Read why employment practices liability insurance is worth it for religious entities.

When’s the last time you grumbled to yourself, “Is anything sacred anymore?”?  It’s a sobering question. While we all have different backgrounds, experiences, and opinions, the standard for what is normal or reasonably expected seems to be changing. Solid ground is shifting. Although it may not be on your radar yet, the doctrine of ministerial exception is being tested. What was once an iron-clad liability shield for churches and other entities with a primary focus on religion has bent. In real life, ministers do make legal claims against churches, and some are gaining traction.

What is ministerial exception?*
Within the context of this blog, it is a legal doctrine that exempts the application of employment pratice laws between a religious institution and a ministerial employee. Its roots trace all the way back to the 1215 Magna Carta, which granted the English Church total freedom, having its rights undiminished and its liberties unimpaired. Freedom of the Church was deemed so vital that it is specifically referred to at the beginning and at the end of the 1215 Magna Carta. Similar import carries through in the First Amendment to the U.S. Constitution, i.e. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

Terra firma (solid ground) is confirmed by the U.S. Supreme Court.
An 1871 landmark U.S. Supreme Court case (Watson v. Jones) confirmed terra firma for American law involving ecclesiastical disputes. Notably, this case established the ecclesiastical abstention doctrine, which shielded religious organizations from secular interference. The U.S. Supreme Court ruled that in cases in which local churches are part of a hierarchical structure (such as a presbytery), civil courts must defer to the highest church judicatory regarding property ownership and internal disputes. Other cases followed, and the ecclesiastical abstention doctrine held.

Terra firma shifts.
Fast forward to the 2012 case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, in which the U.S. Supreme Court established that ministerial exception is an affirmative defense, but not an absolute bar to a claim. Practically, the ground shifted some, opening the door to religious organizations possibly incurring defense costs to prove an employee is, in fact, ministerial. Regardless, non-profit organizations of all stripes should seriously consider purchasing coverage for employment practices liability, as these claims run the gamut from cooperative and reasonable to nasty and costly.

Where is the ground today?
Although there are few cases litigating ministerial exception today, that doesn't necessarily deter claimants from testing its breadth. A recent employment dispute claim by a church pastor in Ohio was settled out of court to avoid protracted and costly litigation.

Perhaps more unsettling for religious entities is where high-level courts are on ministerial exception. Currently, two federal circuit courts of appeals are split on whether or not ministerial exception applies in cases alleging a hostile work environment or harassment. Other legal intricacies, which boggle the minds of non-lawyers, such as what employees actually meet the standard of “ministerial” and under what circumstances, are evolving. Depending on the specific facts of each individual case, a lawsuit might result in an unexpected outcome. The fact sets of some cases are downright wacky.

 

*NOTE:  Ministerial exception applies to entities beyond traditional churches, including church-affiliated schools, religious non-profit entities, and hospitals. The bar that must be met is the entity’s mission must be primarily religious. However, as indicated above, what was once solid ministerial exception ground has already shifted. More testing is likely to play out before a return to terra firma or the establishment of new terra firma.

 

This blog is intended for informational purposes. Contact a qualified attorney to discuss legal matters, including the doctrine of ministerial exception.

 

Contact your Trusted Choice Independent Insurance Agents at Richey-Barrett Insurance for church and non-profit organization insurance, including employment practices liability insurance.