1st Amendment Violation – Employment Discrimination – Ministerial Employees

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7^th Circuit Court of Appeals

Case Name: Sandor Demkovich v. St. Andrew the Apostle Parish, Calumet City, et al.,

Case No.: 19-2142

Officials: FLAUM, ROVNER, and HAMILTON, Circuit Judges.

Focus: 1^st Amendment Violation – Employment Discrimination – Ministerial Employees

The First Amendment prohibits enforcement of federal employment discrimination statutes against decisions of churches and other religious organizations to hire or fire their “ministerial employees.” Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020); Hosanna–Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012). This interlocutory appeal presents a question about extending this exemption beyond hiring and firing decisions: should the constitutional exemption be extended to categorically bar all hostile environment discrimination claims by ministerial employees, even where there is no challenge to tangible employment actions like hiring and firing? Our answer is no.

In the United States legal system, encounters between churches and civil law are always fraught. Such cases, including this one, can pose a tension between two valued legal goods: constitutional protection of the freedom of religion and other legal rights. In such cases, the courts have a long history of balancing and compromising to protect religious freedom while enforcing other important legal rights. The problem here is particularly sensitive, involving tension between the freedom of religion and employees’ rights to be free from invidious discrimination, also a compelling governmental interest. E.g., New York State Club Ass’n v. City of New York, 487 U.S. 1, 14 n.5 (1988). The problem is not so sensitive as to preclude line-drawing altogether.

Defendants urge us to bar all statutory hostile environment claims by ministerial employees. Recognizing the history of balance and compromise, defendants acknowledge that the First Amendment does not bar those same ministerial employees from bringing contract and tort claims against their employers and supervisors. Nor does the First Amendment bar enforcement of criminal laws arising from mistreatment of those same employees. Plaintiff argues that churches do not need, as a matter of constitutional law, complete protection from statutory harassment claims so long as they do not challenge any tangible employment actions used to select and control ministerial employees.

The right balance is to bar claims by ministerial employees challenging tangible employment actions but to allow hostile environment claims that do not challenge tangible employment actions. Religious employers’ control over tangible employment actions—hiring, firing, promoting, deciding compensation, job assignments, and the like—provides ample protection for the free exercise of religion. The First Amendment does not require complete immunity from the sometimes horrific abuse that defendants’ bright-line rule would protect.

Sensitive issues of potential entanglement, to use the language of Establishment Clause jurisprudence, lie ahead. We are not persuaded, however, that they cannot possibly be managed in a balanced way that protects both religious liberty and the rights of employees to be free from discriminatorily hostile work environments. In so holding, we join the Ninth Circuit, see Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999); Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004), and depart from the Tenth, see Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 2010).

We answer the certified question in the NEGATIVE. Accordingly, we AFFIRM the decision of the district court denying dismissal of the disability claim, and REVERSE its decision dismissing the sexual orientation claim. The case is REMANDED for further proceedings consistent with this opinion.

Affirmed in part. Reversed and remanded in part.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.