Court of Appeals for the 7th Circuit[1]Note: This firm does not engage in the practice of law, and its owner is not licensed to practice law, in the jurisdiction which issued this decision. held that plaintiff’s sexual-orientation based hostile work environment claim was not barred by the “ministerial exception”.
From the decision:
The ministerial exception is a matter of constitutional law, not statute. Our Lady of Guadalupe School, 140 S. Ct. at 2055; Hosanna-Tabor, 565 U.S. at 188. The question here is not whether we believe as a matter of policy that religious employers should be exempt from hostile environment claims. The question is whether that exemption is necessary under the First Amendment. Bollard, 196 F.3d at 947. In terms of the Free Exercise Clause, the answer is no.
The ministerial exception ensures that religious organizations are able to “select and control” their ministers without interference from civil law like employment discrimination statutes and their procedures for enforcement. Hosanna-Tabor, 565 U.S. at 195; accord, Our Lady of Guadalupe School, 140 S. Ct. at 2060-61. That purpose can be accomplished by applying the ministerial exception to all tangible employment actions, which give religious employers ample tools to both select and control their ministerial employees.
Selection is clear enough. Hiring, firing, promoting, retiring, transferring—these are decisions that employers, including religious organizations, make to select those who carry out their work. Further control is available 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.
Employment discrimination law recognizes an employer’s power to control work of its employees in these many ways. That’s why employers are held accountable for these tangible decisions when a manager makes such a decision with an unlawful purpose. See Ellerth, 524 U.S. at 762 (“Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates” and require “an official act of the enterprise”).
Hostile environment claims arise under the same statutes, but they involve different elements and specially tailored rules for employer liability. These differences show that a religious employer does not need exemption from such claims to be able to “select and control” its ministers.
Hostile environment claims are essentially tortious in nature. See Ellerth, 524 U.S. at 756-57; Faragher, 524 U.S. at 793-94. They use different standards for holding an employer liable for actions that render the environment hostile, and they do so precisely because the behavior that creates the hostile environment is not essential for management supervision and control of employees.
| ↩1 | Note: This firm does not engage in the practice of law, and its owner is not licensed to practice law, in the jurisdiction which issued this decision. |
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