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Music Director Barred from Suing Catholic Church For Hostile Environment Harassment Under Anti-Discrimination Laws

Posted on: July 11th, 2021 by Art Leonard No Comments

A ten-judge bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 9 by a vote of 7-3 that the religion clauses of the 1st Amendment of the U.S. Constitution give churches total immunity from hostile environment claims by their ministerial employees.  Demkovich v. St. Andrew the Apostle Parish, 2021 U.S. App. LEXIS 20410, 2021 WL 2880232 (7th Cir. en banc).

Rejecting a decision by a three-judge panel of the court that Sandor Demkovich, the gay former Music and Choir Director and Organist at St. Andrew the Apostle Parish in Calumet City, Illinois, could bring a hostile environment claim against the church under the Civil Rights Act of 1964 and the Americans with Disabilities Act, the en banc court held that allowing such claims would violate the religious autonomy of the church protected by the religion clauses of the 1st Amendment.  Judge Michael Brennan, appointed by President Donald Trump, wrote the court’s opinion.

The 7th Circuit is among the most Republican-dominated of the federal appeals courts.  Of the eleven active members of the Court, eight were appointed by Republican presidents (four by Trump).  President Joseph Biden’s first appointee to the court, Judge Candace Jackson-Akiwumi, was only recently confirmed by the Senate and did not participate in this case.  One of President Trump’s appointees recused himself, and a senior (retired) judge appointed by Ronald Reagan, Joel Flaum, who was the dissenter on the three-judge panel, was entitled under 7th Circuit rules to participate.

Judge David Hamilton, appointed by Barack Obama, wrote the panel decision and the dissenting opinion, joined by Judge Ilana Rovner, a moderate appointed by George H. W. Bush in 1992, who was the other member of the three-judge panel majority.   Judge Diane Wood, appointed by Bill Clinton, joined the dissent.

Demkovich was hired in September 2012.  His supervisor was Reverend Jacek Dada, a priest who is the church’s Pastor.  According to Demkovich, who has various physical disabilities, Dada was constantly subjecting him to verbal abuse because of his sexual orientation and his disabilities, adversely affecting his physical and mental health.  In 2014, after Illinois had legislated to allow same-sex marriages, Demkovich let the church know that he planned to marry his same-sex partner.  Dada told him that he had to resign from the church because his marriage would violate Catholic doctrine.  When Demkovich refused to resign, Dada fired him.

Demkovich sued the St. Andrew church and the Archdiocese of Chicago under Title VII of the Civil Rights Act and the Americans with Disabilities Act, claiming that his discharge was unlawful discrimination because of his sexual orientation and disabilities.  The church moved to dismiss the case, citing the “ministerial exception” under the 1st Amendment, and the district court granted the motion, determining that Demkovich was a “ministerial employee” under the Supreme Court’s 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171.  In Hosanna-Tabor, an ADA case involving a school teacher, the Supreme Court ruled that it would violate the 1st Amendment to allow a ministerial employee to challenge their discharge in a federal court, because religious institutions have an absolute right under the Free Exercise Clause to decide whom to employ as ministers without any interference from the courts.  Under Hosanna-Tabor, the district court’s decision to dismiss Demkovich’s unlawful discharge claims was undoubtedly correct.

Demkovich came back to court with an amended complaint, alleging that he was unlawfully subjected to a hostile environment by Dada, his supervisor, because of his sexual orientation and disabilities.  Again, the church invoked the “ministerial exception” and moved to dismiss. District Judge Edmond E. Chang decided that Hosanna-Tabor, a discharge case, did not necessarily apply to a hostile environment claim, drawing a distinction, as the San Francisco-based 9th Circuit Court of Appeals had previously done in a similar situation, between tangible and intangible employment actions, finding that the exception applied only to the former.

Judge Chang held that the proper approach in a hostile environment case was to balance the church’s religious freedom concerns with the employee’s statutory anti-discrimination rights, taking into account the nature of the employer’s conduct and the reasons for it.  Based on this “balancing of rights,” Chang dismissed the sexual orientation claim but refused to dismiss the disability claim, distinguishing between hostility that could be motivated by religious doctrine and hostility that had no basis in religious doctrine.  Demkovich v. St. Andrew, 343 F. Supp. 3d 772 (N.D. Ill. 2018).

But Chang then certified a request by the church to have the court of appeals consider the issue before the case went further.  Last summer, the Supreme Court issued another ministerial exception decision, Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), which took a broader view of the definition of a ministerial employee in the context of religious schools. This case also involved two teacher discharges, allegedly in violation of the ADA and the Age Discrimination in Employment Act.

The three-judge 7th Circuit panel ruled in 2020 that Demkovich should be allowed to litigate both of his hostile environment claims, finding that the reasoning behind Hosanna-Tabor did not require a dismissal in a case such as this, following the lead of the 9th Circuit.  See 973 F. 3d 718 (7th Cir. 2020).  The church then petitioned the 7th Circuit for rehearing en banc.  The 7th Circuit vacated the panel decision, heard arguments before a panel of 10 judges earlier this year, and issued its July 9 decision holding that Judge Chang should have dismissed the case completely.

In his opinion for the court, Judge Brennan, while acknowledging that the Supreme Court’s two precedents, Hosanna-Tabor and Guadalupe, both involved discharges of religious school teachers, found various statements in those decisions that he said could be construed to have embraced more general principles that the courts should not be interfering in any personnel-related disputes between religious institutions and their ministerial employees.  He drew two “principles” from the Supreme Court’s decisions: “The protected interest of a religious organization in its ministers covers the entire employment relationship, including hiring, firing, and supervising in between.  Second, we cannot lose sight of the harms – civil intrusion and excessive entanglement – that the ministerial exception prevents.  Especially in matters of ministerial employment, the First Amendment thus ‘gives special solicitude to the rights of religious organizations,’” quoting from Hosanna-Tabor.

Brennan pointed out that in a hostile environment case, discovery could be wide-ranging, and would involve an inquiry into the reasons why, in this case, the priest in charge was treating the music director – both ministerial employees because of the role they play in the religious life of the church – in a particular way. To the majority of the en banc court, this would raise the specter of judicial interference in matters of religion, regardless whether the claim arose under Title VII or the ADA.  The court found that a central theme of the Supreme Court and lower federal court rulings involving discrimination claims by ministerial employees was that churches must enjoy autonomy in making personnel decisions about their ministerial employees, whether they could be characterized as tangible or intangible actions.

“Demkovich’s hostile work environment claims challenge a religious organization’s independence in its ministerial relationships,” wrote Brennan.  “A judgement against the church would legally recognize that it fostered a discriminatory employment atmosphere for one of its ministers.”  While the employment discrimination statutes have been interpreted to hold employers liable for fostering a discriminatory employment atmosphere, Brennan wrote that the Supreme Court’s ministerial exception cases “teach that ministerial employment is fundamentally different.”  And, he continued, “Just as a religious organization ‘must be free to choose those who will guide it on its way,’ so too must those guides be free to decide how to lead a religious organization on that journey,” once again quoting from the Hosanna-Tabor opinion.

Judge Hamilton’s dissent began by noting that the Supreme Court’s ministerial exception cases all involved discharge decisions, not hostile environment claims, and that federal circuit court and state courts are “split on the question before us,” noting not only the 9th Circuit’s prior rulings, but also several district court decisions.  He insisted that “the majority’s rule draws an odd, arbitrary line in constitutional law,” and argued that “the line between tangible employment actions and hostile environment fits the purposes of the ministerial exception.”

He accused the majority of departing “from a long practice of carefully balancing civil law and religious liberty,” and pointed out the severe consequence of holding that religious employers would be immune from any liability for mistreating their employees under anti-discrimination laws.  “We know that people who exercise authority within churches can be all too human,” he wrote.  “Casebooks and news reports tell us of cases of sexual harassment by ministers, sometimes directed at parishioners, sometimes at non-ministerial employees, and sometimes at other (typically less senior) ministers.  In briefs and oral argument, defendants have acknowledged that a religious employer could be held civilly liable for a supervisor’s criminal or tortious conduct toward a ministerial employee. . .  Such cases would not violate the supervisor’s or the employer’s First Amendment rights.  If criminal or tort cases do not, then it is hard to see why a statutory case based on the same conduct would necessarily violate the First Amendment, whether or not the supervisor claims a religious motive.”

“The hostile environment claims before us present a conflict between two of the highest values in our society and legal system: religious liberty and non-discrimination in employment,” wrote Hamilton.  “The Supreme Court has not answered this question, nor does the First Amendment itself.  Circuits and state courts are divided.  For the reasons explained above and in the panel majority, I submit that the majority’s absolute bar to statutory hostile environment claims by ministerial employees is not necessary to protect religious liberty or to serve the purposes of the ministerial exception.”

The next step for Demkovich could be to file a petition for review with the Supreme Court.  Depending on the details of his factual claims, he might try to pursue a state court tort suit for intentional infliction of emotional distress against Jacek Dada individually, but it is possible that it would be barred by the state statute of limitations, since all the conduct at issue took place in 2012-2014.

 

7th Circuit Ruling Creates Federal Precedent to Protect Older Gays in Residential Facilities

Posted on: August 27th, 2018 by Art Leonard No Comments

A unanimous three-judge panel of the U.S. Court of Appeals for the 7th Circuit ruled on August 27 that a lesbian resident of a rental facility for seniors in Illinois may seek to hold the management of the facility accountable for severe harassment against her by other residents due to her sexual orientation.  The ruling reversed a decision by U.S. District Judge Samuel Der-Yeghiayan, a George W. Bush appointee, to dismiss her case.  The court of appeals decision marks an important appellate precedent for the protection of older LGBT people living in residential facilities.  The case is Wetzel v Glen St. Andrew Living Community, LLC, Case No. 17-1322 (7th Cir., Aug. 27, 2018).

Marsha Wetzel moved into Glen St. Andrew Living Community after her partner of 30 years died. Under the Tenant’s Agreement she signed with the facility, she is entitled to a private apartment, three meals daily served in a central location, access to a community room, and use of laundry facilities.  The agreement requires her (and all other tenants under their agreements) to refrain from “activity that [St. Andrew] determines unreasonably interferes with the peaceful use and enjoyment of the community by other tenants” or that is “a direct threat to the health and safety of other individuals.”  The Agreement also authorizes the facility to bring eviction proceedings against a tenant who violates the Agreement.

Wetzel was not closeted, speaking openly with staff and other residents about her sexual orientation when she moved in. “She was met with intolerance from many of them,” wrote Chief Judge Diane Wood in summarizing the allegations in Wetzel’s Complaint.  For purposes of ruling on the facility’s motion to dismiss her case, the court’s role is to accept Wetzel’s allegations as true and to decide whether those allegations, if proved at trial, would constitute a violation of her rights under the Fair Housing Act, which forbids discrimination because of sex.

Judge Wood’s summary of the Complaint makes horrific reading. “Beginning a few months after Wetzel moved to St. Andrew and continuing at least until she filed this suit (a 15-month period), residents repeatedly berated her for being a ‘fucking dyke,’ ‘fucking faggot,’ and ‘homosexual bitch.’  One resident, Robert Herr, told Wetzel that he reveled in the memory of the Orlando massacre at the Pulse nightclub, derided Wetzel’s son for being a ‘homosexual-raised faggot,’ and threatened to ‘rip [Wetzel’s] tits off.’  Herr was the primary, but not sole, culprit.  Elizabeth Rivera told Wetzel that ‘homosexuals will burn in hell.’”

The Complaint also describes incidents of physical abuse, focused on knocking Wetzel off the motorized scooter she depends upon to get around, spitting at her, and striking her from behind accompanied by anti-gay epithets.

When she complained to the staff, there was a “brief respite,” but soon the misconduct continued. Indeed, Judge Wood wrote, “the management defendants otherwise were apathetic.  They told Wetzel not to worry about the harassment, dismissed the conduct as accidental, denied Wetzel’s accounts, and branded her a liar.”  Furthermore, Wetzel alleges, they retaliated against her by relegating her “to a less desirable dining room location” after she notified them about one incident of physical harassment by another resident, “barred her from the lobby except to get coffee” and “halted her cleaning services, thus depriving her of access to areas specifically protected in the Agreement.”  They also false accused her of smoking in her room and one St. Andrews worker “slapped her across the face” when she denied having violated the no-smoking rule.

In what sounds like a transparent attempt to set her up for an eviction for non-payment, they failed to send her the customary rent-due notice sent to all tenants, but she remembered to pay on time, “but she had to pry a receipt from management.”

As a result of these management responses, Wetzel sharply curtailed her activities outside her room, staying away from common spaces including the dining room, and finally, fed up with this mistreatment, filed this lawsuit, alleging violations of the FHA as well as state laws. (Illinois laws forbid sexual orientation discrimination in housing and public accommodations.)

The facility did not argue in defense that the FHA does not ban sexual orientation discrimination. They could hardly raise such an argument in the 7th Circuit, because that court was the first appellate court to rule that sexual orientation claims are a subset of sex discrimination claims, under the similar anti-discrimination provisions of Title VII of the Civil Rights Act of 1964.

Instead, the defendant argued that the landlord cannot be held liable for discrimination by other tenants under the FHA without a showing of discriminatory animus by the landlord. Furthermore, it argued that FHA deals with refusals to rent, and does not cover “post-acquisition harassment claims.”  In other words, as Judge Wood explained, once an apartment has been rented, the defendant argued that the FHA is no longer relevant to claims brought by “a tenant already occupying her home.”  The defendant countered Wetzel’s retaliation claim by arguing, once again, that it lacked an allegation that defendants were motivated by discriminatory animus.

District Judge Der-Yeghiayan agreed with the defendants’ FHA arguments and dismissed the case. The dismissal of the FHA claim removed the basis for federal jurisdiction, and the judge declined to keep the state claims alive, dismissing them for lack of jurisdiction, although federal courts do have discretion to continue to consider state law claims in such cases.

Writing for the appeals court, Judge Wood relied on cases of workplace harassment decided under Title VII for a standard to apply to a harassment case brought under the FHA, for which there was no precedent in the 7th Circuit.  “The harassment Wetzel describes plausibly can be viewed as both severe and pervasive,” she wrote, referring to the Title VII standard.  “For 15 months, she was bombarded with threats, slurs, derisive comments about her family, taunts about a deadly massacre, physical violence, and spit.  The defendants dismiss this litany of abuse as no more than ordinary ‘squabbles’ and ‘bickering’ between ‘irascible,’ ‘crotchety senior resident[s].’  A jury would be entitled to see the story otherwise.”

The question for the court was whether there was a basis to impute liability to St. Andrew for the hostile housing environment, a question new for the 7th Circuit.  Again, the court borrowed from principles established under another statute, this time focusing more on Title IX of the Education Amendments Act, under which schools have been held liable for harassment of students by other students, when the harassment was brought to the attention of school authorities and they failed to take appropriate steps to assure that the harassed students were not denied equal educational opportunity because of their sex.

The question was whether the facility management had “actual knowledge of the severe harassment Wetzel was enduring and whether they were deliberately indifferent to it. If so,” wrote the judge, “they subjected Wetzel to conduct that the FHA forbids.”  The court rejected St. Andrew’s argument that the landlord-tenant relationship is so different from the school-student relationship as to make such a test inappropriate.  The court, finding that the defendant had inaccurately described the court’s holding, responded: “We have said only that the duty not to discriminate in housing conditions encompasses the duty not to permit known harassment on protected grounds. The landlord does have responsibility over the common areas of the building, which is where the majority of Wetzel’s harassment took place.  And the incidents within her apartment occurred precisely because the landlord was exercising a right to enter.”

The court rejected St. Andrew’s argument that its ruling would unfairly hold St. Andrew liable for actions it was “incapable of addressing,” pointing out that the tenant Agreement signed by all residents imposed obligations on tenants not to engage in conduct that would constitute a “direct threat to the health and safety of other individuals” and to refrain from conduct that would “unreasonably” interfere with “the peaceful use and enjoyment of the community by other tenants.” This is, on its face, directly applicable to the conduct of other residents directed at Wetzel.  And the Agreement gives the facility the right to seek to evict tenants who violate these rules.  Yet, according to Wetzel’s Complaint, the facility took action against her for complaining rather than against her harassers for their misconduct.

The court also noted a rule published by the Department of Housing and Urban Development (HUD) in 2016, providing that a landlord could be held liable under the FHA for failing to “take prompt action to correct and end a discriminatory housing practice by a third party” (such as a fellow resident in a rental building) if the landlord “knew or should have known of the discriminatory conduct and had the power to correct it.” The court said it did not need to rely on this rule, however, stating that “it is enough for present purposes to say that nothing in the HUD rule standings in the way of recognizing Wetzel’s theory” for landlord liability in her case.

The court also discounted St. Andrew’s argument that this case is just about “bad manners” by some residents. “It is important,” wrote Wood, “to recognize that the facts Wetzel has presented (which we must accept at this stage) go far beyond mere rudeness, all the way to direct physical violence.”  She noted that under Title VII courts have routinely had to distinguish between hostile environment harassment and mere incivility.

The court also decisively rejected St. Andrew’s claim that the FHA anti-discrimination provision does not apply once the apartment is leased to the tenant. The statute bans discrimination regarding “services or facilities,” and the court pointed out that “few ‘services or facilities’ are provided prior to the point of sale or rental; far more attach to a resident’s occupancy.”  In this case, Wetzel’s allegations included her virtual exclusion from the enjoyment of the common areas of the building, and denial of certain services to which she was entitled under the tenant Agreement.  “At a minimum, then,” wrote the court, “Wetzel has a cognizable post-acquisition claim because discrimination affected the provision of services and facilities connected to her rental.  Beyond that, the discrimination diminished the privileges of Wetzel’s rental.”

The court also rejected St. Andrew’s argument, which the district court had accepted, that the anti-retaliation provision of the statute required proof of the landlord’s discriminatory intent. “Indeed,” wrote Judge Wood, “if we were to read the FHA’s anti-retaliation provision to require that a plaintiff allege discriminatory animus, it would be an anomaly.  Like all anti-retaliation provisions, it provides protections not because of who people are, but because of what they do.”  The focus, thus, is on whether the landlord takes some adverse action after a tenant complains about violation of her rights under the FHA, not whether the landlord is biased against somebody because she is a lesbian.

In sending the case back to the district court, the Court of Appeals revived Wetzel’s FHA claim and also directed to the court to “reinstate the state-law claims that were dismissed for want of jurisdiction.”

Wetzel is represented by Lambda Legal and cooperating attorneys from Foley & Lardner LLP.