IN GOD'S NAME
Where Faith Abides,
Employees Have Few Rights
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Nicole Bengiveno/The New York Times
Mary Rosati, a novice training to be a Roman Catholic
nun, was dismissed by her order after she was found to have cancer |
By DIANA B. HENRIQUES,
NYTimes on the Web, October 9, 2006
J. Jeffrey Heck, a lawyer in
Mansfield, Ohio, usually sits on management’s side of the table. “The only
employee cases I take are those that poke my buttons,” he said. “And this
one really did.”
His client was a middle-aged novice training to become a nun in a Roman Catholic
religious order in Toledo. She said she had been dismissed by the order
after she became seriously ill — including a diagnosis of breast cancer.
In her complaint, the novice, Mary Rosati, said she had visited her doctor with
her immediate supervisor and the mother superior. After the doctor
explained her treatment options for breast cancer, the complaint continued, the
mother superior announced: “We will have to let her go. I don’t
think we can take care of her.”
Some months later Ms. Rosati was told that the mother superior and the order’s
governing council had decided to dismiss her after concluding that “she was not
called to our way of life,” according to the complaint. Along with her
occupation and her home, she lost her health insurance, Mr. Heck said. Ms.
Rosati, who still lacks health insurance but whose cancer is in remission, said
she preferred not to discuss her experience because of her continuing love for
the church.
In court filings, lawyers for the diocese denied her account of these events.
If Ms. Rosati had worked for a business or almost any secular employer, she
might have prevailed under the protections of the Americans With Disabilities
Act. Instead, her complaint was dismissed in December 2002 by Judge James
G. Carr of the United States District Court for the Northern District of Ohio,
who decided that the order’s decision to dismiss her “was an ecclesiastical
decision” that was “beyond the reach of the court” because “the First Amendment
requires churches to be free from government interference in matters of church
governance and administration.”
Legislators and regulators are not the only people in government who have
drafted special rules for religious organizations. Judges, too, have
carved out or preserved safe havens that shield religious employers of all
faiths from most employee lawsuits, from laws protecting pensions and providing
unemployment benefits, and from laws that give employees the right to form
unions to negotiate with their employers.
Some of these exemptions are rooted in long traditions, while others have grown
from court decisions over the last 15 years. Together, they are expanding
the ability of religious organizations — especially religious schools — to
manage their affairs with less interference from the government and their own
employees.
The most sweeping of these judicial protections, and the one that confronted the
novice nun in Toledo, is called the ministerial exception. Judges have
been applying this exception, sometimes called the church autonomy doctrine, to
religious employment disputes for more than 100 years.
As a rule, state and federal judges will handle any lawsuit that is filed in the
right place in an appropriate, timely manner. But judges will almost never
agree to hear a controversy that would require them to delve into the doctrines,
governance, discipline or hiring preferences of any religious faith.
Citing the protections of the First Amendment, they have ruled with great
consistency that congregations cannot fully express their faith and exercise
their religious freedom unless they are free to select their own spiritual
leaders without any interference from government agencies or second-guessing by
the courts.
To do otherwise would be an intolerable government intrusion into employment
relationships that courts have called “the lifeblood” of religious life and the
bedrock of religious liberty, explained Edward R. McNicholas, co-chairman of the
national religious institutions practice in the Washington, D.C., office of
Sidley Austin, a law firm with some of the country’s largest religious
organizations among its clients.
Judges have routinely invoked the ministerial exception to dismiss lawsuits
against religious employers by rabbis, ministers, cantors, nuns and priests —
those “whose ministry is a core expression of religious belief for that
congregation,” as Mr. McNicholas put it.
But judges also have applied the exception to dismiss cases filed by the press
secretary at a Roman Catholic church, a writer for The Christian Science
Monitor, administrators at religious colleges, the disgruntled beneficiaries of
a Lutheran pension fund, the overseer of the kosher kitchen at a Jewish nursing
home and a co-founder of Focus on the Family, run by the conservative religious
leader James C. Dobson. Court files show that some of these people were
surprised to learn that their work had been considered a “core expression of
religious belief” by their employer.
Religious employers have long been shielded from all complaints of religious
discrimination by an exemption that was built into the Civil Rights Act of 1964
and expanded in 1972. That historic exemption allows them to give
preference in hiring to candidates who share their faith. In recent years,
some judges have also refused to interfere when religious groups have dismissed
lesbians, unwed mothers and adulterous couples, even if they profess the same
faith, because they have violated their employers’ religious codes.
A federal court decision has given religious broadcasters an exemption from some
of the fair-hiring requirements of the Federal Communications Commission, even
when they are hiring secretaries and receptionists. Two other decisions,
one in federal court affecting a Mormon church and the other in a state court of
appeals case involving a Roman Catholic nursing home, affirmed the right of
religious employers to dismiss employees whose faith changed after they were
hired.
“These are very difficult cases because they pull at some very fundamental
heartstrings,” said Steven C. Sheinberg, a lawyer at Outten & Golden,
specializing in employment law. “There’s our belief that employees should
be free of discrimination in their work, versus our belief that religious
organizations should be free to hire people who best help them fulfill their
religious mission, without the intrusion of government.”
Employees at religious institutions face other risks as well, thanks to pension
law exemptions granted by Congress and upheld by the courts. Religious
employers are exempt from Erisa, the federal pension law that establishes
disclosure requirements and conflict-of-interest restrictions for employee
pension plans. That exemption has given rise to several cases in which
workers at religious hospitals found that their pensions had vanished because of
practices that would not have been allowed under Erisa’s rules.
A related exemption frees religious employers from participating in the Pension
Benefit Guaranty Corporation, the government-run insurance program that provides
a safety net for corporate pension plans. And some significant court
decisions in labor disputes in the last several years have made it easier for
religious schools and colleges to resist collective bargaining efforts.
But for Mr. Heck, the question of whether these workplace exemptions are fair to
religious employees was crystallized by the case of Ms. Rosati, the novice nun
in Toledo.
He said the doctor involved in her case had been prepared to testify under oath
on Ms. Rosati’s behalf. The doctor “had quite a vivid memory about these
events.” In fact, Mr. Heck said, the doctor had cautioned the nuns who
accompanied Ms. Rosati that it would be virtually impossible for the ailing
novice to get affordable insurance anywhere else if she were dropped from the
diocesan health.
Lawyers for the diocese disputed Ms. Rosati’s account of that visit and denied
that health reasons were the causes of her rejection by the order, the Sisters
of the Visitation of Holy Mary, which is covered by the diocesan health plan.
For the court “to even begin to inquire into that decision-making process, we
believe, crosses the line set by the First Amendment,” said Gregory T. Lodge, a
lawyer for both the Toledo diocese and the order, which operates under papal
authority.
“I understand and absolutely appreciate that in matters of religion, the state
has no business meddling,” Mr. Heck said. “It would be unthinkable for a
judge to be able to say, ‘Hey, I don’t like the way you’re interpreting the Book
of Luke.’ ”
But what religious principle is offended when an employee simply grows old or
becomes ill, he asked. If the answer is “none,” he continued, judges
should be more willing to “look behind the curtain.”
Exemptions From Employee Suits
For 28 days last May, Lynette M. Petruska, a former nun who now lives in St.
Louis, thought she had finally found judges willing to listen to her complaint
against Gannon University, a coeducational Catholic college in downtown Erie,
Pa. As it turned out, she was wrong.
Ms. Petruska was educated in Catholic schools from kindergarten to college
commencement, graduated at the top of her law school class and practiced law for
several years before deciding to become a nun. In 1999, as she was working
toward taking her final vows, she became the first woman to serve as Gannon’s
chaplain.
Three years later she was demoted and, according to her complaint, effectively
forced out. In her lawsuit, she said this action was in response to her
having notified the administration of a case of sexual misconduct by a senior
university official, resisted efforts to cover up that case and opposed
proposals to weaken campus policies on sexual harassment. In 2004, she
sued, accusing the university administration of forcing her out simply because
she was a woman and because she had opposed the sexual harassment others
experienced on campus.
Gender bias claims against religious employers have generally been dismissed
under the ministerial exception. But some judges across the country have
been less quick to dismiss cases where sexual harassment or abuse of an employee
is involved. And unlike many other plaintiffs, Ms. Petruska claimed that
her supervisor had actually acknowledged to her that she was being demoted
solely because of her sex, not because of any religious doctrine.
Judge Sean J. McLaughlin of the United States District Court for the Western
District of Pennsylvania nevertheless ruled that Gannon was protected by the
First Amendment and the ministerial exception from any court interference in its
choice of chaplain. Gannon itself argued that it had many women in
leadership positions and that Ms. Petruska had resigned simply because she was
unhappy with a staff reorganization. But its fundamental argument was that
it would be unconstitutional for the court to second-guess these disputed
decisions.
“You may ask, ‘Why should these decisions go unquestioned?’ The reason is plain
and simple: The First Amendment protects a church’s right to freely exercise its
religion,” said Evan C. Rudert, a lawyer for the university. “And that
includes organizing itself as it chooses and selecting those who it believes
will serve best as its leaders — without interference from the courts.”
Then, last May, in a decision that caused considerable comment in legal circles
around the country, a federal appeals court panel reversed the trial judge’s
decision.
For four weeks, the prevailing law in Pennsylvania, New Jersey, Delaware and the
Virgin Islands — the jurisdiction of the United States Court of Appeals for the
Third Circuit — was that “employment discrimination unconnected to religious
belief, religious doctrine, or the internal regulations of a church is simply
the exercise of intolerance, not the free exercise of religion.”
Appellate Judge Edward R. Becker wrote that opinion; his colleague on the
three-judge panel, Judge D. Brooks Smith, filed a stinging dissent. A few
days later, Judge Becker died. On June 20, in a rare move, the Third
Circuit granted Gannon’s routine request to have the case reconsidered and named
Judge Smith to the new three-judge panel that would do so.
On Sept. 6, the new panel swept the earlier decision away, unequivocally
restoring the protections for religious employers that it had put in doubt.
As Judge Smith put it, the ministerial exception “applies to any claim, the
resolution of which would limit a religious institution’s right to choose who
will perform particular spiritual functions.”
Ms. Petruska, who has left her order and returned home to work at her old law
firm, describes herself as a feminist who is “committed to peace and freedom.”
She has a long history of putting her words into action — she has been arrested
at protest marches, most recently at an antiwar rally the day before the Iraq
war began, she said. She plans to appeal the ruling against her.
“I think this issue needs to be decided by the Supreme Court,” she said.
And she has hopes that the justices will agree with Judge Becker that, absent
some grounding in religious doctrine, sex discrimination by religious employers
is wrong.
No Recourse On Age Bias
Add age discrimination to that wish list, the Rev. John Paul Hankins says.
At 73, Mr. Hankins can look back on 50 years in a loving marriage, 40 years as a
minister in the United Methodist Church — and 3 years as the plaintiff in an
uphill court fight over his denomination’s mandatory retirement policy.
Eight months after he turned 70, that policy forced Mr. Hankins to leave his
pulpit in the historic Stony Brook Community Church in Stony Brook, N.Y., where
he had served for 37 years. He loved his flock and the feeling was mutual: the
congregation withheld part of its annual contribution to the regional church
that year to express its dismay.
“He had served for many, many years and wanted to continue to serve, and his
congregation wanted that, too,” said David S. Warren, a professor of computer
science at Stony Brook University who had been a member of the congregation for
more than 25 years but who left because of how Mr. Hankins was treated.
Mr. Hankins said he was suing because age discrimination is almost as hateful
and senseless to him as the racial segregation and bias against women that used
to be “mandatory policies” of his church.
“I feel, and have long felt, that discrimination in any form has no place in the
life of a faith community,” he said.
Under the federal age discrimination law, most employees of all but the smallest
businesses can sue if they are forced to retire for no other reason than that
they reached a certain birthday; increasingly, government and academic employees
have the same protection. But Mr. Hankins knows his complaint will probably
never come to trial simply because he is a clergy member trying to sue his
church. Indeed, court rulings around the country suggest that if he had been
forced out at any age and for almost any reason — for a deceptive reason, or
even for no reason at all — he would face the same judicial roadblock.
“I never, ever thought that the last years of my ministry would be involved in a
fight like this,” Mr. Hankins said.
Lawrence H. McGaughey, the lawyer for the regional Methodist governing body and
its bishop, acknowledged that there is a movement in the church to eliminate the
retirement rule opposed by Rev. Hankins. But if the rule is ultimately changed,
it should be the church’s decision, not a court’s, he said.
“Any private employer would feel the same way — they’d like to be able to make
these decisions without having to face the courts,” Mr. McGaughey said. “But the
difference is the First Amendment.”
He continued: “We’re talking about worship here. Are you going to go into church
and have someone standing there who was ordered to be there by the courts? There
are certain things a government just cannot do in this country.”
In September 2003, a federal trial judge on Long Island ruled that Mr. Hankins’s
complaint was barred by the ministerial exception. Last February, a federal
appeals court panel sent the case back, directing the trial judge to decide the
case by applying a 1993 federal law, the Religious Freedom Restoration Act,
rather than the ministerial exception doctrine. But there was little in the
instructions to the trial court to encourage Mr. Hankins.
He nevertheless thinks his complaint will eventually help his church see that
its mandatory retirement rule is unfair.
“I don’t need to win the case,” Mr. Hankins said. “I feel the movement of
history at work here, I really do. Ideas find their feet, and start to walk.”
State judges have been equally reluctant to interfere in disputes between
religious employers and their staff members — to the sad frustration of Rabbi
Isaac H. Celnik of Albuquerque.
Rabbi Celnik, one of the youngest men ever ordained in Conservative Judaism, was
just 30 when he was hired in 1971 as the spiritual leader of Congregation B’nai
Israel. Eight years later, he entered into a 30-year contract with the
synagogue, an arrangement his congregation endorsed by a margin of almost nine
to one, he said.
Then the medical problems began. In 1996, Rabbi Celnik was told he was in the
early stages of Parkinson’s disease; in April 2000, his wife, Peggy, was told
she had breast cancer. In October 2000, he said, the president of the
congregation’s governing board at the time suggested he retire on disability.
But the rabbi did not consider himself disabled and did not want to retire, he
said. He had two young children and a wife whose treatment required continuing
health insurance. He “loved the work, and loved the congregation,” he said.
Indeed, when the synagogue’s cantor resigned a month after the retirement
discussion, Rabbi Celnik proposed, and the board agreed, that he would take on
the cantor’s duties as well, he said.
But the relationship deteriorated as he tried to negotiate retirement terms that
would provide him and his family with adequate financial security. In January
2002, after those negotiations faltered, he was dismissed; in 2003, he sued. But
last February, the state’s court of appeals dismissed his case, based on the
ministerial exception, also called the church autonomy doctrine.
“We are sympathetic to Rabbi Celnik’s struggles with Parkinson’s and the
manifestation of the disease after so many years of service,” the chief judge
wrote. But he ruled that the dispute “is precisely the type of religious debate
that the church autonomy doctrine is intended to protect from judicial review.”
The congregation’s current president, Alan M. Chodorow, declined to discuss the
details of the dispute. “I do not want to talk about anything that might impair
our search for reconciliation and forgiveness” with Rabbi Celnik, he said. “But
I will say that we believe strongly in the separation of church and state, and
that the state should not have any part in choosing our spiritual leaders.”
But Mr. Chodorow said that he was sympathetic to the situation that this freedom
for congregations created for employees and that he believed that religious
institutions have to provide other protections by contract. Although clergy
members in many faiths work without formal contracts, the model contract in wide
use within Conservative Judaism provides that rabbis and cantors can terminate
the agreement without cause and seek binding arbitration to resolve disputes, he
said.
The church autonomy doctrine “takes away certain rights and this is put in
specifically for the purpose of preserving rights,” Mr. Chodorow said.
Rabbi Celnik and his wife continue to struggle with the financial and physical
burdens of his deteriorating health and her second episode of cancer. “They
don’t teach this in rabbinical school,” the rabbi said in a recent interview.
Teach what? Mrs. Celnik answered before he could: “Don’t get old. Don’t get
sick.”
Mr. McNicholas, the Sidley Austin lawyer, acknowledged that some “unjust and
sinful” treatment has been protected from litigation by the ministerial
exception. But he argued that “the openness of the religious process” would
remedy those situations, making it possible for a clergy member dismissed by one
congregation to find a home in another.
But what if they are sick? “That’s harder — and very troubling,” Mr. McNicholas
said. “But if you have a judge deciding it, that’s just too much intervention in
the process of deciding the hiring issues” at religious institutions. “There’s
no easy answer.”
Protections Against Unionization
The University of Great Falls, in Montana, has a tidy urban campus, a bold
crucifix-topped chapel, a master’s program in criminal justice and, according to
one student’s Internet posting, a cafeteria that serves pretty good spaghetti.
What the small Roman Catholic college doesn’t have is a faculty union.
It wasn’t for lack of trying. In 1995, the Montana Federation of Teachers, which
had unionized most of the public universities in Montana, asked the National
Labor Relations Board to recognize it as the collective bargaining agent for the
teaching staff at Great Falls.
“Some of the faculty members there traveled in circles that included professors
at the other schools,” recalled James McGarvey, who was president of the Montana
Federation of Teachers at the time. (It has since merged with the Montana
Education Association.) Teachers at those other campuses had better pay and more
favorable work rules, and some professors at Great Falls had expressed interest
in seeing whether the federation could help them as well, according to Mr.
McGarvey. “We felt we had a pretty strong showing,” he said.
J. C. Weingartner, a union lawyer who worked on the campaign, said that while
“pay did come into it, it wasn’t what got it started.” That spark was discontent
among some professors over the president’s appointing members to an important
advisory council who “did not reflect the views of the majority of the faculty”
in negotiations with the administration, he said. “So they felt their interests
would be better served with collective bargaining.”
The university, which has a new management team today, declined to comment on
the long legal battle.
But when the labor board held a hearing on the union’s request, the university’s
lawyers argued that the board had no jurisdiction because the university was a
religious institution, and to force it to negotiate with the union would violate
its religious liberty.
The university based its case largely on a 1979 decision in which the United
States Supreme Court ruled that the labor board’s jurisdiction did not extend to
religious schools. After that decision, which resulted in what is called the
Catholic Bishop doctrine, the board began case-by-case examinations to determine
whether the schools that came before it were sufficiently religious — whatever
their faith — to be exempt from its jurisdiction.
The University of Great Falls did not qualify, the board concluded in February
1996.
For the next seven years, the little Catholic college fought both the federal
labor board and the faculty union, keeping lots of lawyers busy and incurring
official charges of unfair labor practices in the process. In 2002, it won.
The federal appeals court panel in Washington ruled that a three-prong test
should be the labor board’s only standard for determining which schools were
religious enough to be exempt from the nation’s collective bargaining laws under
the Catholic Bishop decision.
Any school that is nonprofit, has a religious affiliation and presents itself to
the public as a religious institution must be exempted from jurisdiction, the
court said. And that included the University of Great Falls.
And the court ruled that the labor board’s old case-by-case approach had to stop
immediately. For the board even to conduct such inquiries raised serious issues
of religious freedom, the judges said.
Of course, some casually faithful or broadly tolerant schools that might
previously have failed to win a labor board exemption would easily pass the
court’s new test.
The appellate judges anticipated that complaint, and dismissed it. “If the
university is ecumenical and open-minded, that does not make it any less
religious, nor N.L.R.B. interference any less a potential infringement of
religious liberty,” they said.
David Strom, general counsel of the American Federation of Teachers in
Washington, doesn’t mince words about the impact of the Great Falls decision.
“It means that the difficulty of organizing a religiously affiliated college has
become enormous.”
Although federal statistics show that one of every seven colleges in the country
describes itself as a religious institution, it is not clear how far-reaching
the Great Falls decision will be. On its face, it would seem likely to reduce
any union-driven salary pressures on exempt religious schools, allowing them to
maintain more competitive tuition levels. However, some colleges that might be
eligible for an exemption under the new rules may already have collective
bargaining in place or may not oppose unions as fiercely as the Montana
university did.
And the decision limits only the protections of the National Labor Relations
Act. But last fall, in a case involving teachers at Catholic schools in Boston,
a federal district judge in Massachusetts ruled that part of another federal
labor statute called the Taft-Hartley Act could not be applied to
church-operated schools without raising First Amendment issues.
Notwithstanding the protracted battle in Great Falls, Catholic institutions are
not doctrinally opposed to collective bargaining, said Julie N. Secviar, senior
vice president for strategic resources for the Franciscan Sisters of Chicago
Service Corporation, which manages Catholic hospitals, nursing homes and
retirement communities.
In fact, the ethical health care directives of the United States Conference of
Catholic Bishops require “recognition of the rights of employees to organize and
bargain collectively without prejudice to the common good.”
Next, Exemptions for Hospitals?
At the other end of the spectrum stand the Seventh Day Adventists, a Christian
denomination with more than 14 million members worldwide. Like many
denominations, it provides global humanitarian relief and maintains a large
network of church schools and colleges, including Loma Linda University in
California. But it also operates the largest Protestant nonprofit health care
system in the country, with 38 hospitals in 10 states, 23 nursing homes and
44,000 employees.
And not one of those employees is in a union, for a very simple reason: The
church believes that collective bargaining “defies Christ’s admonitions that
behavior must be directed by individual conscience” and “is inherently
disruptive” of the church’s healing mission, as lawyers for the denomination
first explained to the national labor board in 1998.
The lawyers were responding to a petition by the California Nurses Association
to represent the nonsupervisory nurses employed at Ukiah Valley Medical Center.
As in the Great Falls case, the lawyers argued that the labor board had no
jurisdiction because the hospital was a religious institution and to force it to
recognize or bargain with a union would violate its freedom under the First
Amendment and the Religious Freedom Restoration Act.
As in the Great Falls case, the labor board ruled otherwise. The next step
should have been union balloting, explained Jeffrey A. Berman, the Sidley Austin
lawyer who represented the hospital in the case. But the nursing association
withdrew its petition and the case ended, he said.
According to the American Hospital Association, about one of every four of its
members has a religious affiliation. But the Adventists’ problem before the
labor board was that hospitals, unlike religious schools, were specifically
included in the board’s jurisdiction by Congress. The only labor-law
accommodation that Adventists have been able to win from Congress was a
provision in 1974 allowing church members to pay the equivalent of their union
dues to one of several agreed-upon secular charities, according to Mr. Berman.
Adventist hospitals are still waiting for their own Great Falls moment. As Mr.
Berman put it, “We’re not asking for carte blanche, for the ability to be exempt
from all laws — just with respect to what is unique about these hospitals.”
Andrew Lehren conducted computer analysis for this series, and
Donna Anderson provided online research assistance.
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