Ministers Have No Protection Against Wrongful Termination Clergy Beware, The Free Exercise Snare. Churches Can Say, “You’re Here to Stay.” Then After a Season, Fire for Any Reason. - Sharonrose Cannistraci, Esq. -

THE FIRST AMENDMENT PROHIBITS COURTS FROM INTERFERING WITH CLERGY EMPLOYMENT DISPUTES

The First Amendment of the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The Free Exercise Clause has long been interpreted to mean that religious institutions have the right to hire, discipline, or fire clergy without government interference because autonomy from court review is essential to the free exercise of religion. The reasoning behind this longstanding rule has been expressed in various ways by different courts:

Consequently, courts have forbidden themselves from judging employment disputes between religious organizations and their clergy employees. Thus, while churches are not subject to the state’s judicial oversight and regulation in employment matters regarding clergy, this policy means ministers do not have the legal protections accorded other employees against discrimination or wrongful termination.

THE MINISTERIAL EXCEPTION

The preservation of the free exercise of religion is so important a principle as to overshadow any inequities that may result from an employment wrong done to a minister. Courts will not attempt to right even severe wrongs related to the hiring, firing and discipline of clergy, even though the minister is without a remedy. Consequently, one who enters the clergy forfeits the protection of the civil authorities in terms of job rights. This has come to be known as the “ministerial exception,” so named because clergy employees present an exception to the authority of civil courts to resolve employment disputes. This is true even where the employment decision is arbitrary, discriminatory, or in violation of California’s Fair Employment and Housing Act (FEHA).

The ministerial exception was first observed in a 1972 civil rights action brought by a Salvation Army officer (minister) who claimed she had received a lower salary and fewer benefits than male officers, and that she had been discharged in retaliation for her complaints about gender discrimination. The court held that applying Title VII to the relationship of a church and its minister violated the religion clauses of the First Amendment. Since then, the ministerial exception has been upheld with few exceptions, and has also been applied to various types of church-related institutions that have a substantial religious character.

CLERGY EMPLOYMENT DECISIONS ARE PROTECTED REGARDLESS OF CHURCH’S MOTIVE

In 1999, an ordained campus chaplain filed suit against her employer, a religious university, claiming a modification of her employment violated the FEHA, claiming sex discrimination and unjust retaliation. The chaplain claimed her hours and benefits were reduced in retaliation for reporting two male faculty members who were sexually harassing female students. The appellate court held that the establishment and free exercise of religion clauses of the First Amendment prevented judicial review of the modification of the chaplain’s employment, even where there was a potential violation of FEHA. It did not matter that the decision to modify the chaplain’s terms of employment was made by non-clerical staff, nor that the issue was economic rather than pastoral in nature. To review this decision, the court would have to inquire into the good faith of the university’s decision and judge the legitimacy of the university’s ministerial needs. This would constitute an excessive entanglement of state government into religious affairs. Citing numerous cases, the court restated the hard and fast rule of law that applies to clergy employment decisions:

THE MINISTERIAL EXCEPTION APPLIES TO RELIGIOUS SCHOOLS, HOSPITALS, CHURCHES, ETC.

Cases in which court adopted and/or expanded the ministerial exception by ruling the clergy’s case was not reviewable by a court include the following:

(1) Church’s termination of probationary status of a minister-in-training and refusal to appoint her as an elder.
(2) Catholic university’s withholding of tenure to an employee in canon law department.
(3) Church-affiliated hospital’s discharge of chaplain who alleged age and sex discrimination.
(4) Archdiocesan high school’s alleged age discrimination against theology teacher.
(5) Church’s denial of pastoral position to person alleging sexual and racial discrimination.
(6) Church’s firing of minister who sued for wrongful termination and breach of implied covenant of good faith.
(7) Minister sued for sexual misconduct in role as marital counselor (which is reviewable by courts) could not counter sue church for breach of contract and wrongful discharge (which was not reviewable).

NARROW EXCEPTIONS THAT MAY GIVE SOME PROTECTION TO CLERGY

 In 1990, a Federal Appeals Court affirmed the pre-trial dismissal of a clergy’s age discrimination claim as this claim was not reviewable, but ruled the clergy’s claim for breach of contract could survive a pre-trial motion to dismiss. The court stated that churches are free to “burden” their activities with contracts and that such contracts are enforceable in civil court. The Federal Appeals Court did not rule on the merits of the minister’s contract claim. However, we know of a least one California court that has reached a different conclusion in dismissing a clergy’s employment claim for breach of contract.

In 2000, a clergyman witnessed and reported an incident of child abuse by superior clergyman. Under California law the clergyman was required to report the incident. The reporting clergyman successfully sued for intentional infliction of emotional distress, claiming the superior clergyman retaliated against him for reporting the incident. A California Appeals Court found that the state had a compelling interest in identifying suspected child abuse, which interest superceded any constitutional prohibition against courts reviewing the clergyman’s claim. Further, the commission of a harmful act in the name of, or under the auspices of a church, does not lessen its culpability.

NON-CLERGY EMPLOYEES ARE PROTECTED BY EMPLOYMENT AND DISCRIMINATION LAWS

The ministerial exception and First Amendment protection of the church only applies to employees whose duties go to the heart of the religious institution’s function. Whether an employee falls within the ministerial exception is not necessarily determined by an employee’s job title. If the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision of a religious ritual and/or worship, the employee will be considered “clergy” and the ministerial exception will apply. However, with respect to the hiring, disciplining and firing of non-clergy employees, with a few exceptions, churches are for the most part subject to the employment laws that govern a secular business treatment of employees. Examples of employees who the courts have ruled are not “clergy” include administrative staff, secular faculty members, a church school librarian, and an editorial secretary of a church publishing house. These employees were not clergy and thus employment decisions were not given First Amendment protection. However, First Amendment protection is not as clear when the church’s employment decision involves a staff member whose mixed job duties include both administrative and ministerial or worship functions. Keep in mind that an employee is not considered to be clergy simply because a requirement of employment includes maintaining a religious lifestyle or being an example to others.

HOW TO PROTECT BOTH THE CHURCH AND ITS MINISTERS

A religious institution can be fairly confident that its employment decisions related to clergy will not be subject to court review, except in a rare case when there is a compelling state interest or possibly where a minister has an enforceable employment contract with the church. The state of the law is still unclear as to which, if any, clauses in a clergy’s employment contract would be enforceable under Californian law. We assume at a minimum that the employment contract would have to be subject to interpretation or enforcement without unduly entangling the court in matters of church government or an ecclesiastical inquiry or dispute. It is important to note that the ministerial exception does not guarantee that a church will not be sued, but rather that courts will likely dismiss a clergy’s employment claim except in a very rare case.

This does not mean that churches are free to discriminate, retaliate or wrongfully terminate clergy members with impunity. A church should comply with its own corporate bylaws and employee policies and procedures to avoid a possible church split, bad publicity, or a legal fight over whether the allegedly improperly terminated pastor is rightfully still in office and /or in control of church property and funds. It is well established that courts have power to determine church property rights. Courts have been known to rule upon which party has the right to possession of church property or funds.

The best way to protect the church and its ministers is to have clear policies and procedures as to who holds the power to hire, discipline, and fire clergy. Many church employment manuals state that all employees (clergy and non-clergy alike) are employed “at-will”. This reflects standard California law, unless there is a contract to the contrary, which law allows the church the right to terminate employment for any reason or no reason. However, with respect to non-clergy employees the church may be sued if it fires or refuses to hire for a wrongful reason, such as racial or age discrimination. In a rare instance, a church may wish to enter into an employment contract with a particular employee that it wishes to retain. In that instance, we recommend that legal counsel be consulted so that the church is advised of the legal ramifications of potentially giving up its First Amendment Rights and to help ensure that the wording of the contract reflects the intent of the parties.

Protect the Church is sponsored by Christian attorneys and CPA's to provide periodic updates of the laws and legal and accounting issues of general interest to religious organizations. This article is not to be construed as specific legal advice or as a substitute for legal counsel regarding your case. Any ideas or opinions expressed herein should not be implemented without consulting an attorney or CPA familiar with your situation. To learn more about legal and accounting resources for ministries log onto our website at www.protectthechurch.org. If you have a specific legal issue or problem, you may contact Sharonrose Cannistraci, Esq. at 408.297.5400 ext. 206 or via e-mail.  If you have a tax or financial question, you may contact Joshua at his consulting firm Sozo Consulting at  650.906.7272.

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