196 F.3d 940 (9th Cir. 1999), 98-16194, Bollard v. California Province

Docket Nº:98-16194
Citation:196 F.3d 940
Party Name:JOHN BOLLARD, Plaintiff-Appellant, v. THE CALIFORNIA PROVINCE OF THE SOCIETY OF JESUS; THE MARYLAND PROVINCE OF THE SOCIETY OF JESUS; THE OREGON PROVINCE OF THE SOCIETY OF JESUS; THE JESUIT CONFERENCE; FATHER JOHN PRIVETT, S.J.; FATHER ANDREW SOTELO, S.J.; FATHER THOMAS GLEESON, S.J.; FATHER ANTON HARRIS, S.J., Defendants-Appellees.
Case Date:December 01, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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196 F.3d 940 (9th Cir. 1999)

JOHN BOLLARD, Plaintiff-Appellant,

v.

THE CALIFORNIA PROVINCE OF THE SOCIETY OF JESUS; THE MARYLAND PROVINCE OF THE SOCIETY OF JESUS; THE OREGON PROVINCE OF THE SOCIETY OF JESUS; THE JESUIT CONFERENCE; FATHER JOHN PRIVETT, S.J.; FATHER ANDREW SOTELO, S.J.; FATHER THOMAS GLEESON, S.J.; FATHER ANTON HARRIS, S.J., Defendants-Appellees.

No. 98-16194

United States Court of Appeals, Ninth Circuit

December 1, 1999

Argued and Submitted June 17, 1999--San Francisco, California

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James M. Wagstaff and Andrew I. Dilworth, Kerr & Wagstaffe, LLP, Mary Patricia Hough, Moss & Hough, San Francisco, California, for the plaintiff-appellant.

Paul E. Gaspari and Lawrence R. Jannuzzi, Tobin & Tobin, San Francisco, California, for defendants-appellees the California Province of the Society of Jesus, the Oregon Province of the Society of Jesus, Father John Privett, S.J., and the Jesuit Conference.

Deborah K. Miller, Landels Ripley & Diamond, San Francisco, California; Jeremiah C. Collins, Paul A. Murphy and Robert A. Van Kirk, Williams & Connolly, Washington, D.C., for defendants-appellees the Maryland Province of the Society of Jesus and Father Thomas Gleeson, S.J.

Michael J. Estep, Greene, Chauvel, Descalso & Tully, San Mateo, California, for defendant-appellee Father Andrew Sotelo, S.J.

William F. Terheyden, Littler Mendelson, San Francisco, California, for defendant-appellee Father Anton Harris, S.J.

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Appeal from the United States District Court for the Northern District of California; Susan Yvonne Illston, District Judge, Presiding. D.C. No. CV-97-03006-SI

Before: David R. Thompson and William A. Fletcher, Circuit Judges, and Susan Oki Mollway,1 District Judge.

W. FLETCHER, Circuit Judge:

We must decide in this case whether the so-called "ministerial exception" to Title VII of the Civil Rights Act of 1964 bars plaintiff John Bollard's claim of sexual harassment against the Jesuit order. Simply stated, the ministerial exception insulates a religious organization's employment decisions regarding its ministers from judicial scrutiny under Title VII. The Free Exercise and Establishment Clauses of the First Amendment compel this exception to the otherwise fully applicable commands of Title VII when the disputed employment practices involve a church's freedom to choose its ministers or to practice its beliefs. Because Title VII applies without a constitutionally compelled exception where, as here, the defendant church is neither exercising its constitutionally protected prerogative to choose its ministers nor embracing the behavior at issue as a constitutionally protected religious practice, we find that plaintiff Bollard has stated a claim sufficient to overcome a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).

I. Background

In August 1988, plaintiff John Bollard became a novice of the Society of Jesus, an order of Roman Catholic priests more commonly known as the Jesuits. As a novice, Bollard began the process of formation, during which men train and study to be ordained. Bollard alleges that, between 1990 and 1996, he was sexually harassed by his Jesuit superiors at the St. Ignatius College Preparatory School in San Francisco and at the Jesuit School of Theology in Berkeley, California. He claims that various superiors at these two institutions sent him pornographic material, made unwelcome sexual advances, and engaged him in inappropriate and unwelcome sexual discussions. Between mid-1995 and 1996, Bollard reported the harassment to superiors within the Jesuit order, but, so far as he knows, his reports prompted no corrective action. He alleges that the harassing conduct was so severe that he was forced to leave the Jesuit order in December 1996 before taking vows to become a priest.

Bollard filed a timely complaint of sexual harassment with the California Department of Fair Employment and Housing, which automatically cross-filed his complaint with the federal Equal Employment Opportunity Commission. He received a right-to-sue letter in January 1997 and filed a complaint in federal district court for the Northern District of California the following August. His complaint asserts a federal cause of action for sexual harassment in violation of section 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.S 2000e2(a), as well as state law claims for failure to investigate, for constructive wrongful discharge, and for breach of contract.

The district court found the ministerial exception applicable and held that Bollard had no valid claim under Title VII. It dismissed Bollard's Title VII claim for want of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and declined to exercise supplemental jurisdiction over his state law claims pursuant to 28 U.S.C. S 1367(c)(3). We review de novo a dismissal for lack of subject matter jurisdiction under Rule 12(b)(1), see Crist v. Leippe , 138 F.3d 801, 803 (9th Cir. 1998), which is the same standard under which we review a dismissal for failure to state a

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claim under Federal Rule of Civil Procedure 12(b)(6), see Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir. 1998). At this stage in the proceedings, we take the allegations in Bollard's complaint as true. See Big Bear Lodging Ass'n v. Snow Summit, Inc., 182 F.3d 1096, 1099 (9th Cir. 1999).

II. The Ministerial Exception to Title VII

The ministerial exception to Title VII "precludes civil courts from adjudicating employment discrimination suits by ministers against the church or religious institution employing them." EEOC v. Catholic Univ. of Am., 83 F.3d 455, 461 (D.C. Cir. 1996). We have previously acknowledged the existence of such an exception in other circuits, but we have never been asked to define its scope or to apply it. See EEOC v. Fremont Christian Sch., 781 F.2d 1362, 1369-70 (9th Cir. 1986); EEOC v. Pacific Press Publ'g Ass'n, 676 F.2d 1272, 1278 (9th Cir. 1982).

The source of the ministerial exception is the Constitution rather than the statute. See, e.g. , Fremont Christian Sch., 781 F.2d at 1365; Pacific Press, 676 F.2d at 1276; Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164, 1167 (4th Cir. 1985). Insofar as race, sex, and national origin are concerned, the text of Title VII treats an employment dispute between a minister and his or her church like any other employment dispute. The statute does provide two exemptions from its non-discrimination mandate for religious groups. One permits a religious entity to restrict employment "connected with the carrying on . . . of its activities" to members of its own faith, 42 U.S.C. S 2000e-1(a); the other permits parochial schools to do the same, id.S 2000e-2(e). But neither of these statutory exceptions removes race, sex, or national origin as an impermissible basis of discrimination against employees of religious institutions. Nor do they single out ministerial employees for lesser protections than those enjoyed by other church employees.

Despite the lack of a statutory basis for the ministerial exception, and despite Congress' apparent intent to apply Title VII to religious organizations as to any other employer, courts have uniformly concluded that the Free Exercise and Establishment Clauses of the First Amendment require a narrowing construction...

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