For some time, the U.S. Supreme Court has recognized that the First Amendment’s Religion Clauses bar secular courts from enforcing federal anti-discrimination laws against religious employers that make hiring or firing decisions pertaining to “ministerial employees” based on protected characteristics, religious or not. In mid-July 2020, the Supreme Court clarified the scope of employees who may qualify as a “minister,” i.e., employees who perform vital religious functions, regardless of title, for religious employers. We explained the implications of this Supreme Court ruling on the “ministerial exception” on religious employers here.
The United States Court of Appeals for the Seventh Circuit recently answered an altogether different question concerning the scope of the ministerial exception. The district court certified the following broad question on appeal: “Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action [e.g., hiring, firing, promoting, compensation decisions].”
The Seventh Circuit answered “no,” holding that the First Amendment’s ministerial exception only extends to prohibit enforcement of federal anti-discrimination laws against religious employers by ministerial employees who are challenging tangible employment actions. The ministerial exception, the court concluded, does not immunize religious employers from hostile work environment claims by ministerial employees that do not challenge tangible employment actions.
Seventh Circuit Rules Gay and Disabled Ministerial Employee Can Sue Religious Employer
The Seventh Circuit case involved a music director who sued his parish-employer and the Archdiocese of Chicago alleging hostile work environment claims under Title VII and the Americans with Disabilities Act. The plaintiff alleged that his supervisor, a clergyman, subjected him to frequent and increasingly hostile comments based on his sexual orientation and disabilities before ultimately firing the plaintiff after he married his same-sex partner.
The Church moved to dismiss the plaintiff’s claims, invoking the First Amendment’s ministerial exception. The district court granted the Church’s motion in part, dismissing the plaintiff’s Title VII claim but allowing his ADA claim to proceed. Notably, the parties did not dispute that the plaintiff qualified as a ministerial employee, the subject issue of the Supreme Court’s July 2020 decision. The defendants appealed, requesting the Seventh Circuit answer the question above.
In a 2-1 decision, the Seventh Circuit affirmed the district court with respect to the plaintiff’s ADA claim and reversed as to his Title VII claim. In so holding, the Seventh Circuit ruled that the ministerial exception extends only to “tangible employment actions,” i.e., employment actions protected under the First Amendment that allow religious organizations to choose and control their ministers without judicial review or government interference under anti-discrimination laws. Conversely, according to the Seventh Circuit, the ministerial exception does not apply to hostile work environment claims that do not challenge tangible employment actions.
The Seventh Circuit embarked upon a lengthy constitutional analysis in reaching its decision. The court reasoned that the First Amendment’s Religion Clauses do not entirely bar legal claims against religious employers by ministerial employees, noting the parties’ agreement that ministers may sue their religious employees under contract and tort theories. Nor does the First Amendment bar criminal claims against religious employers related to mistreatment of ministerial employees.
This history of balancing and compromising to protect religious freedom while enforcing other important legal rights, and the exploration of its own precedent, guided the Seventh Circuit’s decision. Recognizing how the Supreme Court views hostile work environment claims as essentially tortious in nature, the Seventh Circuit explained that the Religion Clauses provide religious employers with ample protection from government interference as to selecting and controlling their ministers. The court concluded, however, that the First Amendment does not bar claims that a worker was bullied because of a protected trait since creating a hostile work environment is not essential for religious employers to choose and control their ministers. In other words, the First Amendment does not require protection for religious employers in this regard.
Takeaways for Religious Employers
The case serves as an important reminder to religious employers: the ministerial exception is not an absolute bar to liability from employment discrimination claims by ministerial employees. Creating a needless hostile work environment because of a ministerial employee’s protected characteristic like sexual orientation or disability is not a constitutionally protected activity. Rather, the ministerial exception only applies to tangible employment actions like hiring, firing, promoting, and compensation decisions.
Importantly, the Seventh Circuit did not judge the merits of the plaintiff’s hostile work environment claims. The court only answered whether such claims are allowable under the First Amendment’s ministerial exception and that personal religious beliefs do not provide religious employers and supervisors with constitutional protection to harass their employees. Therefore, the case does not provide guidance on what is and is not considered a hostile work environment, except to acknowledge that such factual circumstances are feasible. That said, the court did provide some examples: the First Amendment does not provide religious employers or their employees the right to leave nooses at the desk of a Black minister or to subject a teacher to pervasive and unwelcome sexual attention. Such harassment is not constitutionally necessary to select or control ministerial employees within the purpose of the First Amendment’s ministerial exception.
The Seventh Circuit’s decision adds to a circuit split between the Ninth Circuit and the Tenth Circuit. The Seventh Circuit joined the Ninth Circuit on the question presented and departed from the Tenth Circuit. In doing so, the Seventh Circuit noted that the Tenth Circuit (and the dissenting Seventh Circuit judge in this case) misinterpreted a 2003 Seventh Circuit case in erroneously reasoning that the ministerial exception does categorically bar hostile work environment claims brought by ministers against religious employers. At present, it is unclear whether the defendants are considering further appellate action, including whether defendants will petition the entire Seventh Circuit to rehear the case. Regardless, we anticipate other circuits will rule on this issue in the future and the question ultimately to reach the Supreme Court.