United States Court of Appeals: For The Seventh Circuit
United States Court of Appeals: For The Seventh Circuit
In the
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Andrew the Apostle Par., 343 F. Supp. 3d 772, 776, 789 (N.D. Ill.
2018). 3
The district court held that the ministerial exception did
not categorically bar Demkovich’s hostile work environment
claims. Id. at 778–86. Protection under the ministerial excep-
tion instead turned on whether the plaintiff challenged a tan-
gible or intangible employment action. Id. at 780. Claims
based on tangible employment actions, such as termination,
were categorically barred; claims based on intangible employ-
ment actions, such as discriminatory remarks and insults,
were not. Id. at 778, 781–83. The district court reasoned that
tangible employment actions implicated a minister’s employ-
ment status, and therefore the religious organization’s
authority over that minister, in ways unlike intangible em-
ployment actions. Id. at 781–83. Because Demkovich alleged
intangible employment actions in his amended complaint, the
ministerial exception was not a “categorical bar” to his claims.
Id. at 786. Rather, only concerns over excessive church-state
entanglement—as when a religious organization proffers a re-
ligious justification for alleged conduct—could trigger the
ministerial exception’s protection against intangible employ-
ment action claims. Id. at 784–86. For the district court, appli-
cation of the ministerial exception to intangible employment
actions depended on a case-by-case balancing. Id.
This balancing led the district court to dismiss Dem-
kovich’s claims of a hostile work environment based on his
sex, sexual orientation, and marital status. Id. at 786–87.
3 In its second memorandum opinion and order, the district court held
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4
At times, this court has recited this test differently, “looking instead
for evidence that the workplace was both subjectively and objectively
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ADA. Under either Act, and no matter the alleged animus, the
elements of a hostile work environment remain the same. Ford
v. Marion Cnty. Sheriff’s Off., 942 F.3d 839, 856 (7th Cir. 2019)
(the ADA); EEOC v. Costco Wholesale Corp., 903 F.3d 618, 624–
25 (7th Cir. 2018) (Title VII). For its part, the ministerial excep-
tion operates as an affirmative defense to employment dis-
crimination claims, Hosanna-Tabor, 565 U.S. at 195 n.4, turning
on the function of the employee and safeguarding all faiths.
See Our Lady of Guadalupe, 140 S. Ct. at 2060, 2066–67.
A hostile work environment is based on the totality of the
circumstances. Courts consider “the frequency of the discrim-
inatory conduct; its severity; whether it is physically threaten-
ing or humiliating, or a mere offensive utterance; and whether
it unreasonably interferes with an employee’s work perfor-
mance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). This
inquiry is “fact intensive.” Howard, 989 F.3d at 604. For exam-
ple, we account for “the specific circumstances of the working
environment” as well as “the relationship between the harass-
ing party and the harassed.” Robinson v. Sappington, 351 F.3d
317, 330 (7th Cir. 2003). Finding a hostile work environment,
then, “is not, and by its nature cannot be, a mathematically
precise test.” Harris, 510 U.S. at 22. But when proved, one
thing is certain: “the work environment was so pervaded by
discrimination that the terms and conditions of employment
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were altered.” Vance v. Ball State Univ., 570 U.S. 421, 427 (2013);
accord Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986).
III
This case concerns what one minister, Reverend Dada,
said to another, Demkovich. Adjudicating Demkovich’s alle-
gations of minister-on-minister harassment would not only
undercut a religious organization’s constitutionally protected
relationship with its ministers, but also cause civil intrusion
into, and excessive entanglement with, the religious sphere.
Judicial involvement in this dispute would depart from
Hosanna-Tabor and Our Lady of Guadalupe and threaten the in-
dependence of religious organizations “in a way that the First
Amendment does not allow.” Our Lady of Guadalupe, 140 S. Ct.
at 2069.
A
Demkovich’s hostile work environment claims challenge
a religious organization’s independence in its ministerial
relationships. A judgment against the church would legally
recognize that it fostered a discriminatory employment
atmosphere for one of its ministers. See Harris, 510 U.S. at 21–
23. So the church, like any other employer, must have
necessarily failed in supervision and control, either directly or
indirectly. See Johnson, 892 F.3d at 904 (“[E]mployers are
strictly liable for the discriminatory acts perpetrated by
supervisors and they are liable for the discriminatory acts of
others—coworkers, independent contractors, customers,
inmates etc.—only if they are negligent either in discovering
or remedying the harassment.”). And if Demkovich succeeds
in his suit, it means his ministerial work environment “was so
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Comm’r, 490 U.S. 680, 699 (1989) (“It is not within the judicial
ken to question the centrality of particular beliefs or practices
to a faith, or the validity of particular litigants’ interpretations
of those creeds.”). Shielded by the Free Exercise clause, min-
isters should have an eye toward liturgy, not litigation. See
Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d
1164, 1171 (4th Cir. 1985) (“There is the danger that churches,
wary of EEOC or judicial review of their decisions, might
make them with an eye to avoiding litigation or bureaucratic
entanglement rather than upon the basis of their own per-
sonal and doctrinal assessments of who would best serve the
pastoral needs of their members.”).
The Establishment Clause problems with adjudicating
Demkovich’s hostile work environment claims are just as
plain. “Entanglement must be ‘excessive’ before it runs afoul
of the Establishment Clause,” Agostini v. Felton, 521 U.S. 203,
233 (1997), and so “the government action must involve ‘in-
trusive government participation in, supervision of, or in-
quiry into religious affairs.’” Vision Church v. Vill. of Long
Grove, 468 F.3d 975, 995 (7th Cir. 2006) (quoting United States
v. Indianapolis Baptist Temple, 224 F.3d 627, 631 (7th Cir. 2000)).
So it is here. A hostile work environment claim based on the
relationship between ministers “would enmesh the court in
endless inquiries as to whether each discriminatory act was
based in Church doctrine or simply secular animus.” Alicea-
Hernandez v. Cath. Bishop of Chicago, 320 F.3d 698, 703 (7th Cir.
2003). Discerning doctrine from discrimination is no task for
a judge or jury. See Minker v. Balt. Annual Conf. of United Meth-
odist Church, 894 F.2d 1354, 1357 (D.C. Cir. 1990) (noting, in a
promotion claim, that “[w]e cannot imagine an area of inquiry
less suited to a temporal court for decision; evaluation of the
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C
Demkovich’s case is not our first engagement with matters
of ministerial employment. This court has consistently recog-
nized the importance of the ministerial exception and the pro-
tection it offers. In Young, we applied the ministerial exception
to a Title VII claim for denial of a promotion by a probationary
minister. 21 F.3d at 187–88 (characterizing as “fruitless” the
plaintiff’s argument “that Title VII may be applied to deci-
sions by churches affecting the employment of their clergy”).
In Tomic v. Catholic Diocese of Peoria, we did the same for an
ADEA termination suit by a music director and organist. 442
F.3d 1036, 1040–43 (7th Cir. 2006) (stating that “[a religious
employer] would not be constrained in its dealings with [its
ministers] by employment laws that would interfere with the
church’s internal management, including antidiscrimination
laws” (collecting cases)), abrogated in part on other grounds by
Hosanna-Tabor, 565 U.S. at 195 n.4. And in Alicea-Hernandez,
we dismissed under the ministerial exception a communica-
tions manager’s suit alleging, among other claims, Title VII
retaliation. 720 F.3d at 700, 703–04 (“The ‘ministerial excep-
tion’ applies without regard to the type of claims being
brought.”). Notably, each of these applications of the ministe-
rial exception came before the Supreme Court’s holding in
Hosanna-Tabor.
We continued to confirm the ministerial exception’s
strength after its unanimous endorsement in that case. In
Grussgott v. Milwaukee Jewish Day School, Inc., we applied the
ministerial exception to an ADA termination claim by a
teacher at Jewish day school. 882 F.3d 655, 657, 662 (7th Cir.
2018) (per curiam) (describing Hosanna-Tabor as “the Supreme
Court adopt[ing] the ‘ministerial exception’ to employment
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discrimination laws that the lower federal courts had been ap-
plying for years”). In Sterlinski v. Catholic Bishop of Chicago, we
held the ministerial exception barred a Title VII claim for de-
motion and termination by another organist and music direc-
tor. 934 F.3d 568, 569, 572 (7th Cir.) (noting that Hosanna-Tabor
“holds that Title VII of the Civil Rights Act of 1964 does not
apply to ministers”), as amended on denial of reh’g and reh’g en
banc (Oct. 31, 2019). Although Demkovich’s appeal is our first
encounter with the ministerial exception since Our Lady of
Guadalupe, this decision is the next station on this journey.
On a final note, we acknowledge the split in the circuits on
whether the ministerial exception covers hostile work envi-
ronment claims. The Tenth Circuit holds that it does.
Skrzypczak v. Roman Cath. Diocese of Tulsa, 611 F.3d 1238, 1243–
46 (10th Cir. 2010). The Ninth Circuit holds that it does not, at
least as a categorical matter. Compare Elvig, 375 F.3d at 969,
and Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940,
945–50 (9th Cir. 1999), with Werft v. Desert Sw. Annual Conf. of
United Methodist Church, 377 F.3d 1099, 1101–04 (9th Cir. 2004)
(per curiam). 5 The church contends that the Eleventh and
Fifth Circuits have also weighed in on this issue. But we are
not sure the cases cited cleanly presented hostile work envi-
ronment claims. See Gellington v. Christian Methodist Episcopal
Church, 203 F.3d 1299, 1300–01 (11th Cir. 2000); Combs v. Cent.
Tex. Annual Conf. of United Methodist Church, 173 F.3d 343,
350–51 (5th Cir. 1999). Regardless of the depth of the split,
courts on either side recognized this court’s position before
Demkovich’s suit. See Skrzypczak, 611 F.3d at 1245 (“[W]e
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The Ninth Circuit found that the Free Exercise Clause did
not require the courts to deny relief on the hostile environ-
ment claim:
The Free Exercise Clause rationale for
protecting a church’s personnel decisions
concerning its ministers is the necessity of
allowing the church to choose its
representatives using whatever criteria it deems
relevant. That rationale does not apply here, for
the Jesuits most certainly do not claim that
allowing harassment to continue unrectified is a
method of choosing their clergy. Because there
is no protected-choice rationale at issue, we
intrude no further on church autonomy in
allowing this case to proceed than we do, for
example, in allowing parishioners’ civil suits
against a church for the negligent supervision of
ministers who have subjected them to
inappropriate sexual behavior.
196 F.3d at 947–48. A “generalized and diffuse concern” about
church autonomy, the court added, was not enough to require
dismissal. Id. at 948.
Bollard went on to consider the problem of entanglement
under the Establishment Clause. The court found there would
be no need to evaluate religious doctrine or the “reasonable-
ness” of Jesuit practices. Id. at 950. Finding there would be no
greater entanglement than in other private civil suits against
a church, the Ninth Circuit found no constitutional barrier to
the sexual harassment claim that did not challenge any tangi-
ble employment action.
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3 The majority shrugs off the comparison to tort law with a surprising
and unsupported assertion, that tort claims are not subjective and “seldom
probe for discriminatory animus.” Ante at 22. State of mind is at the heart
of tort law. Consider the great divide between intentional torts and
negligent torts. See Prosser & Keeton, The Law of Torts § 8 (5th ed. 1984)
(citing “intent” as “the key distinction between two major divisions of
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State Club Ass’n v. City of New York, 487 U.S. 1, 14 n.5 (1988),
and one that Congress considered a policy “of the highest pri-
ority.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402
& n.3 (1968), citing committee reports on what became the
Civil Rights Act of 1964.
To answer whether this additional immunity from hostile
environment claims is necessary, we should start with powers
that are undisputed: the powers churches already have to
select and control their ministers, free of constraints from
employment discrimination and other laws. Hiring, firing,
promoting, retiring, transferring—these are decisions that
employers, including religious organizations, make to select
those who carry out their work. The latent power to take such
actions offers other tools for control. Further control is
available through many other tangible employment actions,
including decisions about compensation, benefits, working
conditions, resources available to do the job, training, support
from other staff and volunteers, and so on.
Employment discrimination law is built on the recognition
that employers have these powers to control their employees. As
the Supreme Court explained in Ellerth: “Tangible employ-
ment actions are the means by which the supervisor brings
the official power of the enterprise to bear on subordinates”
and require “an official act of the enterprise.” Burlington In-
dustries, Inc. v. Ellerth, 524 U.S. 742, 762 (1998). Control is the
very point of those powers. As Ellerth explained, that’s why
employers are held accountable for these tangible decisions
when managers make them with an unlawful purpose. Id.
Hostile environment claims, while they may arise under
the same statutes, involve quite different elements and special
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4 As this appeal comes to us, we must also assume that plaintiff would
be able to show a basis for employer liability, as the panel opinion noted.
Demkovich, 973 F.3d at 723.
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57 & n.2 (Fla. 2002) (collecting cases); see also Elvig, 375 F.3d
at 959 (allowing minister’s hostile work environment claim
based on sexual harassment to go forward where allegations
would require only “a purely secular inquiry” and would not
require court to pass on issues of religious doctrine).
Accordingly, the potential for procedural entanglement
should not bar plaintiff’s claims here entirely. Courts can and
should deal with procedural entanglement problems as they
arise, not close the courthouse to the entire category of cases.
The more difficult problems arise here in terms of poten-
tial substantive entanglement. Again, though, we need to
keep in mind that some entanglement is “inevitable” and that
only “excessive” entanglement violates the First Amendment.
Agostini, 521 U.S. at 233. Courts have managed potential en-
tanglement problems in church litigation across a range of
subjects, from contracts and property disputes to employ-
ment disputes, torts, and church elections and schisms.
The general parameters are familiar. Civil courts must not
decide questions of correct faith and practice, such as decid-
ing which of two rival groups seeking control of church prop-
erty has the better theological or doctrinal arguments. At the
same time, civil courts sometimes must decide questions of
property, contract, tax, or tort law in cases involving
churches. They may do so if they avoid issues of faith and
stick to applying neutral, secular principles of law.
In some cases, that approach has led civil courts to leave
churches alone. E.g., N.L.R.B. v. Catholic Bishop of Chicago, 440
U.S. 490, 503 (1979) (interpreting statute to deny NLRB juris-
diction over lay teachers in church schools); Serbian Eastern
Orthodox Diocese for the U.S.A. v. Milivojevich, 426 U.S. 696,
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708–09 (1976) (reversing state court decision that set aside de-
cisions of “mother church” defrocking bishop, dividing dio-
cese, and amending diocese constitutions); Presbyterian
Church in the U.S. v. Mary Elizabeth Blue Hull Memorial Presby-
terian Church, 393 U.S. 440, 449 (1969) (reversing state-court
decision in property dispute that had been based on court’s
assessment of church doctrine); Kedroff v. St. Nicholas Cathedral
of Russian Orthodox Church in North America, 344 U.S. 94, 120–
21 (1952) (striking down state statute transferring administra-
tive control of church from Russian hierarchy to leader of
United States branch). These are the cases that drive the ma-
jority’s conclusions here.
In other cases, however, civil law may be applied to
churches without intolerable burdens on religious liberty.
E.g., Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 695–
700 (1989) (affirming denial of charitable deductions for
“gifts” to church where quid pro quo exchange for services
was clear); Tony and Susan Alamo Foundation v. Sec’y of Labor,
471 U.S. 290, 305 (1985) (permitting application of Fair Labor
Standards Act to religious employer); Bob Jones University v.
United States, 461 U.S. 574 (1983) (affirming denial of univer-
sity’s tax-exempt status based on racial discrimination said to
be based on religious doctrine); Wolf, 443 U.S. at 602–04 (re-
solving property dispute between rival factions of local
church based on neutral principles). In all of these cases there
was some risk or degree of entanglement, but the Supreme
Court deemed it tolerable. If we consider the full sweep of the
case law, rather than just one side of it, we see a need for bal-
ance and nuance, not new absolute rules in constitutional law.
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