RELIGION
Fired Gay Catholic Church Choir Director Can Sue
Appeals court fi nds ministerial exception shields hiring, fi ring choices, not harassment
BY ARTHUR S. LEONARD
A three-judge panel of the
Chicago-based Seventh
Circuit Court of Appeals
ruled on August
31 that a gay man fi red as music
director by a Catholic church after
he married his boyfriend can sue
the church on a claim he was subjected
to a hostile work environment
by his supervisor, a priest,
because of his sexual orientation
and physical disabilities.
The US Supreme Court has defi
ned a “ministerial exception” to
anti-discrimination law — based
on the First Amendment’s Free
Exercise of Religion Clause — that
protects religious organizations
from being sued about their decisions
to hire or terminate employees
who can be described as “ministers,”
a category broad enough to
include a music director responsible
for liturgical hymns used in
services.
Here, however, the appeals
panel voted 2-1 that the ministerial
exception does not apply to an
employee’s claim that his employer
has subjected him to a hostile work
environment for reasons prohibited
by anti-discrimination laws.
The church, St. Andrew the
Apostle in Calumet City, Illinois,
hired Sandor Demkovich to be its
music director in 2012, by which
time he had been living with his
boyfriend for more than a decade.
He suffered from diabetes and a
metabolic syndrome and was overweight,
conditions that could be
deemed disabilities covered by the
federal Americans with Disabilities
Act (ADA). The church was aware
of these physical conditions when
it hired Demkovich.
There were no complaints about
his performance as music director,
but he was fi red in 2014 after he
refused a demand by his supervisor,
Father Jacek Dada, that he not
go through with his plan to marry
his partner with the advent of marriage
equality in Illinois
In his lawsuit, Demkovich contends
that Dada subjected him to
a hostile work environment during
Sandor Demkovich (left) and Frank Hattula at their 2014 wedding ceremony in an Episcopal church.
his employment based on his
sexual orientation and his disabilities.
In his complaint, Demkovich
claims that the nasty comments
and epithets escalated as
the date of his marriage ceremony
approached. After the marriage
ceremony, Dada demanded his
resignation, and when Demkovich
refused he was fi red.
Demkovich’s lawsuit does not
challenge his fi ring, for which the
church would have no liability because
as music director he was
clearly a ministerial employee under
Supreme Court precedents.
However, Demkovich claims
that St. Andrew violated the Title
VII employment protections of the
1964 Civil Rights Act and the ADA
under the hostile work environment
theory fi rst recognized by the
Supreme Court in 1986. Under this
theory, if an employee is subjected
to such severe or pervasive harassment
that his ability to do his job
is adversely affected, the employer
may be liable to him for damages,
particularly when a supervisor
is the source of the harassment.
Though courts have struggled
with where to draw the line on the
severity of the harassment, since it
need not be so bad that any reasonable
person would quit, Demkovich’s
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allegations are suffi cient
under existing precedents, the appeals
panel found.
St. Andrew moved to dismiss
the case at the district court level,
invoking the ministerial exception
and arguing that under the First
Amendment it is not subject to any
restrictions on how it treats its employees
under Title VII or the ADA.
US District Judge Edmond E.
Chang dismissed the Title VII
claim but allowed the ADA claim to
proceed, evidently crediting the argument
that Demkovich’s Title VII
claim was invalid because Dada
had a right to act out of his religious
beliefs regarding homosexuality
and same-sex marriage, but
that there was no religious basis to
harass an employee because of his
disabilities.
According to the panel opinion
by Judge David Hamilton,
the church “persuaded” Chang to
“certify” to the Seventh Circuit a
“broad legal question, not limited
to the factual details of this particular
case,” about whether the
ministerial exception does “ban all
claims of a hostile work environment
brought by a plaintiff who
qualifi es as a minister, even if the
claim does not challenge a tangible
employment action.”
Under Supreme Court precedents,
hostile work environment
claims are “intangible employment
actions” while hiring, fi ring, promotion,
and disciplinary actions
by employers are considered to be
“tangible.”
St. Andrew was hoping to be relieved
of potential liability under
the ADA, but by posing the question
was putting its victory on
the Title VII issue in danger. The
Seventh Circuit had already recognized
that sexual orientation
claims are covered by Title VII in
a case from several years ago, and
that position, of course, was bolstered
on June 15, when the Supreme
Court decided the Bostock
case.
The panel divided 2-1 over how
to answer the question. For the
majority, it was clear that the Supreme
Court’s ministerial exception
decisions, which all involved
wrongful termination lawsuits, did
not extend to “intangible employment
actions” such as hostile work
environment harassment.
Judge Hamilton’s opinion acknowledges
the Supreme Court’s
underlying theory on the ministerial
exception — that a religious
congregation’s free exercise of religion
must include its freedom to
decide whom to employ as a minister
of the faith. But he asserted
that holding a church liable for
subjecting its workers to severely
hostile working conditions — especially
conditions so severe they adversely
affect an individual’s ability
to perform their job — has nothing
to do with the church’s decision
whom to employ. As a result, the
Supreme Court’s reasoning would
not support allowing churches to
mistreat employees in a way that
would violate the law if done in a
non-religious workplace — even if
the mistreatment was motivated
by religious beliefs.
The Seventh Circuit also confronted
other arguments St. Andrew
made under the First Amendment’s
Establishment Clause,
which bars the government from
➤ GAY CHOIR DIRECTOR, continued on p.25
September 10 - September 23, 2 24 020 | GayCityNews.com
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