“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Seventh Circuit judge Michael Brennan wrote a decision for the full court, joined by Trump judges Amy St. Eve and Thomas Kirsch, ruling that religious organizations like churches cannot be sued for maintaining what would otherwise be an illegal hostile working environment based on sex, sexual orientation, disability, or other factors because of the so-called ministerial exception. The July 2021 decision is in Demkovich v St, Andrew the Apostle Parish.
In 2012, Sandor Demkovich was hired by St. Andrew the Apostle Parish church as its music director. Demkovich is a gay man who also has diabetes and related disabilities. According to his complaint, he was subjected by his supervisor to continual “derogatory comments and demeaning epithets showing a discriminatory animus towards his sexual orientation.” This behavior became worse, and also included “belittling and humiliating comments” concerning his disabilities, after it became known that he planned to marry his partner while still employed at the church. When the harassment proved insufficient to get Demkovich to resign, his supervisor fired him.
Demkovich filed suit against the church for employment discrimination for firing him based on his sex, sexual orientation, marital status, and disability. Although his job functions would not traditionally have classified him as a minister, the district court ruled that he could not sue the church under the ministerial exception to federal anti-bias law as expanded by the Supreme Court, and dismissed the complaint. Demkovich then filed an amended complaint, contending that although the ministerial exception may cover whether to hire or fire him, it did not excuse the church’s maintaining a hostile work environment against him. The district court ruled that he could bring such a claim based on disability but not on sex, sexual orientation, and marital status. At the church’s request, that issue was immediately appealed to the Seventh Circuit, and a panel affirmed the district court decision. The full Seventh Circuit then decided to rehear the case.
Trump judge Brennan wrote a 7-3 decision, joined by Trump judges St. Eve and Kirsch, that went even further in the church’s favor. Brennan ruled that not only could the church not be sued under federal law for maintaining a hostile work environment based on sex, sexual orientation, and marital status, but that it also could not be so sued based on disability or any other ground. According to Brennan, the ministerial exception is a constitutional command that overrides federal anti-bias law and is “not limited” to hiring and firing employees, as in the cases considered by the Supreme Court. Instead, Brennan maintained, it encompasses “the entire employment relationship,” including firing and hiring as well as “supervising in between.” Brennan wrote that the result is dictated by Supreme Court precedent and by the need under the First Amendment to avoid “impermissible intrusion into, and entanglement with, the religious sphere.” Brennan concluded that at least in the Seventh Circuit, the ministerial exception “precludes” any hostile work environment claims against church or religious organization, whether based on sex, sexual orientation, disability or any other grounds.
Judge David Hamilton strongly dissented, joined by Judge Diane Wood and George H.W. Bush nominee Ilana Rovner. He began by noting that the “bar” on hostile work environment claims imposed by the majority will apply “regardless of how severe, pervasive or hostile the work environment is” and “regardless” of whether it is “motivated by race, sex, national origin, disability, or age,” whether or not it has any connection to “religious faith or practice.” Rather than deciding to “stick with” the panel’s more cautious, case-by-case approach to weigh both anti-bias laws and religious institutions’ interests, he complained, Brennan’s opinion “creates for religious institutions a constitutional shelter from generally applicable laws, at the expense of the rights of employees.”
More specifically, Hamilton explained that the Supreme Court had not decided whether the ministerial exception applies to hostile work environment claims, and that other federal and state courts are “split on the question.” As he noted, for example, the Ninth Circuit rejected the argument that the principle that allows complete free choice by a religious group as to who to hire and fire as to certain employment positions also excuses “allowing harassment to continue unrectified” as to people in those positions. The claim of excessive entanglement, Hamilton went on, neglects the fact that even churches are subject to other kind of civil liability where intent is an issue, such as claims of intentional infliction of emotional distress, criminal assault, and sexual abuse, whether against employees or the all “too familiar” claims involving children and other parishioners. Particularly since the courts have made clear that the kind of conduct that constitutes a hostile work environment is not a necessary or “permissible means of exerting” control over employees, Hamilton continued, there is no justification for Brennan’s “categorical rule against all hostile environment claims by ministerial employees.” Hamilton noted that even “extreme conduct” as has occurred in other cases, such as leaving “nooses at the desk of a Black minister while repeatedly subjecting him to verbal abuse with racial epithets” or subjecting a religious school teacher to “pervasive and unwelcome sexual attention,” will effectively be permitted by the majority’s “absolute bar” to “statutory hostile environment claims.”
That is precisely the type of result that will be permissible in the Seventh Circuit, however, as a result of the decision made possible by Trump judges Brennan, St. Eve, and Kirsch in dismissing Demkovich’s case. It also illustrates the importance of prompt confirmations of Biden nominees as part of our fight for our courts. One of the judges in the majority, Reagan nominee Joel Flaum, recently took senior status and has been replaced by Biden’s nomination of Candace Jackson-Akiwumi, who is the only African-American judge on the Seventh Circuit. While we do not know how this case might have differed if she had been on the court earlier, we can hope that she will have an important impact on future decisions of the court.