Seventh Circuit Expands Ministerial Exception to Hostile Work Environment Claims

John T. Melcon

Sitting en banc, the Seventh Circuit in Demkovich v. St. Andrew the Apostle Parish, No. 19-2142 (July 9, 2021), held that the so-called “ministerial exception” bars hostile work environment claims alleging minister-on-minister harassment. Previously, a three-judge panel of the same court ruled that the ministerial exception—which arises from the religion clauses of the First Amendment—applies to employment discrimination claims but not necessarily hostile work environment claims. Other circuits are divided on the issue, making it more likely to reach the Supreme Court.

Demkovich involved a former music director at St. Andrew the Apostle Parish (a liturgical role the parties did not dispute was “ministerial”) who alleged he had been subjected to derogatory and demeaning remarks from his supervisor—a Catholic priest—regarding his sexual orientation and disability. Drawing on rationale from the Supreme Court’s decision in Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049 (2020), the majority focused on both the protected nature of “the ministerial relationship” and the “excessive entanglement” that would result from judicial interference in that sphere. The court characterized ministerial employment as “fundamentally distinct” and “different in kind” from other employment, adding that a religious organization’s “supervision” of its ministers is just as central to its autonomy as its “selection” of ministers.

The dissenting judges took issue with the majority’s “categorical rule,” calling instead for a case-by-case balancing approach to ministerial lawsuits based on intangible employment actions. The dissenting judges also pointed out that the court’s holding “raises the stakes for future decisions about who should be deemed a ‘ministerial’ employee.”

Whether or not that last assessment is correct, the case highlights the central role of the ministerial exception as an affirmative defense for religious institutions. Sherman & Howard attorneys, who serve a wide array of religious organizations and have extensive experience dealing with the ministerial exception, are able to provide sophisticated counsel to religious employers looking to audit or augment their position with respect to this evolving doctrine.