Midwest High Court: Religious Employers May Discriminate Against—But Not Abuse—Their Employees

Midwest High Court: Religious Employers May Discriminate Against—But Not Abuse—Their Employees

Sandor Demkovich was a music director at a suburban Chicago Catholic church before he was fired from his position in 2014 after just two years of employment. He claimed his termination was a result of being gay and suffering from a disability. A judge originally determined that suing over his termination was barred by the “ministerial exception,” but a surprise ruling by the 7th Circuit Court of Appeals has allowed him to replead his case based on a hostile work environment. The 7th Circuit ruling can be seen as slightly weakening a very recent Supreme Court case, and therefore may hasten the next Supreme Court showdown between religious liberty and civil rights.

Demkovich alleged that he faced routine harassment from the parish pastor, Reverend Jacek Dada, on account of being gay, having a disability (diabetes), and being overweight (resulting from a metabolic syndrome). In particular, he claimed that Dada made disparaging comments about his weight, saying he should walk the pastor’s dog to slim down. He also said Dada insulted his sexual orientation. Referencing Demkovich’s upcoming marriage to his same-sex partner, the pastor referred to both men as “bitches,” among other derogatory remarks. The pastor also hounded other employees about Demkovich’s marriage and implied he was going to fire the music director. Such abuse harmed Demkovich’s health, both physical and mental. Shortly after Demkovich married, Dada terminated his employment, claiming “Your union is against the teachings of the Catholic Church.”

Demkovich filed suit against the Archdiocese of Chicago for discrimination and wrongful termination, but his case was dismissed as a result of the “ministerial exception,” a court-invented rule that employees who carry out religious duties for their religious employers—known legally as “ministers”—are not protected by many employment laws. Courts believe that the Constitution’s First Amendment religious liberty protections bar judges from getting involved in these “ministerial” employment disputes, effectively placing religious employers outside the bounds of employment regulations. Some believe that this is the only way that churches, schools, and other religious employers can maintain control over who they chose to carry out the core functions of their religious missions free from government control. The Supreme Court officially recognized this “ministerial exception” in a 2012 case, Hosanna-Tabor v. EEOC.

After losing on his discrimination and wrongful termination claims, Demkovich re-filed his suit, instead focusing solely on the “hostile work environment” created by the abuse and humiliation he suffered. On appeal, the 7th Circuit was asked whether a “ministerial” employee can ever bring a hostile work environment claim against a religious employer. The 7th Circuit answered in the affirmative, carefully distinguishing “tangible employment actions,” such as a discriminatory demotion or termination, from actions that are totally unrelated to maintaining one’s religious mission, such as engaging in workplace harassment. The majority opinion mentioned that Hosanna-Tabor was limited to the termination then in question and did not touch upon workplace harassment. As a result, Demkovich’s hostile work environment claim can now be litigated.

This twist in ministerial exception jurisprudence comes on the heels of a Supreme Court case that just recently expanded the exception’s scope. According to Our Lady of Guadalupe School v. Morrissey-Berru, it appears that just about anyone with any religious duties in a religious workplace can qualify as a “minister” and therefore forfeit the protections of various employment laws, including the right to be free from discrimination, harassment, and retaliation. Yet the 7th Circuit has now joined the 9th Circuit in holding that even though most other employment claims would be barred by the exception, harassment claims should not necessarily be. The 10th Circuit, however, has ruled that all such claims should be dismissed.

This stark circuit split will almost certainly lead to a legal showdown at the Supreme Court in the coming years, as the nation continues to define the limits of religious liberty when it conflicts with civil rights, including employment laws. Moreover, the appointment of the next Supreme Court justice could be determinative in a ruling on such a case. If President Trump prevails in appointing a justice, it is likely that employees with some religious functions will lose even this slim exception to the exception they enjoy in some jurisdictions. If Mr. Trump’s appointment does not go through, there is a greater chance that this small carve-out will be maintained. In any case, the ministerial exception is but one issue revealing the high stakes tied to the appointment of a single justice: one seat could determine the rights of hundreds of thousands of workers, if not millions, across the United States.

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