Sandor Demkovich v. St. Andrew the Apostle Parish

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 31, 2020
• Docket: 19-2142
• Status: Published

Opinion

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.