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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.

 

Illinois Federal Court Allows Discharged Gay Organist to Pursue ADA Hostile Environment Claim against Archdiocese of Chicago

Posted on: October 2nd, 2018 by Art Leonard No Comments

U.S. District Judge Edmond E. Chang ruled on September 30 that Sandor Demokovich, a church organist and choir director who was fired from his position at St. Andrew the Apostle Parish, Calumet City, in the Archdiocese of Chicago, after marrying his same-sex partner, may pursue a hostile environment disability harassment claim against his former employers under the Americans with Disabilities Act (ADA). Demkovich v. St. Andrew the Apostle Parish, 2018 U.S. Dist. LEXIS 168584 (N.D. Ill.).  In previous motion practice, Judge Chang found that Title VII and state and local antidiscrimination claims against the defendants for discriminatory discharge because of his sexual orientation and marital status are barred by the “ministerial exception” recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  In this ruling, he found that claims of hostile environment harassment because of the plaintiff’s sex, sexual orientation and marital status are also barred, due to Free Exercise and Establishment Clause concerns.

Demkovich began working as Music Director, Choir Director and Organist at St. Andrew in September 2012, and was fired in September 2014. His immediate supervisor, Reverend Jacek Dada, St. Andrew’s pastor, knew that Demkovich was gay and that he was engaged to another man, and, according to Demkovich’s allegations, subjected him to abusive and harassing behavior, which built to a crescendo as the date of Demkovich’s impending wedding approached.  Witnesses averred that Dada told them he would fire Demkovich if Demkovich married, and he was true to his word.  In addition, Demkovich, who had an obvious weight problem traceable to his struggles with diabetes, also suffered under Dada’s unwelcome comments about his weight and medical condition.  “Reverend Dada made harassing remarks about Demkovich’s weight, often urging him to walk Dada’s dog to lose weight, and telling Demkovich that he needed to lose weight because Dada did not want to preach at his funeral,” wrote Chang, summarizing the allegations in the complaint.  “Dada also repeatedly complained about the cost of keeping Demkovich on the parish’s health and dental insurance plans because of his weight and diabetes.  In 2012, when Demkovich declined a dinner invitation from Dada because he did not have his insulin with him, Dada asked if Demkovich was diabetic and told him that he needed to ‘get his weight under control’ to help eliminate his need for insulin.”

Being an organist and choir director seems to be a profession that attracts gay men, to judge by the number of cases we have seen over the years, including some of the earliest sexual orientation discrimination cases. Lawsuits challenging dismissals of gay church organists and choir directors almost invariably founder on the courts’ solicitude for defenses based on the First Amendment protection of the decisions by churches about whom to employ in positions directly implicated in carrying out their religious mission, and there is little disagreement among those judges who have faced the question that a church organist and choir director plays a ministerial role in the life of a church.  As to that, Judge Chang found that Demkovich’s concession that his is a “minister” for this purpose precludes his pursuit of wrongful discharge discrimination claims, whether premised on Title VII and the ADA or similar state or local laws, based on the Supreme Court’s determination that the government should never be involved in telling a church whom to employ as a minister.

However, Chang found, the Supreme Court’s Hosanna-Tabor case was a discharge case, and can be read to be limited to discrimination claims with respect to tangible employment issues, such as hiring, promotion, assignments, compensation. The Court spoke in that case about the right of a church to decide whom to employ as its minister, but not necessarily how that individual would be treated based on characteristics other than their religion, as to which Title VII provides for an express exception allowing religious institution employers to establish religious criteria for employment.  On the other hand, he found, one must resort to circuit court precedent to determine whether the ministerial exemption should also bar hostile environment harassment claims by a ministerial employee against a religious employer.  Since these claims involve “intangible” harms, he concluded that it was possible that the ministerial exception does not apply to them.  Instead, on a case-by-case basis, the court would have to determine whether allowing a hostile environment claim to go forward would raise significant 1st Amendment free exercise or establishment concerns.

As to this, he concluded, given the Catholic Church’s well-known public opposition to same-sex marriage, alleging a hostile environment based mainly on adverse comments by a supervisor about an employee’s proposed same-sex marriage would intrude unduly into the 1st Amendment rights of the church, thus ruling out that claim as well. “Although the ministerial exception does not bar Demkovich’s hostile-environment claims (to repeat, he does not challenge a tangible employment action), the Court concludes that litigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion.”  He noted that defendants offered a “religious justification for the alleged derogatory remarks and other harassment: they ‘reflect the pastor’s opposition, in accord with Catholic doctrine, to same sex marriage,’” he wrote.

“Whether Catholicism in fact dictates opposition to same-sex marriage is not subject to court scrutiny,” wrote the judge, quoting 7th Circuit authority to the effect that “once the court has satisfied itself that the authorized religious body has resolve dthe issue, the court may not question the resolution.”  Furthermore, he observed, the Church’s “official opposition to gay marriage is commonly known (nor does Demkovich question it), and there is no reason to question the sincerity of the Archdiocese’s belief that the opposition is dictated by Church doctrine.”  Also, Demkovich’s ministerial role “weighs in favor of more protection of the Church under the First Amendment,” he continued, noting that “the church has absolute say in who will be its ministers.”  Chang pointed out several different ways in which allowing this hostile environment claim to proceed would raise Establishment Clause as well as Free Exercise Clause problems.

On the other hand, found Chang, there seemed no salient 1st Amendment concern in allowing Demkovich to pursue a hostile environment disability claim under the ADA, assuming that hostile environment claims are actionable under that statute – an issue not yet addressed by the Supreme Court.  Although the Church’s ministerial exemption bars suing it about a decision concerning whom to employ as a minister, wrote Chang, it was hard to discern a First Amendment right of the Church that would be abridged by questioning the disability-related hostile treatment of a minister whom the Church was willing to employee.

He wrote, “The Court first notes that the Seventh Circuit has not yet expressly decided that the ADA ever permits a hostile work environment claim. Instead, the Seventh Circuit has assumed – in both published and unpublished decisions – that there is such a claim under the ADA.  In light of the similarity between Title VII and the ADA in protection against discriminatory workplace conditions, this Court too assumes that the ADA does provide for hostile work environment claims.  When analyzing hostile work environment claims under the ADA, the Seventh Circuit has ‘assumed that the standards for proving such a claim would mirror those established for claims of hostile work environment under Title VII.”

Significantly, he noted, the Archdiocese “offers no religious explanation for the alleged disability discrimination. The Archdiocese justifies [Rev. Dada]’s comments as ‘reflecting the pastor’s subjective views and/or evaluation of Plaintiff’s fitness for his position as a minister.’  But this is not a religious justification based on any Church doctrine or belief, at least as proffered so far by the defense.  So the disability claim does not pose the same dangers to religious entanglement as the sex, sexual orientation, and marital-status claims.  Nothing in discovery should impose on religious doctrine on this claim.  Rather, the inquiry will make secular judgments on the nature and severity of the harassment (and whether it even happened), as well as what, if anything, the Archdiocese did to prevent or correct it.  The Religious Clauses do not bar Demkovich from pursuing the hostile-environment claims based on disability.”

The Archdiocese had also argued that “the alleged conduct was not severe or pervasive, was not physically threatening, and is not alleged to have altered the terms and conditions of Plaintiff’s employment,” but Chang noted that “this case is at the pleading stage, so Demkovich need not plead more facts than necessary to give the Archdiocese ‘fair notice of his claims and the grounds upon which those claims rest, and the details in his Amended Complaint present a story that holds together.’”  Judge Chang found that the allegations thus far were sufficient to place a hostile environment claim in issue for purposes of defeating a motion to dismiss.

Thus, the bottom line is that defendants’ motion to dismiss was granted as to the hostile environment claims based on sex, sexual orientation, and marital status, but denied as to the claims based on disability.”

Demkovich is represented by Kristina Buchthal Regal of Lavelle Law, Ltd., Palatine, IL.