Protecting the Pious: Why the Ministerial Exception Should Not Categorically Bar Hostile Work Environment Claims

by Jessica Daneshvar* 

Religious organizations are constitutionally protected from undue burden from the government. This protection has been extended to laws that shield employees from employer discrimination. This “ministerial exception” is an affirmative defense religious organizations utilize in response to employment discrimination claims made by ministers. The Supreme Court has found that such an exception is appropriate in a case of employee termination, however circuits have split on whether the exception creates a categorical bar against all types of employment discrimination claims, including hostile work environment claims. This Contribution argues that the ministerial exception as applied to hostile work environment claims that do not involve tangible employment action should be applied sparingly on a case-by-case basis to safeguard religious organizations from unconstitutional government interference while also protecting employee rights.

Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.¹ While religious institutions have been statutorily granted exemption from religious discrimination claims,² courts have also extended exceptions to race and sex discrimination laws to these institutions. This common law exception became known as the “ministerial exception,” structured as an affirmative defense.³ This exception was borne out of a Fifth Circuit case, McClure v. Salvation Army.⁴ In that case, Mrs. McClure was a minister for the Salvation Army, and after she was terminated, sued under Title VII of the Civil Rights Act of 1965 for sex discrimination. Although the Fifth Circuit found that the Salvation Army qualified as an “employer” under Title VII, it held that state interference with the relationship between a religious organization and its ministers would violate the Religious Clauses of the First Amendment.⁵ The court cabined their opinion to protect religious organizations from a minister’s Title VII claim, as “the relationship between an organized church and its ministers is its lifeblood.”⁶

The Supreme Court has only addressed the ministerial exception in two cases. In Hosanna-Tabor, the Court affirmed the applicability of the ministerial exception in a case where the plaintiff was fired by a Lutheran Church.⁷ The Court reasoned that forcing a religious organization to either accept or reject a minister based on nondiscrimination principles “intrudes upon more than a mere employment decision.”⁸ However, the Court limited its holding to “an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her” and did not reach the question of whether “the exception bars other types of suits.”⁹

In Our Lady of Guadalupe, the Court found two elementary school teachers terminated from Roman Catholic schools to be considered “ministers” for the purposes of applying the ministerial exception to Age Discrimination in Employment Act (“ADEA”) and Americans with Disabilities Act (“ADA”) claims.¹⁰ The Court grounded its acceptance of the ministerial exception in the church autonomy doctrine, which stems from the First Amendment and protects a religious organization’s right to absolute autonomy “in matters of faith and doctrine and in closely linked matters of internal government.”¹¹

Notably, these two cases have only accepted the ministerial exception in employment discrimination cases where the religious organization has taken tangible action against the plaintiff by terminating their employment. The Court has never considered whether the ministerial exception creates a categorical bar against all claims of employment discrimination, including the more abstract hostile work environment claims. This Contribution argues that, rather than broadly extending the ministerial exception, courts should take a case-by-case approach and only apply the exception when adjudicating the claim would require also adjudicating religious doctrine or internal religious procedures.

Circuit courts have begun to decide whether the ministerial exception creates such a categorical bar, with mixed results. These cases consider hostile workplace environment claims under Title VII, which require the plaintiff to show that the workplace environment harassment was subjectively and objectively severe or pervasive enough to alter the terms and conditions of their employment, where such alteration is not limited to tangible consequences.¹² In a standard case, once a plaintiff meets this burden, the defendant is able to assert a so-called Ellerth/Faragher affirmative defense, where they must show they have a reasonable policy of preventing or mitigating harassment and the plaintiff unreasonably failed to take advantage of it.¹³

The Ninth Circuit in Bollard,¹⁴ and subsequently in Elvig,¹⁵ found that the ministerial exception did not apply to a plaintiff’s hostile work environment claims that did not result in tangible action.¹⁶ In doing so, the court reasoned that the church autonomy doctrine was not absolute and was only triggered when a defendant gave religious explanations for the alleged harassment.¹⁷ However, the Tenth and Seventh Circuits disagreed. The Tenth Circuit in Skrzypczack rejected the Ninth Circuit’s holding that “a hostile work environment claim brought by a minister does not implicate a church’s spiritual functions”; the court instead agreed with Elvig’s dissent, that such a claim may “involve gross substantive and procedural entanglement with the Church’s core functions, its polity, and its autonomy.”¹⁸ Similarly, the Seventh Circuit in Demkovich found the doctrine absolute since “[a] religious organization should not be forced to choose between proffering a religious justification or risking legal liability.”¹⁹ These decisions afford a religious organization blanket protection from even being required to verbalize their religious reason for an action, and unreasonably bars minister employees from bringing otherwise viable harassment claims.

In contrast, the Ninth Circuit’s case-by-case approach to determining whether the ministerial exception applies given the religious organization’s defense more appropriately balances both interests. The First Amendment does not automatically “shield[] the Church from its obligation to protect its employees from harassment when extending such protection would not contravene the Church’s doctrinal prerogatives or trench upon its protected ministerial decisions.”²⁰ This Contribution contends that the Ninth Circuit’s approach should be adopted by the remaining circuits.²¹

The Religious Clauses of the First Amendment simply state “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”²² Enacted in 1789, this amendment is both linguistically ambiguous²³ and void of sufficient legislative history to facilitate a clear understanding of what the Founders meant when they wrote these sixteen words.²⁴ Overall, there were 24 different drafts of the Religious Clauses before the one in the Bill of Rights was agreed upon.²⁵ The Founders believed in “freedom of conscience,” which protected the “freedom to choose, change, or discard religious beliefs, practices or associations . . . [and freedom] from official or popular coercion.”²⁶ The purpose of the separation of church and state was to keep religious organizations and governments “free and focused on their core missions of soulcraft and statecraft.”²⁷ The disestablishment of a governmentally sanctioned religion was in furtherance of this purpose,²⁸ but how far it was to go was never determined. Instead, state constitutions “formed the constitutional backbone of religious freedom in the United States for the first 150 years of the republic.”²⁹ In the eighteenth century, both the Constitutions of Pennsylvania and New Jersey protected those practicing religion from abridgment of their civil rights.³⁰ The Constitution of New York allowed freedom of religion “[p]rovided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”³¹

However, what happens when it is those within the religious organization itself who abridge an individual’s civil rights?³² Admittedly, religious liberty protections “exist[] in tension with federal and state anti-discrimination laws.”³³ Title VII recognized this by explicitly exempting religious institutions from religious discrimination claims while staying silent on the issue of national origin, race, or sex.³⁴ Title VII was created “to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees.”³⁵ Title VII therefore creates an “interest of the highest order” which can “overbalance legitimate claims to the free exercise of religion”³⁶ as long as such burdens on religious freedom are too large to be permissible. While interfering with the organization’s freedom in choosing their ministers would “rearrange the relationship between church and state,”³⁷ preventing or remedying discriminatory conduct by individuals within the organization would not. As the Fifth Circuit articulated, the ministerial relationship with the religious organization is its “lifeblood.”³⁸ But this should be viewed as a nice literary metaphor, rather than evidence of a “fundamentally distinct”³⁹ employment relationship between the minister and the religious organization. Just like a corporate lawyer represents a company and not the individual employees,⁴⁰ the Religious Clauses protect religious institutions, not the members within them.⁴¹ It is overreaching to say that the Religious Clauses protect the parts of the workplace environment that are not in furtherance of the organization’s mission. Unlike a minister’s execution of their duties or their demotion or termination from the organization, the workplace environment and any harassment within it is distinct and separate from the organization’s religious mission. There is no furtherance of the mission by or within the alleged harassment.⁴² A plaintiff’s Title VII claim alleging that harassment has created a hostile work environment, rather than a tangible action, is essentially claiming that the actions undertaken by another employee that harmed the plaintiff were unrelated to the nature of the work.⁴³ The religious organization’s liability is then determined by its response to this specific non-employment-related action. This is analogous to how tort or criminal claims are handled, where ministers are able to sue religious organizations unimpeded.⁴⁴

Even where a defendant employee alleges a religious justification for their actions, a court need not pry into whether the reason given is reasonable, but rather only that it is the real reason for the alleged actions. Determining whether the justification given is pretext does not implicate religious freedom;⁴⁵ rather, it can be argued that it protects such freedom, as using false justifications for harassing behavior can undermine a religion’s integrity in its mission. A court can then evaluate, case-by-case, whether moving forward with the claim would implicate the First Amendment. If it does not, the organization still has the ability to assert the Faragher/Ellerth defense like other employers. Arguing a religious organization’s procedure is reasonable in response to a harassment claim does not automatically create sufficient entanglement to implicate the First Amendment, contrary to the Seventh Circuit’s assertion.⁴⁶ Substantive entanglement concerns itself with governmental imposition on the way a religious organization internally functions and its beliefs about its own religious doctrine.⁴⁷ This defense does not look at the motivation behind a procedure, but the resulting actions alone; it focuses on “secular judgments about the nature and severity of the harassment and what measures, if any, were taken by the [organization] to prevent or correct it.”⁴⁸ The law does not concern itself with why a procedure was implemented, only that it could, if utilized, assist the affected employee. While courts should of course be careful not to infringe on religious freedom, the “ability of the district court to control discovery[] can prevent a wide-ranging intrusion into sensitive religious matters” without barring an action entirely.⁴⁹ Accordingly, a case-by-case factual inquiry into the exception’s applicability protects ministers against actions that are not in furtherance of a religious organization’s mission while preserving the Religious Clauses’ protections of religious organizations, and should therefore be embraced broadly by courts.

* Jessica Daneshvar is a J.D. Candidate (2023) at New York University School of Law. This Contribution does not necessarily reflect the views of the author.

1. 42 U.S.C. § 2000e-2(a) (1964).

2. 42 U.S.C. § 2000e-1(a) (1972).

3. See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 195 n.4 (2012).

4. McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972).

5. Id. at 560.

6. Id. at 558.

7. Hosanna-Tabor, 565 U.S. at 171.

8. Id. at 188.

9. Id. at 196.

10. Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2061 (2020).

11. Id.

12. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (“[T]he language of Title VII is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment.” (citations and internal quotations omitted)).

13. See Ferraro v. Kellwood Co., 440 F.3d 96, 101 (2d Cir. 2006) (“The defense comprises two elements: that (1) the employer exercised reasonable care to prevent and correct promptly any [discriminatory] harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” (internal quotations omitted) (citing Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998))).

14. Bollard v. California Province of the Soc’y of Jesus, 196 F.3d 940, 947 (9th Cir. 1999).

15. Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 963 (9th Cir. 2004), en banc hearing denied, 397 F.3d 790 (9th Cir. 2005).

16. See id. at 960–63 (“[E]ach tangible employment action Elvig alleges, implicates the [church autonomy doctrine] . . . . [The] alleged decisions [for the defendants] to engage in and permit harassment are insufficient to trigger the ministerial exception.”); Bollard, 196 F.3d at 947 (“[T]his is not a case about the Jesuit order’s choice of representative, a decision to which we would simply defer without further inquiry. . . . But, in our view, it strays too far from the rationale of the Free Exercise Clause to extend constitutional protection to this sort of disciplinary inaction . . . .”).

17. Bollard, 196 F.3d at 947 (“The Free Exercise rationales supporting an exception to Title VII are missing. The Jesuits do not offer a religious justification for the harassment Bollard alleges . . . .”).

18. Id. at 1245 (internal quotations omitted) (citing Elvig, 375 F.3d at 976 (Trott, J., dissenting)).

19. Demkovich v. St. Andrew the Apostle Parish, Calumet City, 3 F.4th 968, 982 (7th Cir. 2021) (en banc).

20. Elvig, 375 F.3d at 964.

21. See Rachel Casper, When Harassment at Work Is Harassment at Church: Hostile Work Environments and the Ministerial Exception, 25 U. Pa. J.L. & Soc. Change 11, 14 (2021) (arguing that a categorical ban on ministerial hostile work environment claims would be “catastrophic,” and both religious freedom and employee rights can be protected simultaneously through a case-by-case approach).

22. U.S. Const. amend. I.

23. See, e.g., John Witte, Jr., Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment, 47 B.Y.U. L. Rev. 1303, 1357–71 (2022) (discussing the multitude of linguistic ambiguities inherent in the Religious Clauses).

24. See id. at 1307 (discussing how there are only three pages of Congressional records on these debates, none of which include records of debates during the final stages of drafting the amendment).

25. See id. at 1350.

26. Id. at 1308–9.

27. Id. at 1312–13.

28. See id. at 1316 (explaining that the Framers believed disestablishment of religion could prevent government from mandating, favoring, or singling out for preferential treatment certain faiths or religious beliefs).

29. Id. at 1323.

30. See id. at 1319 (comparing Pennsylvania’s and New Jersey’s constitutional religious freedom protections).

31. Id. at 1322 (citing N.Y. Const. art. 38 (1777)).

32. See, e.g., Elvig, 375 F.3d at 974–75 (Trott, J., dissenting) (arguing that the plaintiff’s religious vow to the Church precluded her ability to bring a Title VII suit).

33. Meghan Golden, Piercing the Ministerial Exception: An Endeavor to Hold Religious Employers Accountable for Harassing Behavior, 56 UIC L. Rev. 73, 81 (2023).

34. See Jessica R. Vartanian, Confessions of the Church: Discriminatory Practices by Religious Employers and Justifications for A More Narrow Ministerial Exception, 40 U. Tol. L. Rev. 1049, 1056 (2009).

35. Griggs v. Duke Power Co., 401 U.S. 424, 429–30 (1971).

36. Rayburn v. Gen. Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir. 1985); see also Werft v. Desert Sw. Ann. Conf. of United Methodist Church, 377 F.3d 1099, 1102 (9th Cir. 2004) (“There is no question that elimination of discrimination—the goal of Title VII—is a compelling state interest of the highest order.” (internal quotations omitted) (citing Rayburn, 772 F.2d at 1169)).

37. See Rayburn, 772 F.2d at 1169.

38. McClure, 460 F.2d at 558.

39. Demkovich, 3 F.4th at 978.

40. See In re Grand Jury Subpoena, 274 F.3d 563, 571 (1st Cir. 2001) (“The default assumption is that the attorney only represents the corporate entity, not the individuals within the corporate sphere, and it is the individuals’ burden to dispel that presumption.”).

41. See Demokovich, 3 F.4th at 982 (“[T]he protection of the ministerial exception inures to the religious organizations, not to the individuals within them.”).

42. See id. at 990 (“[A] hostile work environment, by definition, simply is not a permissible means of exerting (constitutionally protected) ‘control’ over employees and accomplishing the mission of the business or religious organization.” (Hamilton, J., dissenting)).

43. As compared to what can be considered employment action by a religious organization, such as how the Roman Catholic Church ordains only male priests and the prohibition of hiring gay and lesbian employees in religious organizations that view homosexuality as a sin. Vartanian, supra note 34, at 1049.

44. See Casper, supra note 21, at 30 (noting how ministers are permitted to bring tort claims that do not implicate the religious organization’s control over minister selection and administration of their duties); see also Golden, supra note 33, at 100–01 (“[P]riests and other ministerial employees are not immune from criminal prosecution.”).

45. See Vartanian, supra note 34, at 1057 (distinguishing the impermissibility of finding a religious justification immoral or unreasonable from the permissible finding of pretext).

46. See Demkovich, 3 F.4th at 981 (explaining that pursing a hostile work environment claim will lead to excessive inquiry by the courts and run afoul of the Establishment Clause).

47. See Rweyemamu v. Cote, 520 F.3d 198, 208 (2d Cir. 2008) (“Entanglement may be substantive—where the government is placed in the position of deciding between competing religious views—or procedural—where the state and church are pitted against one another in a protracted legal battle.” (citations and internal quotations omitted)).

48. Bollard, 196 F.3d at 950.

49. Id.