#Metoo Meets the Ministerial Exception: Sexual Harassment Claims by Clergy and the First Amendment's Religion Clauses

Forthcoming 2019, William & Mary Journal of Race, Gender, & Social Justice (formerly Journal of Women and the Law).

GWU Law School Public Law Research Paper No. 2018-13

GWU Legal Studies Research Paper No. 2018-13

62 Pages Posted: 30 Mar 2018 Last revised: 4 Dec 2018

See all articles by Ira C. Lupu

Ira C. Lupu

George Washington University Law School

Robert W. Tuttle

George Washington University Law School

Date Written: March 29, 2018

Abstract

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012), the Supreme Court unanimously held that the Religion Clauses of the First Amendment create a “ministerial exception” to certain employment laws. The ministerial exception bars claims by clergy of wrongful dismissal by religious institutions. In the years before Hosanna-Tabor, however, courts had ruled in four prominent decisions – two state, and two federal – that suits by clergy for sexual harassment based on a pervasively hostile environment could go forward, notwithstanding the ministerial exception. The rise of the #MeToo movement invites new and more detailed consideration of the tension between the policies behind sexual harassment law and the constitutional values protected by the ministerial exception.

Part I describes the contours of the ministerial exception, explains its constitutional provenance, and highlights the issues left open by Hosanna-Tabor. Part II addresses relevant developments in the law of sexual harassment, from the pioneering work of Professor Catherine MacKinnon, through and including the Supreme Court’s decisions in Burlington Industries v. Ellerth and Faragher v. City of Boca Raton.

Part III explores the leading judicial opinions on the relationship between sexual harassment law and the ministerial exception. These include the germinal state court decisions in Black v. Snyder (Minnesota) and McKelvey v. Pierce (New Jersey), and the path breaking 9th Circuit decisions in Bollard v. California Province of the Society of Jesus, and Elvig v. Calvin Presbyterian Church. In the law that has emerged, the ministerial exception bars adverse job action claims by clergy but does not bar hostile environment claims. That brief statement, however, masks the analytical complexities and constitutional concerns arising from the interplay between harassment law and the ministerial exception. The sources of tension include the affirmative defenses, requiring employer-created mechanisms for reasonable prevention and correction in sexual harassment cases, as well as matters of discovery and choice of remedies.

Part IV applies our theoretical and doctrinal insights to the major questions raised by this interplay. We explain why the ministerial exception is constitutionally sound, but nevertheless should not bar damage claims for pervasive, hostile environments based on sex. We offer a tort-based theory of harm as the underpinning of hostile environment doctrine; analyze the connection (if any) between religious belief and sexual harassment of clergy; and unpack constitutional questions of entanglement between church and state that may arise when religious institutions face hostile environment lawsuits. Our analysis should be of interest to scholars of employment law and the Religion Clauses, lawyers litigating such cases, and judges who must decide them.

Keywords: sexual harassment; employment discrimination; Title VII; establishment of religion; free exercise of religion; separation of church and state

Suggested Citation

Lupu, Ira C. and Tuttle, Robert W., #Metoo Meets the Ministerial Exception: Sexual Harassment Claims by Clergy and the First Amendment's Religion Clauses (March 29, 2018). Forthcoming 2019, William & Mary Journal of Race, Gender, & Social Justice (formerly Journal of Women and the Law).; GWU Law School Public Law Research Paper No. 2018-13; GWU Legal Studies Research Paper No. 2018-13. Available at SSRN: https://ssrn.com/abstract=3152640

Ira C. Lupu (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-7053 (Phone)

Robert W. Tuttle

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States

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