Sandor Demkovich v. St. Andrew the Apostle Parish

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2142
SANDOR DEMKOVICH,
Plaintiff-Appellee,
v.
ST. ANDREW THE APOSTLE PARISH, CALUMET CITY, and THE
ARCHDIOCESE OF CHICAGO,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:16-cv-11576 — Edmond E. Chang, Judge.
____________________
ARGUED NOVEMBER 5, 2019 — DECIDED AUGUST 31, 2020
____________________
Before FLAUM, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. The First Amendment prohibits
enforcement of federal employment discrimination statutes
against decisions of churches and other religious
organizations to hire or fire their “ministerial employees.”
Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049
(2020); Hosanna–Tabor Evangelical Lutheran Church & School v.
EEOC, 565 U.S. 171 (2012). This interlocutory appeal presents
2 No. 19-2142
a question about extending this exemption beyond hiring and
firing decisions: should the constitutional exemption be
extended to categorically bar all hostile environment
discrimination claims by ministerial employees, even where
there is no challenge to tangible employment actions like
hiring and firing? Our answer is no.
In the United States legal system, encounters between
churches and civil law are always fraught. Such cases, includ-
ing this one, can pose a tension between two valued legal
goods: constitutional protection of the freedom of religion
and other legal rights. In such cases, the courts have a long
history of balancing and compromising to protect religious
freedom while enforcing other important legal rights. The
problem here is particularly sensitive, involving tension be-
tween the freedom of religion and employees’ rights to be free
from invidious discrimination, also a compelling governmen-
tal interest. E.g., New York State Club Ass’n v. City of New York,
487 U.S. 1, 14 n.5 (1988). The problem is not so sensitive as to
preclude line-drawing altogether.
Defendants urge us to bar all statutory hostile environ-
ment claims by ministerial employees. Recognizing the his-
tory of balance and compromise, defendants acknowledge
that the First Amendment does not bar those same ministerial
employees from bringing contract and tort claims against
their employers and supervisors. Nor does the First Amend-
ment bar enforcement of criminal laws arising from mistreat-
ment of those same employees. Plaintiff argues that churches
do not need, as a matter of constitutional law, complete pro-
tection from statutory harassment claims so long as they do
not challenge any tangible employment actions used to select
and control ministerial employees.
No. 19-2142 3
The right balance is to bar claims by ministerial employees
challenging tangible employment actions but to allow hostile
environment claims that do not challenge tangible employ-
ment actions. Religious employers’ control over tangible em-
ployment actions—hiring, firing, promoting, deciding com-
pensation, job assignments, and the like—provides ample
protection for the free exercise of religion. The First Amend-
ment does not require complete immunity from the some-
times horrific abuse that defendants’ bright-line rule would
protect.
Sensitive issues of potential entanglement, to use the lan-
guage of Establishment Clause jurisprudence, lie ahead. We
are not persuaded, however, that they cannot possibly be
managed in a balanced way that protects both religious lib-
erty and the rights of employees to be free from discriminato-
rily hostile work environments. In so holding, we join the
Ninth Circuit, see Bollard v. California Province of the Society of
Jesus, 196 F.3d 940 (9th Cir. 1999); Elvig v. Calvin Presbyterian
Church, 375 F.3d 951 (9th Cir. 2004), and depart from the
Tenth, see Skrzypczak v. Roman Catholic Diocese of Tulsa, 611
F.3d 1238 (10th Cir. 2010).
I. Factual Allegations and Procedural Background
We review here a ruling on a motion to dismiss under Rule
12(b)(6), so we treat as true the factual allegations of the oper-
ative complaint. E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Anicich v. Home Depot U.S.A., Inc., 852 F.3d 643, 648 (7th Cir.
2017).
Plaintiff Sandor Demkovich was hired in 2012 as the music
director at St. Andrew the Apostle Parish, a Catholic church
in Calumet City, Illinois. He was fired in 2014. Demkovich is
4 No. 19-2142
gay. When he was hired, he had been with his partner (now
husband) for over a decade. He also was overweight and suf-
fered from diabetes and metabolic syndrome, and he had
these conditions before St. Andrew hired him.
Demkovich’s supervisor was Reverend Jacek Dada. Ac-
cording to Demkovich, Reverend Dada subjected him to a
hostile work environment based on his sexual orientation and
his disabilities.1 Demkovich alleges that Reverend Dada re-
peatedly and often subjected him to comments and epithets
showing hostility to his sexual orientation, and increased the
frequency and hostility after learning that Demkovich in-
tended to marry his partner and again as the date of the cere-
mony approached. After the ceremony, Reverend Dada de-
manded Demkovich’s resignation because his marriage vio-
lated Church teachings. Demkovich refused, and Reverend
Dada then fired him.
Demkovich also alleges that Reverend Dada repeatedly
harassed and humiliated him based on his weight and medi-
cal issues. According to Demkovich, his job did not call for
any particular physical-fitness requirements, and Reverend
Dada never connected his disparaging and humiliating com-
ments to Demkovich’s job performance. Demkovich alleges
1 After oral argument in this appeal, the Supreme Court held that dis-
crimination on the basis of sexual orientation amounts to discrimination
based on sex, generally prohibited in employment under Title VII of the
Civil Rights Act of 1964. Bostock v. Clayton County, 140 S. Ct. 1731 (2020);
accord, Hively v. Ivy Tech Cmty. College 853 F.3d 339 (7th Cir. 2017) (en
banc). Also, hostile environment claims may be pursued under the Amer-
icans with Disabilities Act. Ford v. Marion County Sheriff’s Office, 942 F.3d
839, 852 (7th Cir. 2019).
No. 19-2142 5
that Reverend Dada’s harassment on both grounds “humili-
ated and belittled” him, causing serious harm to his physical
and mental health.
Demkovich sued the St. Andrew parish and the Archdio-
cese of Chicago. The operative complaint asserts hostile envi-
ronment claims under both Title VII and the Americans with
Disabilities Act. The church moved to dismiss for failure to
state a claim, invoking the ministerial employee exception.
The district court granted the motion in part, dismissing the
Title VII claim but allowing the ADA claim to proceed. Dem-
kovich v. St. Andrew the Apostle Parish, 343 F. Supp. 3d 772, 789
(N.D. Ill. 2018).
This is an appeal under 28 U.S.C. § 1292(b). Defendants
persuaded the district court to certify a broad legal question,
not limited to the factual details of the particular case. See
Ahrenholz v. Board of Trustees of the Univ. of Illinois, 219 F.3d
674, 677 (7th Cir. 2000). The district court certified the follow-
ing question:
Under Title VII and the Americans with Disabil-
ities Act, does the ministerial exception ban all
claims of a hostile work environment brought
by a plaintiff who qualifies as a minister, even if
the claim does not challenge a tangible employ-
ment action?
A motions panel of this court agreed that the broad question
was suitable for interlocutory appeal under § 1292(b), and an
appeal under § 1292(b) brings up the whole certified order.
United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 609 (7th
Cir. 2000). Our review is de novo. See Anicich, 852 F.3d at 648.
6 No. 19-2142
II. The Ministerial Exception and Hostile Environment Claims
A. Origins and Purpose of the Ministerial Exception
To decide the question about extending the ministerial ex-
ception to hostile environment claims, we begin by looking to
its origins and purpose. In 2012, consistent with decisions of
every circuit, the Supreme Court recognized the ministerial
exception in Hosanna–Tabor. See 565 U.S. at 188 n.2 (collecting
cases). The Court affirmed summary judgment for the em-
ployer on the EEOC’s claim that a ministerial employee was
fired in retaliation after she asserted rights under the ADA.
The ministerial exception is not a statutory interpretation.
It is an application of the First Amendment: “Requiring a
church to accept or retain an unwanted minister, or punishing
a church for failing to do so, intrudes upon more than a mere
employment decision. Such action interferes with the internal
governance of the church, depriving the church of control
over the selection of those who will personify its beliefs.” 565
U.S. at 188. This kind of interference violates both the Free Ex-
ercise and Establishment Clauses of the First Amendment.
First, “[b]y imposing an unwanted minister, the state in-
fringes the Free Exercise Clause, which protects a religious
group’s right to shape its own faith and mission through its
appointments.” Id. Second, “[a]ccording the state the power
to determine which individuals will minister to the faithful
also violates the Establishment Clause, which prohibits gov-
ernment involvement in such ecclesiastical decisions.” Id. at
188–89.2
2The generic term “church” in Hosanna–Tabor and other ministerial
exception cases extends of course to religious bodies of any faith. In this
appeal, we attempt to restrict our use of the term “church” or “Church” to
No. 19-2142 7
This exception is not limited to religious discrimination
claims. It extends to sex, race, national origin, age, disability,
and now sexual orientation discrimination. Hosanna–Tabor
also made clear that the exception applies whether or not the
decision was grounded in religious doctrine. 565 U.S. at 194
(“The purpose of the exception is not to safeguard a church’s
decision to fire a minister only when it is made for a religious
reason.”). Hosanna–Tabor explained that the purpose of the
ministerial exception is to “ensure[] that the authority to select
and control who will minister to the faithful—a matter
‘strictly ecclesiastical’—is the church’s alone.” Id. at 194–95,
quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox
Church in North America, 344 U.S. 94, 119 (1952); accord, Our
Lady of Guadalupe School, 140 S. Ct. at 2055.
The Court said in Hosanna–Tabor that it was not deciding
the question we face here, whether the ministerial exception
applies to suits that do not result from the firing of a ministe-
rial employee: “The case before us is an employment discrim-
ination suit brought on behalf of a minister, challenging her
church’s decision to fire her. Today we hold only that the min-
isterial exception bars such a suit. We express no view on
whether the exception bars other types of suits, including ac-
tions by employees alleging breach of contract or tortious con-
duct by their religious employers.” 565 U.S. at 196. Because
Demkovich’s amended complaint addresses only his treat-
ment by his supervisor while he was employed and does not
refer specifically to defendants St. Andrew the Apostle Parish and the
Archdiocese of Chicago, or the Catholic Church as a whole, as appropri-
ate. We use “religious organization” and the like as our generic term.
8 No. 19-2142
challenge his firing, it falls into the area that Hosanna–Tabor
declined to reach.
B. Common Ground
To focus our discussion of the disputed issue, it may be
helpful to identify some important issues that are not dis-
puted.
First, the parties agree that churches are not exempt from
federal employment discrimination laws as applied to their
non-ministerial employees. (Title VII includes an exception
that allows religious employers to favor employment of peo-
ple of a particular religion, but that exception is not relevant
here. See 42 U.S.C. § 2000e-1(a).) As a general matter, it does
not violate the First Amendment to apply federal employ-
ment discrimination laws to churches and other religious em-
ployers.
Second, the parties agree that Demkovich was a “ministe-
rial employee” within the meaning of Hosanna–Tabor and Our
Lady of Guadalupe School. Hosanna–Tabor recognized the cate-
gory in the abstract, and the scope of the category was the
principal issue in Our Lady of Guadalupe School. We and other
courts have by now issued numerous opinions mapping the
boundaries between ministerial employees and others in a
host of religious communities and institutions. That issue is
not disputed here.
Third, the certified question assumes that plaintiff has al-
leged viable hostile environment claims under both Title VII
and the ADA, apart from the ministerial exception. We there-
fore do not dwell on the details of his factual allegations and
whether they add up to sufficiently severe or pervasive hos-
tility motivated by animus based on sex or disability.
No. 19-2142 9
Fourth, for purposes of this appeal, we also assume that
plaintiff would be able to establish a basis for employer liabil-
ity under Title VII and the ADA. As the interlocutory appeal
has been framed, there is no issue concerning the church’s li-
ability for Reverend Dada’s actions under Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc.
v. Ellerth, 524 U.S. 742 (1998), including their affirmative de-
fense in cases not involving tangible employment actions for
employers who can show they established channels for com-
plaints and that the employee failed to take reasonable ad-
vantage of those channels.
Fifth, the parties treat Reverend Dada’s alleged harass-
ment of Demkovich as motivated by his and the Church’s re-
ligious beliefs, if not actually required by those beliefs. This
motivation is assumed for the alleged harassment based on
both sexual orientation and disability.
C. The Dispute Over Hostile Environment Claims
Against this background of points of agreement, we can
focus on the disagreement here. As framed for this appeal,
that disagreement is over the answer to a rather broad and
abstract question of law: whether ministerial employee plain-
tiffs may ever bring hostile environment claims against reli-
gious employers. We do not address whether plaintiff Dem-
kovich can prove that he suffered a hostile work environment.
(That’s a matter for trial or perhaps summary judgment.) Nor
do we address, at this stage, whether some particular claims
by some ministerial employees might pose insoluble prob-
lems of entanglement. The question as framed here is whether
we can imagine any set of facts under which ministerial em-
ployees could bring hostile environment claims without run-
ning afoul of the Constitution. We can.
10 No. 19-2142
Religious organizations are not totally exempt from all le-
gal claims by ministerial employees. Defendants here recog-
nize that ministerial employees may be able to sue their em-
ployers and supervisors for at least some breaches of contract
and for torts, including those committed in an employment
relationship. Defendants also recognize that the criminal law
may reach crimes committed in the employment relationship.
Defendants argue that although the First Amendment does
not categorically bar those sorts of claims, it does categorically
bar all claims under federal discrimination statutes.
Plaintiff reminds us that he seeks only to apply a federal
statute as written, so that any constitutional restriction must
be justified as necessary to protect First Amendment liberties.
Plaintiff argues that the proper line is between a ministerial
employee’s challenge to tangible employment actions (hiring,
firing, job assignment, compensation, and the like), which is
not permitted, and a challenge to a discriminatorily hostile en-
vironment based on race, sex, age, national origin, or disabil-
ity. Plaintiff argues that a religious employer’s ability to take
tangible employment actions free of statutory liability gives
the employer ample freedom to “select and control” its min-
isterial employees. The First Amendment does not require,
says plaintiff, additional protection in the form of complete
immunity from hostile environment claims.
D. Circuit Court Decisions
The Supreme Court has not answered the question we face
here. Defendants and the dissenting opinion argue that we
have already decided this question in Alicea–Hernandez v.
Catholic Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003). We
wrote there: “The ‘ministerial exception’ applies without re-
No. 19-2142 11
gard to the type of claims being brought.” Defendants inter-
pret this sentence to bar all claims, including hostile environ-
ment claims, by a ministerial employee. That reading takes
the sentence out of context and reads it too broadly.
Alicea–Hernandez worked for the Archdiocese of Chicago
as Hispanic Communications Manager, but she resigned after
a year. She sued for sex and national origin discrimination,
alleging “poor office conditions,” exclusion from key
meetings, denial of resources and training she needed to do
her job, and constructive discharge. 320 F.3d at 700. She was
pro se when she filed her complaint, though she had counsel
by the time her case came to our court. See id. at 702. She did
not clearly delineate her claims by reference to causes of
action for wrongful termination and/or a hostile work
environment. Nor did our opinion, which did not mention
any hostile environment claim. Our description of her claims
in the opinion indicated that she was challenging tangible
employment actions such as denial of training and resources,
exclusion from meetings, and discharge. See, e.g., Lewis v. City
of Chicago, 496 F.3d 645, 653−54 (7th Cir. 2007) (denial of
training could be adverse employment action); Johnson v. City
of Fort Wayne, 91 F.3d 922, 932−33 (7th Cir. 1996) (exclusion
from meetings of supervisors could be adverse employment
action). The question before us today simply was not
presented in Alicea–Hernandez.3
3 Contrary to the dissenting opinion, Alicea–Hernandez’s allegations
of emotional distress and humiliation did not signal claims for a hostile
work environment. Unlawful discrimination in tangible employment de-
cisions—firings, denials of promotion, and the like—often causes humili-
ation and emotional distress. These are well-recognized elements of dam-
ages in such cases. See, e.g., Merriweather v. Family Dollar Stores of Indiana,
12 No. 19-2142
The limits of the Alicea–Hernandez language are also clear
when it is read in context. Defendants’ quotation appeared in
our rejection of plaintiff’s argument that the court should try
to distinguish between actions taken with secular motives and
those with religious motives:
The question for us to answer therefore is
whether Alicea–Hernandez’s position as
Hispanic Communications Manager can
functionally be classified as ministerial. Alicea–
Hernandez suggests that we also need to look to
the nature of her claims and whether the
discrimination in question was exclusively
secular. Here she is mistaken. The “ministerial
exception” applies without regard to the type of
claims being brought. This was explained by the
Fourth Circuit in EEOC v. Roman Catholic
Diocese:
[T]he ministerial exception to Title
VII is robust where it applies. …
Inc., 103 F.3d 576, 580−81 (7th Cir. 1996); Avitia v. Metropolitan Club of Chi-
cago, Inc., 49 F.3d 1219, 1227−29 (7th Cir. 1995); Federal Civil Jury Instruc-
tions of the Seventh Circuit § 3.10 (2015).
In addition, the dissenting opinion points out that Alicea–Hernandez
used the phrase “hostile environment” at several places in her appellate
brief. Post at 37. A closer look shows, however, that she was complaining
about unequal treatment in terms of resources (no computer, poor
furniture), limited training opportunities, and similar tangible conditions
of employment. Her brief did not articulate an otherwise viable theory of
hostile environment liability. See Brief of Plaintiff-Appellant, Alicea–
Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003) (No. 02-
2280), 2002 WL 32172619.
No. 19-2142 13
The exception precludes any in-
quiry whatsoever into the reasons
behind a church’s ministerial em-
ployment decision. The church
need not, for example, proffer any re-
ligious justification for its decision,
for the Free Exercise Clause “pro-
tects the act of a decision rather than
a motivation behind it.”
213 F.3d at 802 (quoting Rayburn [v. General Con-
ference of Seventh-Day Adventists, 772 F.2d 1164,
1169 (7th Cir. 1985)]). To rule otherwise would
enmesh the court in endless inquiries as to
whether each discriminatory act was based in Church
doctrine or simply secular animus. The Fifth Cir-
cuit has provided the following rationale for
this rule:
[A]n investigation and review of
such matters of church admin-
istration and government as a
minister’s salary, his place of as-
signment and his duty, which in-
volve a person at the heart of any
religious organization, could only
produce by its coercive effect the
very opposite of that separation of
church and State contemplated by
the First Amendment.
McClure [v. Salvation Army, 460 F.2d 553, 560
(5th Cir. 1972)].
14 No. 19-2142
It is therefore not our role to determine whether the
Church had a secular or religious reason for the al-
leged mistreatment of Alicea–Hernandez. The
only question is that of the appropriate charac-
terization of her position.
320 F.3d at 703 (emphases added).
In context, the sentence defendants rely upon was aimed
at challenges to tangible employment actions. It was not ad-
dressing the difference between tangible employment actions
and hostile environments. It was instead rejecting the argu-
ment that discriminatory tangible employment actions with
secular motives against a minister should be actionable. Our
holding on this point in Alicea–Hernandez anticipated the Su-
preme Court’s holding in Hosanna–Tabor: religious organiza-
tions may hire or fire ministerial employees for any reason,
religious or secular. 565 U.S. at 194–95. The quoted sentence
remains sound in context, but we did not embed in that sen-
tence an implied decision to create a split with the Ninth Cir-
cuit on the issue we face here.
Before Alicea–Hernandez, the Ninth Circuit had drawn a
line between tangible employment actions and hostile envi-
ronment claims. In Bollard v. California Province of Society of Je-
sus, 196 F.3d 940 (9th Cir. 1999), plaintiff had been training for
the priesthood. He alleged that his superiors subjected him to
sexual harassment so severe that he left the Jesuit order before
taking vows as a priest. The district court dismissed under the
then-emerging ministerial exception. See id. at 944.
The Ninth Circuit reversed, emphasizing that the case did
not present any challenge to “the Jesuit order’s choice of rep-
No. 19-2142 15
resentative, a decision to which we would simply defer with-
out further inquiry.” Id. at 947. The Jesuits also did not defend
the alleged harassment as motivated by religious faith; the
Jesuits condemned it.
The Ninth Circuit found that the Free Exercise Clause did
not require the courts to deny relief:
The Free Exercise Clause rationale for protect-
ing a church’s personnel decisions concerning
its ministers is the necessity of allowing the
church to choose its representatives using what-
ever criteria it deems relevant. That rationale
does not apply here, for the Jesuits most cer-
tainly do not claim that allowing harassment to
continue unrectified is a method of choosing
their clergy. Because there is no protected-
choice rationale at issue, we intrude no further
on church autonomy in allowing this case to
proceed than we do, for example, in allowing
parishioners’ civil suits against a church for the
negligent supervision of ministers who have
subjected them to inappropriate sexual behav-
ior.
196 F.3d at 947–48. A “generalized and diffuse concern” about
church autonomy was not enough to require dismissal. Id. at
948.
Bollard went on to consider the problem of entanglement
under the Establishment Clause. The court found there would
be no need to evaluate religious doctrine or the “reasonable-
ness” of Jesuit practices. Id. at 950. Finding there would be no
greater entanglement than in other private civil suits against
16 No. 19-2142
a church, the Ninth Circuit found no constitutional barrier to
the sexual harassment claim that did not challenge any tangi-
ble employment action.
The Ninth Circuit followed that same course in Elvig v.
Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004), and
drew essentially the same line we draw here. The plaintiff was
an ordained minister who alleged that a senior minister sex-
ually harassed her and retaliated against her. The district
court dismissed. Following Bollard, the Ninth Circuit held that
the plaintiff could not challenge any tangible employment de-
cisions but that she could pursue her hostile environment
claims, including damages for emotional distress and reputa-
tional harm. Id. at 953.4
The Tenth Circuit took a different approach in Skrzypczak
v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir.
2010), where the plaintiff was a ministerial employee and
sued for sex discrimination, including both tangible employ-
ment actions and a sexually hostile environment. The Tenth
Circuit affirmed dismissal of all claims, reasoning that even
4 The Ninth Circuit did not depart from Bollard and Elvig in Werft v.
Desert Southwest Annual Conf. of United Methodist Church, 377 F.3d 1099 (9th
Cir. 2004). The plaintiff there was a minister who sued for failure to ac-
commodate his disabilities. To avoid the ministerial exception, he tried to
invoke Bollard by casting his claim in terms of a hostile environment. The
Ninth Circuit rejected that attempt, correctly treating the claim for failure
to accommodate as one challenging tangible employment actions, thus
distinguishing Bollard and Elvig. See 377 F.3d at 1103−04. The Ninth Cir-
cuit’s decisions are thus consistent with each other. The dissenting opinion
treats Werft as having created an intracircuit split without saying so.
No. 19-2142 17
the hostile environment claim would pose too great a threat
of entanglement with religious matters. Id. at 1245.5
E. Tangible Employment Actions, Hostile Environments, and
the Free Exercise Clause
The ministerial exception is a matter of constitutional law,
not statute. Our Lady of Guadalupe School, 140 S. Ct. at 2055;
Hosanna–Tabor, 565 U.S. at 188. The question here is not
whether we believe as a matter of policy that religious em-
ployers should be exempt from hostile environment claims.
The question is whether that exemption is necessary under the
First Amendment. Bollard, 196 F.3d at 947. In terms of the Free
Exercise Clause, the answer is no.
The ministerial exception ensures that religious organiza-
tions are able to “select and control” their ministers without
interference from civil law like employment discrimination
statutes and their procedures for enforcement. Hosanna–Tabor,
565 U.S. at 195; accord, Our Lady of Guadalupe School, 140 S. Ct.
at 2060–61. That purpose can be accomplished by applying
the ministerial exception to all tangible employment actions,
which give religious employers ample tools to both select and
control their ministerial employees.
Selection is clear enough. Hiring, firing, promoting, retir-
ing, transferring—these are decisions that employers, includ-
ing religious organizations, make to select those who carry
5 The Tenth Circuit said it was following our decision in Alicea–
Hernandez, quoting the same sentence defendants emphasize here, to the
effect that “the ministerial exception applies without regard to the type of
claims being brought.” Skrzypczak, 611 F.3d at 1245, quoting Alicea–
Hernandez, 320 F.3d at 703. As explained above, we do not read Alicea–
Hernandez so broadly.
18 No. 19-2142
out their work. Further control is available through a host of
other tangible employment actions, including decisions about
compensation and benefits, working conditions, resources
available to do the job, training, support from other staff and
volunteers … the list could go on.
Employment discrimination law recognizes an employer’s
power to control work of its employees in these many ways.
That’s why employers are held accountable for these tangible
decisions when a manager makes such a decision with an un-
lawful purpose. See Ellerth, 524 U.S. at 762 (“Tangible employ-
ment actions are the means by which the supervisor brings
the official power of the enterprise to bear on subordinates”
and require “an official act of the enterprise”).
Hostile environment claims arise under the same statutes,
but they involve different elements and specially tailored
rules for employer liability. These differences show that a re-
ligious employer does not need exemption from such claims
to be able to “select and control” its ministers.
Hostile environment claims are essentially tortious in na-
ture. See Ellerth, 524 U.S. at 756–57; Faragher, 524 U.S. at 793–
94. They use different standards for holding an employer lia-
ble for actions that render the environment hostile, and they
do so precisely because the behavior that creates the hostile
environment is not essential for management supervision and
control of employees.
That different character of hostile environment claims be-
gan to emerge in the early cases. See, e.g., Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986) (collecting cases
on hostile environments). In Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), the Supreme Court developed the definition of
No. 19-2142 19
an actionable hostile work environment: “When the work-
place is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment, Title VII is violated.” Id. at 21, quoting
Meritor Savings Bank, 477 U.S. at 65, 67 (quotation marks omit-
ted). This is a demanding standard; a plaintiff’s evidence
must go well beyond showing rudeness or incivility, Faragher,
524 U.S. at 788 (standards are “sufficiently demanding to en-
sure that Title VII does not become a ‘general civility code’”);
Alamo v. Bliss, 864 F.3d 541, 550 (7th Cir. 2017), even if it need
not reach the point of “hellishness.” See Johnson v. Advocate
Health & Hospitals Corp., 892 F.3d 887, 901 (7th Cir. 2018).6
The lack of constitutional necessity for barring ministerial
employees’ hostile environment claims becomes clear from
the tort-law origins of the claims and the basis for employer
liability for them, as explained in Ellerth and Faragher. In those
decisions, the Court used the line between tangible employ-
ment actions and hostile environments to set different stand-
ards for employer liability.7
6 For statements of the elements of a viable hostile environment claim,
see, e.g., Johnson, 892 F.3d at 900; Passananti v. Cook County, 689 F.3d 655,
667 (7th Cir. 2012).
7 The dissenting opinion asserts that courts will not be able to distin-
guish between tangible employment actions and other wrongs. Post at 38.
In fact, federal courts have been applying that line for decades. That line
controls whether an employer may invoke the affirmative defense in Fa-
ragher and Ellerth. See Ellerth, 524 U.S. at 761 (“A tangible employment ac-
tion constitutes a significant change in employment status, such as hiring,
firing, failing to promote, reassignment with significantly different re-
sponsibilities, or a decision causing a significant change in benefits.”); id.
at 763; see also Federal Civil Jury Instructions of the Seventh Circuit
20 No. 19-2142
In general, “sexual harassment by a supervisor is not con-
duct within the scope of employment,” so the employer can-
not be held liable for that conduct. Ellerth, 524 U.S. at 757.
However, “an employer can be liable, nonetheless, where its
own negligence is a cause of the harassment,” id. at 759, or
where the supervisor takes tangible employment action
against the employee. Id. at 760−61; accord, Faragher, 524 U.S.
at 789–90. If no tangible employment action is taken, these
rules treat harassment as a tort committed by a supervisor
against an employee but acting outside the scope of the su-
pervisor’s employment.
Defendants here argue that their power as employers to
take tangible employment actions against ministerial employ-
ees does not give them enough power to “select and control”
those employees. But Harris teaches that a hostile work envi-
ronment simply is not a permissible means of exerting (con-
stitutionally protected) “control” over employees and accom-
plishing the mission of the business or religious organization.
510 U.S. at 23.
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 stat-
utes. These employers are thus able to control their employees
in every way that would be necessary to exercise their reli-
gious 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
§§ 3.05A & 3.05B (different instructions depending on whether claim is
based on tangible employment action).
No. 19-2142 21
by deciding his job duties, his place of work, his work sched-
ule, 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. Hosanna–
Tabor made clear that its holding does not cover “actions by
employees alleging … tortious conduct by their religious em-
ployers.” 565 U.S. at 196. The conduct plaintiff alleges here is
classic tortious harassment under Meritor Savings Bank, Harris,
Ellerth, Faragher, and countless other cases: his supervisor al-
legedly subjected him to a campaign of verbal abuse based on
his sex, sexual orientation, and disabilities, ultimately inter-
fering with his job performance and mental and physical
health.
An employer’s need and right to control employees
should not and does not embrace harassing behavior that the
Supreme Court has defined in numerous cases in terms of
what “unreasonably interferes with an employee’s work per-
formance.” Harris, 510 U.S. at 23. The notion that such harass-
ment is necessary to control or supervise an employee is, un-
der employment discrimination law, an oxymoron. We pre-
sume an employer is interested in maximizing the employee’s
ability to perform his or her stated duties to further the organ-
ization’s objectives, not in permitting a supervisor to “con-
trol” the employee through abuse that actively inhibits job
performance and is beyond the scope of that supervisor’s own
employment.8
8 The dissenting opinion suggests that the line between tangible em-
ployment actions and hostile environments creates “a perverse incentive”
22 No. 19-2142
The defendants have asserted at various times that Rever-
end Dada’s conduct was motivated by Catholic doctrine. That
conduct can lawfully be imputed to the Catholic Church as an
employer only if the Church embraced that conduct as its own
employment policy through constructive or actual knowledge
and failure to act. (Consider, for example, a case of similar
harassment aimed at a non-ministerial employee, where such
harassment would certainly be unlawful despite its religious
motive.) Hosanna–Tabor’s decision not to extend constitutional
protection to tortious conduct, in combination with the
Court’s understanding of hostile work environments as es-
sentially tortious in nature, point toward allowing hostile
work environment claims by ministerial employees so long as
they do not challenge tangible employment actions.
Hosanna–Tabor protects the rights of religious employers,
not supervisors within those religious organizations. That
feature of the ministerial exception lends further support to
our conclusion. The opinion speaks of “religious organiza-
tions” and “churches,” considering the rights of those entities
as employers. Because tangible employment actions are di-
rectly attributable to employers, holding that those claims are
off-limits to ministerial employees fits with Hosanna–Tabor’s
focus on the institutional rights of employers.
Hostile environment claims are quite different. They con-
cern the behavior of individual co-workers and/or supervi-
sors that is generally treated as outside the scope of employ-
ment. Such behavior may be attributable to the employer in
by encouraging employers to create an environment so hostile as to cause
a constructive discharge. Post at 39. We disagree. An employer who wants
to remove a ministerial employee may simply fire him, as defendants
eventually fired plaintiff here.
No. 19-2142 23
case of employer negligence or abuse of power over tangible
employment actions, such as decisions to fire, demote, etc.,
which are off limits with ministerial employees. Supervisors
within religious organizations have no constitutionally pro-
tected individual rights under Hosanna–Tabor to abuse those
employees they manage, whether or not they are motivated
by their personal religious beliefs. We do not address here the
genuineness or substance of Reverend Dada’s religious moti-
vations for his actions toward Demkovich. We note only that
Hosanna–Tabor grants him, personally, no special protection to
express his religious beliefs beyond that generally provided
by the Free Exercise Clause.
F. Consequences
The defendants and the dissenting opinion advocate cate-
gorically barring ministerial employees from bringing any
hostile work environment claim. With respect, this argument
reaches too far. We can agree with the dissent’s general state-
ments about religious liberty and the importance of the min-
isterial exception, at least in cases challenging the selection
and control of ministers. These statements about religious lib-
erty are not the whole story, however. We must also account
for the limits of Hosanna–Tabor and the reality that civil courts
may hear and decide a range of other cases involving minis-
ters and religious employers without violating the First
Amendment.
The defendants draw conclusions that depart from the or-
igins and purpose of the ministerial exception, and from the
careful balancing that courts use in these delicate encounters
between civil law and faith. In answering the abstract ques-
tion whether hostile work environment claims should ever be
available to ministerial employees, we must consider the full
24 No. 19-2142
range of facts that might prompt such employees to bring
such claims.
Within this circuit alone, such claims have been brought
on the basis of highly disturbing facts. For example, in Cerros
v. Steel Technologies, Inc., 288 F.3d 1040 (7th Cir. 2002), plaintiff
Cerros, who is Hispanic, was subjected to horrific racial har-
assment stemming from his supervisors’ explicit embrace of
the philosophy “if it ain’t white it ain’t right.” Co-workers and
supervisors harassed him with derogatory terms for Hispanic
people and painted racist graffiti on bathroom walls, includ-
ing “KKK” and “White Power.” Cerros’s tires were slashed in
the company parking lot. Despite Cerros’s repeated com-
plaints, the company never investigated or took any remedial
action. Id. at 1042–43.
In Henderson v. Irving Materials, Inc., 329 F. Supp. 2d. 1002
(S.D. Ind. 2004), plaintiff was the only Black employee of a
concrete company. He was subjected to racist jokes from the
start of his employment, but that was only the beginning of
the campaign of racist terror he suffered. Hendersonʹs work
uniform and truck were repeatedly vandalized. A co-worker
repeatedly insinuated that he belonged to the Ku Klux Klan;
when Henderson asked the co-worker directly whether he
had previously been in the KKK, their common supervisor
corrected Henderson, saying that the co-worker was still a
KKK member. The KKK member told Henderson and another
employee, again in a supervisor’s presence, that he’d like to
“drag [Henderson] … down the street on the back of my pick-
up truck,” and then tried to lure him outside. Another em-
ployee twice tried to hit Henderson with a truck in the com-
pany parking lot. The company had done nothing to stop the
harassment and terrorizing. Id. at 1006–08.
No. 19-2142 25
In Porter v. Erie Foods International, Inc., 576 F.3d 629, 635
(7th Cir. 2009), a Black employee repeatedly had a noose left
at his work station and suffered violent intimidation in the
workplace. In Brooms v. Regal Tube Co., 881 F.2d 412, 417 (7th
Cir. 1989), a supervisor repeatedly showed racist pornogra-
phy to an employee, threatened to force her to engage in bes-
tiality, and threatened to kill her. In EEOC v. Management Hos-
pitality of Racine, Inc., 666 F.3d 422, 428–30, 432 (7th Cir. 2012),
a restaurant manager sexually harassed and assaulted multi-
ple teenage employees, one during every single shift they
worked together. See also Smith v. Rosebud Farm, Inc., 898 F.3d
747, 749–50 (7th Cir. 2018) (plaintiff was subjected to four
years of groping, mimed sex acts, and racial slurs; he was
threatened with meat cleavers and his tires were slashed after
he reported workplace abuse to a supervisor); Gates v. Board
of Education, 916 F.3d 631, 637–39 (7th Cir. 2019) (plaintiff was
subjected to repeated use of vicious racial epithets; collecting
a number of other cases in which racial and sex-based abuse
constituted a hostile work environment). We could go on.
In their briefing and at oral argument in this case, defend-
ants acknowledged that a religious employer could be held
civilly liable for a supervisor’s criminal or tortious conduct to-
ward a ministerial employee, or for the pattern of racial abuse
and harassment described in Porter. Such cases would not
seem, then, to violate the supervisor’s or the employer’s con-
stitutional rights of free exercise of religion. If criminal or tort
cases do not, then it is hard to see why a statutory case based
on the same conduct would necessarily violate the First
Amendment, whether or not the supervisor claims a religious
motive. See, e.g., Bollard, 196 F.3d 940; Elvig, 375 F.3d 951.
26 No. 19-2142
Keeping in mind that the ministerial exception is driven
by constitutional necessity, see Hosanna–Tabor, 565 U.S. at 188;
Bollard, 196 F.3d at 947, we conclude that the First Amend-
ment does not require that supervisors and co-workers of
ministerial employees have the right, for example, to leave
nooses at the desk of a Black minister while repeatedly sub-
jecting him to verbal abuse with racial epithets and symbols,
or to subject a teacher to pervasive and unwelcome sexual at-
tention, or to subject another to intimidating harassment
based on national origin. Such harassment is not constitution-
ally necessary to “control” ministerial employees. We hope
that such extreme allegations against religious organizations
would be very rare. In answering the broad question defend-
ants present here, however, we must keep in mind the wide
range of religious organizations and the broad sweep of the
rule defendants advocate.
G. The Establishment Clause and Entanglement
Having concluded that hostile environment cases by min-
isterial employees do not categorically violate the Free Exer-
cise Clause, we turn to the Establishment Clause aspects of
the issue. Cases addressing the ministerial exception raise the
concern that litigation of particular types of claims against re-
ligious organizations will excessively entangle them with the
government. E.g., Bollard, 196 F.3d at 948–49; Elvig, 375 F.3d
at 956–57; see generally Agostini v. Felton, 521 U.S. 203, 233
(1997) (“Interaction between church and state is inevitable, …
. Entanglement must be ‘excessive’ before it runs afoul of the
Establishment Clause.”); Neely-Bey Tarik-El v. Conley, 912 F.3d
989, 1007 (7th Cir. 2019) (general rule is that, to constitute ex-
No. 19-2142 27
cessive entanglement, government action must involve intru-
sive government participation in, supervision of, or inquiry
into religious affairs).
The cases speak of both procedural and substantive entan-
glement. Defendants argue both are inevitable here. We are
not persuaded that excessive entanglement is so inevitable
that no plaintiff should be permitted to try to prove a case of
hostile environment. Courts have relatively little experience
with such cases against religious employers. Perhaps defend-
ants’ predictions of intolerable abuses and intrusions may
come true. At this time, however, we are not persuaded that
courts cannot manage a balance that respects the rights of
both churches and their employees.
Procedural entanglement “might … result from a pro-
tracted legal process pitting church and state as adversaries,”
in which the religious organization would be subjected to
“the full panoply of legal process designed to probe the mind
of the church,” including “far-reaching” remedies and “con-
tinued court surveillance of the church’s policies and deci-
sions” even after final judgment. Rayburn v. General Conference
of Seventh-Day Adventists, 772 F.2d 1164, 1171 (7th Cir. 1985).
Substantive entanglement occurs “where the Government is
placed in a position of choosing among competing religious
visions.” EEOC v. Catholic University of America, 83 F.3d 455,
465 (D.C. Cir. 1996) (quotation marks omitted). We consider
first procedural and then substantive entanglement.
1. Procedural Entanglement?
The potential for procedural entanglement does not justify
a categorical rule against all hostile environment claims by
ministerial employees. The defense arguments on procedural
28 No. 19-2142
entanglement face a major obstacle in the fact that religious
employers have long been subject to employment discrimina-
tion suits by their non-ministerial employees. We know that
the processes of civil litigation can be intrusive. No employer
welcomes them. But civil litigation of such claims against re-
ligious employers has not been deemed a sufficient basis to
require dismissal. Procedural entanglement is not necessarily
any more a concern with hostile environment claims by min-
isterial employees than with claims by non-ministerial em-
ployees.
On the subject of procedural entanglement, we find help-
ful guidance from Ohio Civil Rights Commission v. Dayton
Christian Schools, Inc., 477 U.S. 619 (1986). A state civil rights
commission started to investigate allegations that a religious
school discriminated against a teacher because of her sex. As
in Hosanna–Tabor, that teacher had agreed in her contract to
resolve disputes within the church itself. The school ulti-
mately fired her for complaining to the state government to
start a civil investigation, contrary to this commitment. Id. at
623.
The school sought a federal injunction against the state in-
vestigation based on what we would now call entanglement,
arguing “that any investigation of [the school’s] hiring pro-
cess or any imposition of sanctions for [its] nonrenewal or ter-
mination decisions would violate the Religion Clauses of the
First Amendment.” Id. at 624–25. The Supreme Court rejected
the claim, holding that the district court should have ab-
stained from exercising jurisdiction under Younger v. Harris,
401 U.S. 37 (1971), and its progeny. Dayton Christian Schools,
477 U.S. at 625.
No. 19-2142 29
Noting that “[e]ven religious schools cannot claim to be
wholly free from some state regulation,” the Court had “no
doubt that the elimination of prohibited sex discrimination is
a sufficiently important state interest” to justify Younger ab-
stention and also had “no reason to doubt that [the school]
will receive an adequate opportunity to raise its constitutional
claims” in state proceedings. Id. at 628. The Court gave no
weight to the argument that church disputes were to be re-
solved internally, according to its own doctrine. Dayton Chris-
tian Schools signals that an investigation of such an allegation
of discrimination does not threaten unconstitutional entan-
glement to the extent that the investigation must be shut
down as it begins.
That result is consistent with a broader landscape of litiga-
tion in civil courts involving churches. The Catholic Church
has itself faced extensive litigation over torts committed by
clergy in recent years, involving, for example, factual inquir-
ies into the relationships between clergy and parishioners and
into the internal disciplinary practices of the Church in the
context of allegations of sexual abuse of children. Constitu-
tional arguments do not foreclose such litigation. See, e.g.,
Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d
409, 430–32 (2d Cir. 1999); Malicki v. Doe, 814 So. 2d 347, 351–
57 & n.2 (Fla. 2002) (collecting cases); see also Elvig, 375 F.3d
at 959 (allowing a minister’s hostile work environment claim
to go forward where allegations would involve only “a purely
secular inquiry” and would not require court to pass on issues
of religious doctrine).
Given the scope of the ministerial exception and the lack
of any generalized immunity from litigation for religious or-
ganizations, the potential for procedural entanglement does
30 No. 19-2142
not bar plaintiff’s claims here entirely. Courts can deal with
procedural entanglement problems as they arise rather than
closing the courthouse doors to an entire category of cases.
2. Substantive Entanglement?
The more difficult problems arise here in terms of poten-
tial substantive entanglement. These are variations on a set of
problems that courts have managed in litigation involving re-
ligious organizations across a range of subject matters, from
contracts and property disputes to employment disputes,
torts, and church elections and schisms.
The general parameters are familiar. A civil court should
not try to decide questions of correct faith and practice, such
as deciding which of two rival groups seeking control of
church property has the better theological or doctrinal argu-
ments. At the same time, civil courts sometimes must decide
questions of property, contract, tax, or tort law in cases in-
volving churches. They may do so if they avoid issues of faith
and stick to applying neutral, secular principles of law. E.g.,
Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680,
695–700 (1989) (denying charitable deductions where quid
pro quo exchange for services was clear); Tony and Susan Al-
amo Foundation v. Sec’y of Labor, 471 U.S. 290, 305 (1985) (per-
mitting application of Fair Labor Standards Act to religious
employer); Bob Jones University v. United States, 461 U.S. 574
(1983) (affirming denial of university’s tax-exempt status
based on racial discrimination said to be based on religious
doctrine); Jones v. Wolf, 443 U.S. 595, 602–04 (1979) (resolving
property dispute between rival factions of local church);
NLRB v. Catholic Bishop, 440 U.S. 490, 503 (1979) (interpreting
statute to deny NLRB jurisdiction over lay teachers in church
No. 19-2142 31
schools); Serbian Eastern Orthodox Diocese for the U.S.A. v. Mil-
ivojevich, 426 U.S. 696, 708–09 (1976) (reversing state court de-
cision that set aside decisions of “mother church” defrocking
bishop, dividing diocese, and amending diocese constitu-
tions); Presbyterian Church in the U.S. v. Mary Elizabeth Blue
Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969) (re-
versing state court decision in property dispute that had been
based on court’s assessment of church doctrine); Kedroff v. St.
Nicholas Cathedral of Russian Orthodox Church in North America,
344 U.S. 94, 120–21 (1952) (striking down state statute trans-
ferring administrative control from Russian hierarchy to
leader of United States branch).
Applied to this case, federal courts would have no busi-
ness telling the Catholic Church what it should teach about
same-sex marriage any more than about the doctrine of the
Trinity or the relationship between faith and works. That easy
answer does not answer the question before us, however.
Defendants argue that Reverend Dada’s behavior toward
Demkovich’s sexual orientation was motivated by church
doctrine and that the manner in which he expressed or imple-
mented this doctrine should be shielded from judicial scru-
tiny. Defendants also contend that Reverend Dada’s supervi-
sion of Demkovich authorized him to harangue Demkovich
about his health: “Such comments would be viewed not as
harassment, but as the proper formation of a member of the
clergy.” The defendants’ embrace of the alleged harassment
could distinguish this case from those before the Ninth Cir-
cuit, in which the defendant churches disavowed the alleged
harassment. See Bollard, 196 F.3d at 947; Elvig, 375 F.3d at 959.
The district court accepted this argument in part, dismissing
32 No. 19-2142
Demkovich’s sexual orientation claim but allowing his disa-
bility claim to go forward because the Archdiocese offered a
Catholic doctrinal ground for the former but not the latter. See
Demkovich, 343 F. Supp. 3d at 786, 788.
We are not persuaded that the risk of substantive entan-
glement is so great that this case or all such cases must be dis-
missed without further inquiry or discovery. To violate the
Establishment Clause, entanglement must be “excessive.”
Agostini, 521 U.S. at 233. Plaintiff is not asking the court to pass
on the substance of the Catholic Church’s religious doctrines
or practices. Civil courts have nothing to say about whether
the Church should permit same-sex marriage, for example, or
whether the Church should have a hierarchical supervisory
structure. The Church was free to decide whether to retain
plaintiff as a minister or fire him. The government may not
interfere with that decision. But plaintiff’s hostile work envi-
ronment claims assert that some of those internal Church de-
cisions caused behavior that constituted abuse under neutral,
generally applicable standards that would be enforceable on
behalf of a non-ministerial employee, and could also be en-
forced in a hostile environment case by a ministerial em-
ployee. As in cases applying secular legal rules to torts, con-
tracts, or property disputes, courts may apply secular hostile
environment jurisprudence to actions taken toward employ-
ees.
We also find guidance from the line of Supreme Court
cases involving the limits of free exercise of religion. The Su-
preme Court has long held that civil courts may and some-
times must draw lines at times around the ways in which re-
ligious beliefs are expressed. Reverend Dada could have cho-
sen to express Church doctrine on same-sex marriage, or to
No. 19-2142 33
exercise his supervisory powers, in non-abusive ways that
would not add up to a hostile environment. Or consider the
more extreme abuse we summarized above that would be in-
sulated within religious organizations if we were to find that
unconstitutional entanglement is inevitable, as defendants
and the dissenting opinion argue.
“We have never held that an individual’s religious beliefs
excuse him from compliance with an otherwise valid law pro-
hibiting conduct that the State is free to regulate.” Employment
Division v. Smith, 494 U.S. 872, 878–79 (1990). Though aspects
of Smith have been superseded by statute, government regu-
lation of the outward expression of religious belief, where that
regulation is not intended to target or dampen particular reli-
gious practices per se, remains generally permissible, though
subject to a careful weighing of First Amendment freedoms
against the governmental interest in that particular regula-
tion. See Watson v. Jones, 80 U.S. 679, 714 (1871) (“Religious
organizations come before us in the same attitude as other
voluntary associations for benevolent or charitable purposes,
and their rights of property, or of contract, are equally under
the protection of the law, and the actions of their members
subject to its restraints.”); United States v. Lee, 455 U.S. 252,
260–61 (1982) (employer’s religious objections did not excuse
payment of social security taxes); Church of the Lukumi Babalu
Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993) (truly
neutral and generally applicable laws may be enforced
against churches and their practices); Gonzales v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 439 (2006)
(“Congress has determined that courts should strike sensible
balances, pursuant to a compelling interest test that requires
the Government to address the particular practice at issue;”
plaintiff religious organization won because the Government
34 No. 19-2142
failed to carry its burden, not because regulation was inher-
ently inapplicable to religious organizations).
Taking these lines of analysis together, we base our deci-
sion on three points. First, the Free Exercise Clause does not
bar all hostile environment claims by ministerial employees.
Second, the risk of procedural entanglement in such cases is
modest because religious organizations have no generalized
claim to immunity from litigation or regulation. Third, in hos-
tile environment cases brought by ministerial employees,
there is some risk of substantive entanglement, but that risk
does not appear so severe that all such claims must be dis-
missed. We believe that risk can be managed by avoiding sub-
stantive decisions on issues of religious doctrine or belief and
by balancing First Amendment rights with the employee’s
rights and the government’s interest in regulating employ-
ment discrimination. We trust that district courts will manage
these issues in their sound discretion. It is, of course, conceiv-
able that certain cases may unavoidably present factual ques-
tions that would entangle courts excessively in substantive re-
ligious decision-making. District judges can narrow or dis-
miss such cases if they arise. But the possibility of some outlier
cases does not persuade us that the First Amendment requires
courts to bar an entire category of claims authorized by fed-
eral statute.
The defendants and the dissenting opinion predict that
cases like this will inevitably and gravely violate the First
Amendment rights of religious institutions. Post at 43–44. We
take that possibility seriously, but the First Amendment is not
the only source of law and values that we must consider here.
Hostile environment claims by ministerial employees have
No. 19-2142 35
been few and far between. The federal courts have little expe-
rience with them. We believe it would be a mistake, and at
least very premature at this time, to conclude that all such
cases will inevitably violate the First Amendment and thus
must be barred.
* * * * *
We answer the certified question in the NEGATIVE. Ac-
cordingly, we AFFIRM the decision of the district court deny-
ing dismissal of the disability claim, and REVERSE its deci-
sion dismissing the sexual orientation claim. The case is
REMANDED for further proceedings consistent with this
opinion.
36 No. 19-2142
FLAUM, Circuit Judge, dissenting. In my judgment, control-
ling precedent requires dismissal of Demkovich’s claims. In
Alicea–Hernandez v. Catholic Bishop of Chicago, we held that the
ministerial exception barred all of the plaintiff’s employment
discrimination claims, including her hostile work environ-
ment claim. 320 F.3d 698, 702–04 (7th Cir. 2003). I would fol-
low that holding here. The Church’s First Amendment right
to select and control its ministers includes the ability to super-
vise, manage, and communicate with them free from govern-
ment interference. Adjudicating Demkovich’s hostile work
environment claims will unavoidably and excessively entan-
gle the courts in religious matters at the core of the protected
ministerial employment relationship. Accordingly, I respect-
fully dissent.
I. Alicea–Hernandez
My colleagues’ holding rests on their view that the plain-
tiff in Alicea–Hernandez did not assert a hostile work environ-
ment claim. But the complaint in Alicea–Hernandez alleged
both tangible employment action and an “intangible” hostile
work environment:
I was subjected to prolonged humiliation and
emotional stress of working under unequal and
unfair conditions of employment; was excluded
from management meetings, training and infor-
mation required for me to perform my duties;
was ordered evicted from the premises and re-
placed by a male Hispanic with less competence
and experience in Hispanic communication.
No. 19-2142 37
Id. at 702. By alleging “prolonged humiliation and emotional
stress of working under unequal and unfair conditions of em-
ployment,” the plaintiff asserted a hostile work environment
claim. Those allegations largely track the legal standard for
hostile work environment. See Harris v. Forklift Sys., Inc., 510
U.S. 17, 21 (1993) (stating that a hostile work environment
claim exists “[w]hen the workplace is permeated with dis-
criminatory intimidation, ridicule, and insult that is suffi-
ciently severe or pervasive to alter the conditions of the vic-
tim’s employment and create an abusive working environ-
ment”) (citation and internal quotation marks omitted); see
also Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 900
(7th Cir. 2018) (stating that whether allegedly discriminatory
conduct establishes a hostile work environment depends in
part on whether the conduct was “humiliating”).
Indeed, in appellate briefing, Alicea–Hernandez
repeatedly described her claim as a hostile work environment
claim. See Alicea–Hernandez, 320 F.3d 698, Br. of Plaintiff-
Appellant Gloria Alicea–Hernandez, 2002 WL 32172619, at
**4, 9, 12, 14, 16 & 20. What is more, my colleagues
acknowledge that Alicea–Hernandez asserted a constructive
discharge claim. The “[c]reation of a hostile work
environment is a necessary predicate to a hostile-environment
constructive discharge case.” Pennsylvania State Police v.
Suders, 542 U.S. 129, 149 (2004). Hence, my colleagues must
recognize that by dismissing Alicea–Hernandez’s
constructive discharge claim, we also dismissed her
“necessary predicate” hostile work environment claim.
Accepting that Alicea–Hernandez asserted a hostile work
environment claim, I conclude that the majority has not
convincingly addressed why we should resolve this case any
38 No. 19-2142
differently. We stated in Alicea–Hernandez that “[t]he
‘ministerial exception’ applies without regard to the type of
[employment discrimination] claims being bought.” 320 F.3d
at 703. My colleagues interpret that statement in context to
mean only that the ministerial exception applies without
regard to whether the employer asserts a religious
justification for the alleged discrimination. But even if my
colleagues’ narrow interpretation of that statement were
correct, that does not confront Alicea–Hernandez’s substantive
holding, which required the dismissal of the plaintiff’s
employment discrimination claims—including the hostile
work environment claim—under the ministerial exception.
The majority’s treatment of Alicea–Hernandez illustrates
the unworkable task they thrust upon district courts. Despite
Alicea–Hernandez’s own representations, the majority re-
characterizes her claim as “indicat[ing] that she was challeng-
ing tangible employment actions” rather than a hostile work
environment. But the majority provides only indeterminate
lists of what constitutes a tangible employment action: “hir-
ing, firing, promoting, deciding compensation, job assign-
ments, and the like“ as well as “decisions about compensation
and benefits, about working conditions, resources available to
do the job, training, support from other staff and volunteers
… the list could go on.” Beyond the indeterminacy of these
lists, the majority does not address how allegations of intan-
gible employment actions might indicate that the plaintiff has
challenged the actions on the lists such that a district court
must dismiss the minister’s entire employment discrimina-
tion claim, as we did in Alicea–Hernandez.
To the extent the majority opinion is reconcilable with
Alicea–Hernandez, I suggest the resulting rule creates a
No. 19-2142 39
perverse incentive for religious employers. Under the
majority’s rule, if a minister alleges that her work
environment was hostile without indicating that she is
challenging a tangible employment action, then the
ministerial exception does not protect the religious employer.
But if the religious work environment becomes so intolerable
that it prompts a constructive discharge, as in Alicea–
Hernandez, then the ministerial exception does protect the
religious employer.
Perhaps a minister could plead around the majority’s rule
by being careful to avoid challenging a tangible employment
action. However, there is no principled reason to allow such
artful pleading, and the majority does not offer much guid-
ance for religious employers, ministers, or courts to know
what allegations of intangible employment actions indicate
that the minister is instead challenging a tangible one.
Based in part on Alicea–Hernandez, the Tenth Circuit has
held that the ministerial exception bars hostile work environ-
ment claims. Skrzypczak v. Roman Catholic Diocese of Tulsa, 611
F.3d 1238, 1245 (10th Cir. 2010). My colleagues rely heavily on
two Ninth Circuit cases holding that the ministerial exception
does not categorically bar ministers’ hostile work environ-
ment claims where the religious employer denies or disavows
the conduct. See Elvig v. Calvin Pesbyterian Church, 375 F.3d
951, 963 (9th Cir. 2004); see also Bollard v. California Province of
the Soc’y of Jesus, 196 F.3d 940, 948 (9th Cir. 1999). But in Werft
v. Desert Southwest Annual Conference of United Methodist
Church, the Ninth Circuit subsequently affirmed the dismissal
of a hostile work environment claim under the ministerial ex-
ception because the claim was “a part of the employment re-
lationship between church and minister.” 377 F.3d 1099, 1103–
40 No. 19-2142
04 (9th Cir. 2004) (per curiam). Here, as in Werft, the hostile
work environment claims are a part of the ministerial employ-
ment relationship.
Although my colleagues characterize the claim at issue in
Werft as alleging tangible employment action, I find nothing
in that opinion to suggest that the Ninth Circuit rejected the
plaintiff’s characterization of his claim as a hostile work envi-
ronment claim. Rather, the Ninth Circuit explained that “[t]he
ministerial exception does not apply solely to the hiring and
firing of ministers, but also relates to the broader relationship
between an organized religious institution and its clergy,
termed the ‘lifeblood’ of the religious institution.” Werft, 377
F.3d at 1103 (quoting McClure v. Salvation Army, 460 F.2d 553,
558–59 (5th Cir. 1972), and emphasizing that matters “touch-
ing” the ministerial employment relationship are protected).
Indeed, it is the kind of parsing and recharacterizing of claims
that the majority advances that has led the Tenth Circuit to
conclude that a categorical approach “provides greater clarity
in the exception’s application and avoids the kind of arbitrary
and confusing application the Ninth Circuit’s approach has
created.” Skrzypczak, 611 F.3d at 1245. As discussed above,
however, I suggest one need look no further than our own
precedent to decide this appeal.
II. Protected Ministerial Employment Relationship
There are good reasons to follow our holding in Alicea–
Hernandez that the ministerial exception bars employment
discrimination claims without regard to the type of claim. As
the Supreme Court recently explained, the “First Amendment
protects the right of religious institutions ‘to decide for them-
selves, free from state interference, matters of church govern-
No. 19-2142 41
ment as well as those of faith and doctrine.’” Our Lady of Gua-
dalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020)
(quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox
Church in N. Am., 344 U.S. 94, 116 (1952)). A “church’s inde-
pendence on matters ‘of faith and doctrine’ requires the au-
thority to select, supervise, and if necessary, remove a minis-
ter without interference by secular authorities.” Our Lady of
Guadalupe, 140 S. Ct. at 2060.
Rooted in the religion clauses of the First Amendment, the
ministerial exception therefore “precludes application of [em-
ployment discrimination laws] to claims concerning the em-
ployment relationship between a religious institution and its
ministers.” Hosanna–Tabor Evangelical Lutheran Church & Sch.
v. E.E.O.C., 565 U.S. 171, 188 (2012) (collecting cases); see also,
e.g., E.E.O.C. v. Catholic Univ. of Am., 83 F.3d 455, 461 (D.C. Cir.
1996) (stating that the ministerial exception “precludes civil
courts from adjudicating employment discrimination suits by
ministers against the church or religious institution employ-
ing them”). A church must “not be constrained in its dealings
with [ministers] by employment laws that would interfere
with the church’s internal management, including antidis-
crimination laws.” Tomic v. Catholic Diocese of Peoria, 442 F.3d
1036, 1040 (7th Cir. 2006), abrogated in part on other grounds by
Hosanna–Tabor, 565 U.S. at 195 n.4.
The ministerial exception is an application of the church
autonomy doctrine, which “prohibits civil court review of
internal church disputes involving matters of faith, doctrine,
church governance, and polity.” Bryce v. Episcopal Church in
the Diocese of Colorado, 289 F.3d 648, 655 (10th Cir. 2002) (citing
Kedroff, 344 U.S. at 116–17). The exception “continues a long-
standing tradition that churches are to be free from
42 No. 19-2142
government interference in matters of church governance and
administration.” Gellington v. Christian Methodist Episcopal
Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000). The
“Constitution forbids us” from treading into “the internal
management of a church.” Combs v. Cent. Texas Annual
Conference of United Methodist Church, 173 F.3d 343, 350 (5th
Cir. 1999).
When assessing “employment discrimination claims by
ministers against their church, secular authorities would nec-
essarily intrude into church governance in a manner that
would be inherently coercive, even if the alleged discrimina-
tion were purely nondoctrinal.” Tomic, 442 F.3d at 1039 (quot-
ing Combs, 173 F.3d at 350). Hence, the ministerial exception
should bar Demkovich’s claims notwithstanding whether the
Church asserts a religious justification for the alleged con-
duct. The ministerial exception “precludes any inquiry what-
soever into the reasons behind a church’s ministerial employ-
ment decision.” Alicea–Hernandez, 320 F.3d at 703 (quoting
E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795,
801 (4th Cir. 2000)).
A. Free Exercise Clause
The application of employment discrimination laws “to
the employment relationship existing between” the Church
and Demkovich will “result in an encroachment by the state
into an area of religious freedom which it is forbidden to enter
by the principles of the free exercise clause of the First
Amendment.” Alicea-Hernandez, 320 F.3d at 702–03 (quoting
McClure, 460 F.2d at 560). The ministerial exception protects
the Church’s right to the free exercise of religion by “en-
sur[ing] that the authority to select and control who will min-
ister to the faithful—a matter ‘strictly ecclesiastical’—is the
No. 19-2142 43
church’s alone.” Hosanna–Tabor, 565 U.S. at 194–95 (quoting
Kedroff, 344 U.S. at 119). The Church’s “control over [its min-
isters] is an essential component of its freedom to speak in its
own voice, both to its own members and to the outside
world.” Hosanna–Tabor, 565 U.S. at 201 (Alito, J., joined by Ka-
gan, J., concurring). Control of a minister necessarily includes
the ability to supervise, manage, discipline, and communicate
with the minister, including by telling the minister that his
behavior does not conform with church doctrine and by in-
structing him to change his behavior. See Our Lady of Guada-
lupe, 140 S. Ct. at 2060 (stating that religious employers have
authority to “supervise” ministers free from government in-
terference).
According to the majority, a religious employer presuma-
bly “is interested in maximizing the employee’s ability to per-
form his or her stated duties to further the organization’s ob-
jectives, not in permitting a supervisor to ‘control’ the em-
ployee through abuse that actively inhibits job performance
and is beyond the scope of that supervisor’s own employ-
ment.” But courts are not equipped to say whether a religious
employer’s communications with its ministers inhibit or im-
prove their job performance, and it is not for courts to regulate
how a church communicates with its ministers to further its
religious objectives. Cf. Hernandez v. Comm'r of Internal Reve-
nue, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken
to question the centrality of particular beliefs or practices to a
faith, or the validity of particular litigants’ interpretations of
those creeds.”).
“[Q]uestions of church discipline and the composition of
the church hierarchy are at the core of ecclesiastical concern.”
44 No. 19-2142
Serbian E. Orthodox Diocese for U.S. of Am. & Canada v. Milivo-
jevich, 426 U.S. 696, 717 (1976). Courts “have no say over mat-
ters of religious governance.” Korte v. Sebelius, 735 F.3d 654,
678 (7th Cir. 2013). Attempting “to regulate the relationship
between” the Church and Demkovich will “infringe upon the
church’s right to be the sole governing body of its ecclesiasti-
cal rules and religious doctrine.” Gellington, 203 F.3d at 1304.
Beyond infringing on the Church’s free exercise rights in
this case, allowing ministers to bring hostile work environ-
ment 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 expo-
sure to liability rather than those that best “further [their] re-
ligious objective[s].” Elvig v. Calvin Presbyterian Church, 397
F.3d 790, 803–04 (9th Cir. 2005) (Kleinfeld, J., dissenting from
denial of rehearing en banc); see also Rayburn v. Gen. Conference
of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985)
(“There is the danger that churches, wary of [Equal Employ-
ment Opportunity Commission] or judicial review of their de-
cisions, might make them with an eye to avoiding litigation
or bureaucratic entanglement rather than upon the basis of
their own personal and doctrinal assessments of who would
best serve the pastoral needs of their members.”). Allowing
Demkovich’s employment discrimination claims to go for-
ward will therefore not only violate the Church’s free exercise
rights, but it threatens the free exercise rights of other reli-
gious employers, as well.
B. Establishment Clause
Applying employment discrimination statutes “to the em-
ployment relationship between” the Church and Demkovich
No. 19-2142 45
will also “involve ‘excessive government entanglement with
religion’ as prohibited by the Establishment Clause of the
First Amendment.” Gellington, 203 F.3d at 1304 (quoting
Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)). The majority
opinion essentially erases the distinction between ministers
and non-ministers as to hostile work environment claims. My
colleagues argue that “[p]rocedural entanglement is not nec-
essarily any more a concern with hostile environment claims
by ministerial employees than with claims by non-ministerial
employees.” Additionally, they contend that the conduct al-
leged here “constituted abuse under neutral, generally appli-
cable standards that would be enforceable on behalf of a non-
ministerial employee.” But unlike the relationship between a
non-minister and a church, the
relationship between an organized church and
its ministers is its lifeblood. The minister is the
chief instrument by which the church seeks to
fulfill its purpose. Matters touching this rela-
tionship must necessarily be recognized as of
prime ecclesiastical concern.
McClure, 460 F.2d at 558–59. By treating Demkovich’s em-
ployment relationship with the Church the same as that be-
tween a non-minister and a religious employer, the majority
opinion “misses the point of the ministerial exception,” which
is to “ensure[] that the authority to select and control who will
minister to the faithful—a matter ‘strictly ecclesiastical’—is
the church’s alone.” Hosanna–Tabor, 565 U.S. at 194–95 (quot-
ing Kedroff, 344 U.S. at 119).
“The types of investigations a court would be required to
conduct in deciding” Demkovich’s claims “‘could only pro-
46 No. 19-2142
duce by their coercive effect the very opposite of that separa-
tion of church and State contemplated by the First Amend-
ment.’” Skrzypczak, 611 F.3d at 1245 (quoting McClure, 460
F.2d at 560) (brackets omitted). “[T]he very process of in-
quiry” into his employment discrimination claims will violate
the First Amendment. N.L.R.B. v. Catholic Bishop of Chicago,
440 U.S. 490, 502 (1979).
In my view, my colleagues do not fully account for the de-
gree of entanglement with religion inherent in adjudicating
Demkovich’s hostile work environment claims. Indeed, the
risk of excessive religious entanglement is arguably even
greater when ministers base their employment discrimination
claims on intangible rather than tangible employment actions.
For intangible employment actions to be actionable under a
hostile work environment theory, the harassment must have
been “so severe or pervasive as to alter the conditions of em-
ployment.” Johnson, 892 F.3d at 900. Courts analyze hostile
work environment claims based “on all the circumstances, in-
cluding the frequency of the discriminatory conduct; its se-
verity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably in-
terferes with an employee’s work performance.” E.E.O.C. v.
Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018) (cita-
tion and internal quotation marks omitted). An affirmative
defense is available by showing that “the employer exercised
reasonable care to prevent and correct” the harassment and
that the plaintiff “unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the
employer or to avoid harm otherwise.” Burlington Indus., Inc.
v. Ellerth, 524 U.S. 742, 765 (1998); see also Faragher v. City of
Boca Raton, 524 U.S. 775, 807 (1998) (same).
No. 19-2142 47
Consequently, to assess Demkovich’s employment dis-
crimination claims, the district court will need to determine
whether his religious work environment was appropriate. Its
inquiry will necessarily delve into Demkovich’s terms and
conditions of employment and matters of the Church’s gov-
ernance and administration, including its employment rela-
tionship with Demkovich, its control over Demkovich, and
Demkovich’s workplace conditions. The court will have to de-
cide questions including: whether the alleged harassment was
so severe or pervasive as to alter Demkovich’s conditions of
ministerial employment; whether the Church took reasonable
action to prevent or correct the alleged harassment; what the
Church’s preventive or corrective processes were; and
whether Demkovich unreasonably declined to avail himself
of any of those preventive or corrective processes. To investi-
gate and evaluate the merits of the claims and the potential
affirmative defense,
every step the Church took to respond and react
to [Demkovich’s] claims will be reviewed by the
district court to determine whether it was rea-
sonable. Such an inquiry into whether the
Church exercised “reasonable care” will in-
volve, by necessity, penetrating discovery and
microscopic examination by litigation of the
Church’s disciplinary procedures and subse-
quent responsive decisions.
Elvig, 375 F.3d at 973 (Trott, J., dissenting). Allowing Dem-
kovich’s employment discrimination claims to overcome the
ministerial exception will “involve gross substantive and pro-
cedural entanglement with the Church’s core functions, its
48 No. 19-2142
polity, and its autonomy,” which is “precisely what the min-
isterial exception was designed to cover and to prevent.” Id.
at 976.
III. Other Causes of Action
Holding that Demkovich’s employment discrimination
claims must be dismissed would not give religious employers
the license to commit the “highly disturbing” acts that my col-
leagues imply it would. There are remedies for such acts, but
federal employment law does not afford them. The ministe-
rial exception does not confer general immunity from a min-
ister’s tort claims or from criminal laws. See, e.g., Tomic, 442
F.3d at 1040 (“A church could not subject its clergy to corporal
punishment or require them to commit criminal acts.”). But
describing hostile work environment claims in general as “es-
sentially tortious in nature” should not transform statutory
Title VII or ADA hostile work environment claims into torts.
See Ford v. Marion Cty. Sheriff’s Office, 942 F.3d 839, 852 (7th
Cir. 2019) (recognizing that hostile work environment claims
are based on Title VII and the ADA).
There is no suggestion that the conduct at issue here—
offensive and derogatory comments—gave rise to any claim
other than the employment discrimination claims arising
directly out of the protected ministerial employment
relationship. Torts are conceptually distinct because liability
for a tort generally does not accrue directly from a ministerial
relationship. Demkovich’s employment discrimination
claims, on the other hand, unavoidably involve religious
matters at the core of that relationship.
No. 19-2142 49
IV. Conclusion
In Alicea–Hernandez, we laid out a workable approach that
remains faithful to the religion clauses of the First Amend-
ment: The ministerial exception bars employment discrimina-
tion claims brought by ministers “without regard to the type
of claims being brought.” 320 F.3d at 703. I would follow that
approach here by holding that the ministerial exception bars
each of Demkovich’s employment discrimination claims.
With respect, I dissent.