In Demkovitch v. St. Andrew the Apostle Parish, (7th Cir., Aug. 31, 2020), the U.S. 7th Circuit Court of Appeals, responding to a question certified to it by an Illinois federal district court held by a 2-1 vote that the ministerial exception doctrine does not bar hostile work environment claims brought by a ministerial employee where no tangible employment action was taken. In the case, the music director of a Catholic church alleged that his supervisor harassed an humiliated him about his sexual orientation, as well as his weight and his medical issues. The majority held in part:
The ministerial exception gives religious organizations the power to use the full range of tangible employment actions to select and control their ministerial employees without judicial review or government interference under these federal statutes. These employers are thus able to control their employees in every way that would be necessary to exercise their religious freedoms. It is hard to see how the Church could not have adequately controlled plaintiff as a ministerial employee by deciding whether to hire him and whether to fire him, or by deciding his job duties, his place of work, his work schedule, his compensation, the resources he needed to work, and so forth.
Subjecting plaintiff to the abuse alleged here is neither a statutorily permissible nor constitutionally protected means of “control” within the meaning of Hosanna–Tabor.
Judge Flaum dissented, saying in part:
Beyond infringing on the Church’s free exercise rights in this case, allowing ministers to bring hostile work environment claims will “gravely infringe” on the rights of religious employers more generally “to select, manage, and discipline their clergy free from government control and scrutiny” by encouraging them to employ ministers that lessen their exposure to liability rather than those that best “further [their] religious objective[s].”