Demkovich v. St. Andrew the Apostle Parish

• Decision Date: 31 August 2020
• Docket Number: No. 19-2142,19-2142
• Citation: 973 F.3d 718
• Parties: Sandor DEMKOVICH, Plaintiff-Appellee, v. ST. ANDREW THE APOSTLE PARISH, CALUMET CITY, and The Archdiocese of Chicago, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

973 F.3d 718

Sandor DEMKOVICH, Plaintiff-Appellee,

v.ST. ANDREW THE APOSTLE PARISH, CALUMET CITY, and The Archdiocese of Chicago, Defendants-Appellants.

No. 19-2142

United States Court of Appeals, Seventh Circuit.

Argued November 5, 2019

Decided August 31, 2020

Kristina B. Alkass, Thomas J. Fox, Patti S. Levinson, Attorneys, Lavelle Law, Ltd., Schaumburg, IL, for Plaintiff - Appellee.

James C. Geoly, Alexander David Marks, Attorneys, BURKE, Warren, Mackay & Serritella, P.C., Chicago, IL, for Defendants-Appellants.

Before Flaum, Rovner, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

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 , ––– U.S. ––––, 140 S. Ct. 2049, 207 L.Ed.2d 870 (2020) ; Hosanna–Tabor Evangelical Lutheran Church & School v. EEOC , 565 U.S. 171, 132 S.Ct. 694, 181 L.Ed.2d 650 (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, 108 S.Ct. 2225, 101 L.Ed.2d 1 (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).

I. Factual Allegations and Procedural Background

We review here a ruling on a motion to dismiss under Rule 12(b)(6), so we treat as true the factual allegations of the operative complaint. E.g., Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) ; Anicich v. Home Depot U.S.A., Inc. , 852 F.3d 643, 648 (7th Cir. 2017).

Plaintiff Sandor Demkovich was hired in 2012 as the music director at St. Andrew the Apostle Parish, a Catholic church in Calumet City, Illinois. He was fired in 2014. Demkovich is gay. When he was hired, he had been with his partner (now husband) for over a decade. He also was overweight and suffered from diabetes

and metabolic syndrome, and he had these conditions before St. Andrew hired him.

Demkovich's supervisor was Reverend Jacek Dada. According to Demkovich, Reverend Dada subjected him to a hostile work environment based on his sexual orientation and his disabilities.¹ Demkovich alleges that Reverend Dada repeatedly and often subjected him to comments and epithets showing hostility to his sexual orientation, and increased the frequency and hostility after learning that Demkovich intended to marry his partner and again as the date of the ceremony approached. After the ceremony, Reverend Dada demanded Demkovich's resignation because his marriage violated Church teachings. Demkovich refused, and Reverend Dada then fired him.

Demkovich also alleges that Reverend Dada repeatedly harassed and humiliated him based on his weight and medical issues. According to Demkovich, his job did not call for any particular physical-fitness requirements, and Reverend Dada never connected his disparaging and humiliating comments to Demkovich's job performance. Demkovich alleges that Reverend Dada's harassment on both grounds "humiliated and belittled" him, causing serious harm to his physical and mental health.

Demkovich sued the St. Andrew parish and the Archdiocese of Chicago. The operative complaint asserts hostile environment claims under both Title VII and the Americans with Disabilities Act. The church moved to dismiss for failure to state a claim, invoking the ministerial employee exception. The district court granted the motion in part, dismissing the Title VII claim but allowing the ADA claim to proceed. Demkovich v. St. Andrew the Apostle Parish , 343 F. Supp. 3d 772, 789 (N.D. Ill. 2018).

This is an appeal under 28 U.S.C. § 1292(b). Defendants persuaded the district court to certify a broad legal question, not limited to the factual details of the particular case. See Ahrenholz v. Board of Trustees of the Univ. of Illinois , 219 F.3d 674, 677 (7th Cir. 2000). The district court certified the following question:

Under Title VII and the Americans with Disabilities Act, does the ministerial exception ban all claims of a hostile work environment brought by a plaintiff who qualifies as a minister, even if the claim does not challenge a tangible employment action?

A motions panel of this court agreed that the broad question was suitable for interlocutory appeal under § 1292(b), and an appeal under § 1292(b) brings up the whole certified order. United Airlines, Inc. v. Mesa Airlines, Inc ., 219 F.3d 605, 609 (7th Cir. 2000). Our review is de novo. See Anicich , 852 F.3d at 648.

II. The Ministerial Exception and Hostile Environment Claims

A. Origins and Purpose of the Ministerial Exception

To decide the question about extending the ministerial exception to hostile environment claims, we begin by looking to its origins and purpose. In 2012, consistent with decisions of every circuit, the Supreme Court recognized the ministerial exception in Hosanna–Tabor . See 565 U.S. at 188 n.2, 132 S.Ct. 694 (collecting cases). The Court affirmed summary judgment for the employer on the EEOC's claim that a ministerial employee was fired in retaliation after she asserted rights under the ADA.

The ministerial exception is not a statutory interpretation. It is an application of the First Amendment: "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs." 565 U.S. at 188, 132 S.Ct. 694. This kind of interference violates both the Free Exercise and Establishment Clauses of the First Amendment.

First, "[b]y imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments." Id. Second, "[a]ccording the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions." Id. at 188–89, 132 S.Ct. 694.²

This exception is not limited to religious discrimination claims. It extends to sex, race, national origin, age, disability, and now sexual orientation discrimination. Hosanna –Tabor also made clear that the exception applies whether or not the decision was grounded in religious doctrine. 565 U.S. at 194, 132 S.Ct. 694 ("The purpose of the exception is not to safeguard a church's decision to fire a minister only when it is made for a religious reason."). Hosanna–Tabor explained that the purpose of the ministerial exception is to "ensure[ ] that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the church's alone." Id. at 194–95, 132 S.Ct. 694, quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in North America , 344 U.S. 94, 119, 73 S.Ct. 143, 97 L.Ed. 120 (1952) ; accord, Our Lady of Guadalupe School , 140 S. Ct. at 2055.

The Court said in Hosanna–Tabor that it was not deciding the question we face here, whether the ministerial exception applies to suits that do not result from the firing of a ministerial employee: "The case...