Professor Tuttle's explanation for why the ministerial exception is
treated as jurisdictional also suggests why it should be limited to
claims that implicate questions of qualifications to perform a
ministerial job. Given that hostile work sexual harassment claims
arise from the failure of an employer to remedy tortious sexual
conduct by coworkers or supervisors directed at a particular employee,
why isn't Elvig, permitting such claims to proceed, a better decision
than Skrzypczak?
Sexual harassment almost always takes one of two forms -- unwelcome
physical conduct of a sexual nature or repeated targeted demands for
sexual favors; the courts of appeals have largely eliminated sexual
harassment claims based on crude language unaccompanied by unwelcome
sexual touching. See, e.g., Mendoza v. Borden, Inc. 195 F.3d 1238
(11th Cir. 1999) (en banc); Gupta v. Florida Board of Regents, 212
F.3d 571 (11th Cir. 2000). Recall that Meritor arose from a claim of
sexual harassment that involved allegations of sexual battery. What
about the ministerial exemption should insulate a ministerial employer
from tort liability for sexual torts simply because the victim was an
employee?
The principal post 1991 Civil Rights Act remedies for hostile work
sexual environment claims are compensatory damages and attorney's
fees. Though injunctive relief may accompany successful claims, its
scope is always discretionary, and could be adjusted or even
eliminated to ensure the absence of disruption to the spiritual
relationship between the church and the injured employee. But how
does a claim for damages for what are in essence sexual torts
implicate the rationale for the ministerial exemption? Courts do not
lack subject matter jurisdiction to hear common law tort claims
against religious institutions for sexual torts generally, so why
isn't Elvig the proper rule? How will adjudicating the factual
question of whether those torts took place within the workplace
against an employee rather than within the church against a congregant
"enmesh the court in endless inquiries as to whether each
discriminatory act was based in Church doctrine or simply secular
animus" as the Seventh Circuit held in Alicea-Hernandez v. Catholic
Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003). Bluntly stated,
what church makes submission to or tolerance of repeated unwelcome
physical sexual advances part of church doctrine?
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting Robert Tuttle <rtut...@law.gwu.edu>:
By way of reply to both Marci and Chris - I think (and Chip Lupu and I have
written at some length) that the ministerial exception is jurisdictional
because, at least at some level, it's not subject to waiver by the parties,
any more than (post Blue Hull Memorial) a congregation/denomination could
ask a court to decide which of the disputing factions was more faithful to
the tradition. Most, not all but most, cases covered by the ministerial
exception involve the possibility of dispute over the qualification for or
performance of a ministerial role, and judgment about whether one is
qualified to be a minister or has performed well in that role can't be
decided by civil courts without adopting some normative -- i.e., religiously
thick -- understanding of ministry.
Bob
On Mon, Jul 19, 2010 at 11:06 AM, Christopher Lund <ed9...@wayne.edu> wrote:
One point of clarification, which goes to Bob Tuttle?s point more than
Marci?s: Are we sure that the ministerial exception is jurisdictional? I
would have thought it wasn?t. I agree it?s constitutional. So like Bob, I
would think that Congress can?t diminish its scope?Congress can?t say to a
religious organization, ?You?ll lose this constitutional right [ministerial
exception] unless you do this [inform an employee prospectively about the
ministerial exception].? But why should we consider this constitutional
limitation *jurisdictional*?
Best,
Chris
___________________________
Christopher C. Lund
Assistant Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI 48202
l...@wayne.edu
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
*From:* religionlaw-boun...@lists.ucla.edu [mailto:
religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com
*Sent:* Monday, July 19, 2010 10:45 AM
*To:* religionlaw@lists.ucla.edu
*Subject:* Re: 10th Circuit Finds Church Immune From Workplace
Discrimination Suit
Rick is casting a larger net than my post suggested. The relevant universe
here is the universe of employees. As in the speech cases (and in
particular the defamation cases since we're dealing with employment), there
should be some weighing of interests here. Right now, in my view, the
balance is out of whack in this universe. (If there are other harms arising
from other First Amendment rights that require redressing, I'm all in favor
of exploring those as well.)
Employees assume that they cannot be discriminated against on the basis of
gender (including a right not to be a victim of sexual harassment). It
turns out in most states that they are UNLESS the employer is religious.
(Don't forget the Supreme Court has not yet ruled on the ministerial
exception so whether it is a robust or less robust or not a constitutional
right still remains in limbo.) So a bishop who creates a hostile working
environment or who persistently engages in sexual innuendo typically is
immune or who arbitrarily decides a man is a better choice than a better
qualified woman is immune.
Employees are doubly disabled in these scenarios. First, as Americans the
culture encourages them to trust religious leaders (though surely that is
declining in light of the steady investigative reporting suggesting folks do
that at their peril). More importantly, because of the ministerial
exception, few cases are ever filed, let alone litigated, and, therefore,
the incidence of gender discrimination is not publicized. So women are
going into these jobs with expectations of fairness that are not borne out,
because of a First Amendment doctrine.
One option is to carve back on the right so that no employer who fails to
advise an employee of this issue can claim it. Bob objected to that,
because the ministerial exception is jurisdictional. But if this is the
result, why should it be? Why isn't it a right, like the freedom of speech
in defamation cases, which carries with it some obligations and weighing,
depending on the scenario?
One option is to have the government inform applicants through public
education, as in add language to the tax forms..... Another is to have
anyone who is taking government funds for mission have to agree as a
condition of receiving the funds to inform employees about the risks they
are taking by taking the employment.
Is Rick saying none of these options are constitutional and/or desirable?
Marci
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time,
rgarn...@nd.edu writes:
I agree, for what it?s worth, that it makes good sense for attorneys
representing churches and religious institutions to advise their clients to
inform those in ministerial positions (that is, in any position that the
church regards as ministerial) about their (the institutions?) religious
liberty. But I?m wondering if Marci?s proposed warning requirement applies
only to religious employers (and if so, why? Because they are employers?
Because they are religious?) or to all whose rights-exercise might cause
?harm??
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--
Robert Tuttle
Professor of Law
David R. and Sherry Kirschner Berz Research Professor of Law & Religion
GWU Law School
SSRN download page:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=271025
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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