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 FEBRUARY 9, 2021 — DECIDED JULY 9, 2021 

____________________ 

Before SYKES, Chief Judge, and FLAUM, EASTERBROOK,

KANNE, ROVNER, WOOD, HAMILTON, BRENNAN, ST. EVE, and 

KIRSCH, Circuit Judges.1

BRENNAN, Circuit Judge. The ministerial exception, 

grounded in the First Amendment’s Religion Clauses, 

1 Circuit Judge Scudder did not participate in the consideration or 

decision of this case. 
2 No. 19-2142 

protects religious organizations from employment discrimination suits brought by their ministers. The question here is 

whether this constitutional protection applies to hostile work 

environment claims based on minister-on-minister harassment. We hold that it does.

I

St. Andrew the Apostle Parish in Calumet City, Illinois is 

a Roman Catholic church of the Archdiocese of Chicago.2 In 

September 2012, the church hired Sandor Demkovich as its 

music director, choir director, and organist. Reverend Jacek 

Dada, a Catholic priest and the church’s pastor, supervised 

Demkovich in these roles. Over the next two years, their relationship deteriorated, culminating in Demkovich’s termination by Reverend Dada in September 2014. Demkovich alleges

that Reverend Dada, who is not a defendant here, discriminated against him based largely on his sexual orientation and 

physical condition. 

Demkovich is a gay man. According to Demkovich, Reverend Dada repeatedly subjected him to derogatory comments and demeaning epithets showing a discriminatory 

animus toward his sexual orientation. The frequency and hostility of these remarks increased after Reverend Dada learned 

that Demkovich planned to marry his partner while still employed by the church. After Demkovich’s marriage in September 2014, Reverend Dada asked for his resignation and told 

him that his marriage was against the teachings of the 

2 On a motion to dismiss, we accept all well-pleaded facts from the 

amended complaint as true and view them in the light most favorable to 

the plaintiff. White v. United Airlines, Inc., 987 F.3d 616, 620 (7th Cir. 2021). 
No. 19-2142 3

Catholic Church. When Demkovich refused, Reverend Dada 

fired him. 

Demkovich also suffers from diabetes, metabolic syndrome, and weight issues. Before Demkovich’s termination, 

Reverend Dada allegedly made belittling and humiliating 

comments based on these conditions as well. Reverend 

Dada’s remarks, by Demkovich’s account, had no discernible 

connection with the terms of his employment and adversely 

affected his mental and physical health. 

Eventually, Demkovich sued the church and the Archdiocese for employment discrimination. In his initial complaint, 

Demkovich claimed the church fired him based on his sex, 

sexual orientation, marital status, and disability. He alleged 

the church therefore violated Title VII of the 1964 Civil Rights 

Act, 42 U.S.C. § 2000e-2 et seq., the Americans with Disabilities 

Act, 42 U.S.C. § 12112 et seq., and analogous state and county

laws. The church moved to dismiss Demkovich’s case under 

Federal Rule of Civil Procedure 12(b)(6) and raised the ministerial exception as an affirmative defense to his claims. The 

district court deemed Demkovich a minister protected by the 

exception, granted the church’s motion, and dismissed the

complaint in full, albeit without prejudice. 

In his amended complaint, Demkovich repackaged his

allegations of discriminatory termination as hostile work environment claims. The church again moved to dismiss and invoked the ministerial exception a second time. The district 

court granted this motion in part, dismissing Demkovich’s 

hostile work environment claims based on sex, sexual orientation, and marital status while allowing his disability-based 

hostile work environment claims to proceed. Demkovich v. St. 
4 No. 19-2142 

Andrew the Apostle Par., 343 F. Supp. 3d 772, 776, 789 (N.D. Ill. 

2018).3 

The district court held that the ministerial exception did 

not categorically bar Demkovich’s hostile work environment 

claims. Id. at 778–86. Protection under the ministerial exception instead turned on whether the plaintiff challenged a tangible or intangible employment action. Id. at 780. Claims 

based on tangible employment actions, such as termination, 

were categorically barred; claims based on intangible employment actions, such as discriminatory remarks and insults, 

were not. Id. at 778, 781–83. The district court reasoned that 

tangible employment actions implicated a minister’s employment status, and therefore the religious organization’s 

authority over that minister, in ways unlike intangible employment actions. Id. at 781–83. Because Demkovich alleged 

intangible employment actions in his amended complaint, the 

ministerial exception was not a “categorical bar” to his claims. 

Id. at 786. Rather, only concerns over excessive church-state 

entanglement—as when a religious organization proffers a religious justification for alleged conduct—could trigger the 

ministerial exception’s protection against intangible employment action claims. Id. at 784–86. For the district court, application of the ministerial exception to intangible employment 

actions depended on a case-by-case balancing. Id.

This balancing led the district court to dismiss Demkovich’s claims of a hostile work environment based on his 

sex, sexual orientation, and marital status. Id. at 786–87. 

3 In its second memorandum opinion and order, the district court held 

that Demkovich conceded his status as a minister. Demkovich, 343 F. Supp.

3d at 778.
No. 19-2142 5

Several factors supported protecting the church. First, the 

church offered a religious justification for Reverend Dada’s 

allegedly discriminatory remarks. Id. at 786. Second, Demkovich’s status as a minister implicated the church’s absolute 

right to choose its own ministers without civil interference. Id.

at 786–87. And third, practical and procedural concerns, including the need to probe for animus and intrusive discovery, 

favored applying the ministerial exception. Id. at 787. The balance tipped the other way for Demkovich’s disability-based 

hostile work environment claims, however. Id. at 787–88. The 

church offered no religious justification for these claims, so 

the district court did not see the same risks of excessive entanglement present in adjudicating the sex, sexual orientation, 

and marital status claims. Id. at 788. With only Demkovich’s 

disability claims remaining, discovery began. 

On the church’s motion, the district court then certified a 

controlling question of law to this court under 28 U.S.C. 

§ 1292(b): 

Under Title VII and the Americans with Disabilities 

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 employment action?

A motions panel of this court accepted this interlocutory appeal. 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); see BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1539–40 (2021). We “may address any 

issue fairly included within the certified order because ‘it is 

the order that is appealable, and not the controlling question 

identified by the district court.’” Yamaha Motor Corp., U.S.A. v. 
6 No. 19-2142 

Calhoun, 516 U.S. 199, 205 (1996) (quoting 9 J. MOORE & B.

WARD, MOORE’S FEDERAL PRACTICE ¶ 110.25[1], p. 300 (2d ed. 

1995)). A divided panel affirmed the district court’s decision 

denying dismissal of Demkovich’s disability-based hostile 

work environment claim, and reversed its dismissal of his sex, 

sexual orientation, and marital status claims. Demkovich v. St. 

Andrew the Apostle Par., 973 F.3d 718 (7th Cir. 2020). We vacated the panel opinion and reheard this interlocutory appeal 

en banc. Our review is de novo. Degroot v. Client Servs., Inc., 

977 F.3d 656, 659 (7th Cir. 2020). 

II

A 

The First Amendment provides that “Congress shall make 

no law respecting an establishment of religion, or prohibiting 

the free exercise thereof.” U.S. CONST. amend. I. From the Establishment Clause and the Free Exercise Clause flows the 

ministerial exception, which “ensures that the authority to select and control who will minister to the faithful—a matter 

‘strictly ecclesiastical’—is the church’s alone.” Hosanna-Tabor 

Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 

194–95 (2012) (quoting Kedroff v. Saint Nicholas Cathedral of 

Russian Orthodox Church in North America, 344 U.S. 94, 119 

(1952)). These Religion Clauses “often exert conflicting pressures.” Cutter v. Wilkinson, 544 U.S. 709, 719 (2005). But when 

it comes to the ministerial exception, they work in unison toward the common goal of protecting the employment rights 

of religious organizations. Our Lady of Guadalupe School v. 

Morrissey-Berru, 140 S. Ct. 2049, 2060 (2020) (“Under this rule, 

courts are bound to stay out of employment disputes 
No. 19-2142 7

involving those holding certain important positions with 

churches and other religious institutions.”). 

The interests implicated by the ministerial exception have 

a rich lineage. See Our Lady of Guadalupe, 140 S. Ct. at 2061–62 

(describing British and early American law on ministers and 

religious education); Hosanna-Tabor, 565 U.S. at 182–85 

(chronicling the “background” against which “the First 

Amendment was adopted”).Questions over the boundary between religious and civil authority have been present since 

the founding. See generally Michael McConnell, The Origins 

and Historical Understanding of Free Exercise of Religion, 103 

HARV. L. REV. 1409, 1464–65 (1990) (explaining that religious 

organizations from the founding have been able “to define 

their own doctrine, membership, organization, and internal 

requirements without state interference”). Supreme Court 

precedent reflects repeated engagement with that boundary

and teaches that avoidance, rather than intervention, should 

be a court’s proper role when adjudicating disputes involving 

religious governance. See, e.g., Serbian E. Orthodox Diocese for 

United States and Canada v. Milivojevich, 426 U.S. 696, 697–99, 

724–25 (1976) (dispute over control of church property and 

appointment of bishops); Kedroff, 344 U.S. at 95–96, 120–21 

(same); Watson v. Jones, 80 U.S. 679, 713–15, 727–29 (1872) (dispute over control of church property); see also Hosanna-Tabor, 

565 U.S. at 185–87 (describing the holdings of these cases). By

rejecting civil intrusion into the religious sphere, these decisions developed the doctrine of “church autonomy.” Our Lady 

of Guadalupe, 140 S. Ct. at 2061. This well-established principle 

means what it says: churches must have “independence in 

matters of faith and doctrine and in closely linked matters of 

internal government.” Id. 
8 No. 19-2142 

The ministerial exception follows naturally from the 

church autonomy doctrine. In McClure v. Salvation Army, a female employee of the Salvation Army—an “officer” within 

this religious charity organization—alleged sex discrimination in violation of Title VII. 460 F.2d 553, 555–56 (5th Cir. 

1972). The Fifth Circuit held that she was a minister, and the 

First Amendment barred her claim as a result. Id. at 556–61. In 

doing so, it recognized that “[t]he relationship between an organized church and its ministers is its lifeblood” and “[m]atters touching this relationship must necessarily be recognized 

as of prime ecclesiastical concern.” Id. at 558, 559. Deciding

the minister’s Title VII claim would intrude upon this sacred

relationship, so the Fifth Circuit forbade it. Id. at 560–61. 

In Hosanna-Tabor, the Supreme Court unanimously endorsed the ministerial exception. There, a teacher sued an 

Evangelical Lutheran school for unlawful retaliation under 

the ADA. Hosanna-Tabor, 565 U.S. at 177–79. The Court held 

that the teacher was a minister, so it barred her claim. Id. at 

191–94. Recognizing the central importance of ministers to religious organizations, the Court concluded that allowing an 

employment discrimination suit against the school would 

contravene both the Free Exercise Clause (“which protects a 

religious group’s right to shape its own faith and mission 

through its appointments”) and the Establishment Clause 

(“which prohibits government involvement in such ecclesiastical decisions”). Id. at 188–89. For the Court, “[r]equiring 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.” Id. at 188. This sort of civil intrusion

“interferes with the internal governance of the church” by 

“depriving the church of control over the selection of those 

who will personify its beliefs.” Id. The Court’s decision was 
No. 19-2142 9

the result of not only its past church autonomy jurisprudence, 

but also of what had long been held by the circuit courts: ecclesiastical independence in employment was of prime importance. See id. at 185–88. In the end, between the “interest of 

society in the enforcement of employment discrimination 

statutes” and “the interest of religious groups in choosing 

who will preach their beliefs, teach their faith, and carry out 

their mission,” the Court held that “the First Amendment has 

struck the balance for us.” Id. at 196. 

Our Lady of Guadalupe recently reiterated Hosanna-Tabor’s 

holding. The Court in Our Lady of Guadalupe confronted the 

consolidated appeals of two Catholic school teachers who alleged discriminatory terminations in violation of the ADA 

and the Age Discrimination in Employment Act of 1967, 29 

U.S.C. § 621 et seq., respectively. 140 S. Ct. at 2056–59. Because

there existed “abundant record evidence that they both performed vital religious duties,” the ministerial exception 

barred the employment discrimination suits of the two teachers. Id. at 2066. Although Our Lady of Guadalupe mainly

concerned how to define ministerial status, the decision emphasized that “a church’s independence on matters ‘of faith 

and doctrine’ requires the authority to select, supervise, and 

if necessary, remove a minister without interference by secular authorities.” Id. at 2060 (quoting Kedroff, 344 U.S. at 116). 

This was because “[w]ithout that power, a wayward minister’s preaching, teaching, and counseling could contradict the 

church’s tenets and lead the congregation away from the 

faith.” Our Lady of Guadalupe, 140 S. Ct. at 2060 (footnote omitted). Simply put, “[t]he ministerial exception was recognized 

to preserve a church’s independent authority in such matters.” Id. at 2060–61. Hosanna-Tabor first endorsed the 
10 No. 19-2142 

ministerial exception, and Our Lady of Guadalupe confirmed its

strength. 

From Hosanna-Tabor and Our Lady of Guadalupe, we take 

two principles. First, although these cases involved

allegations of discrimination in termination, their rationale is 

not limited to that context. The protected interest of a

religious organization in its ministers covers the entire 

employment relationship, including hiring, firing, and 

supervising in between. See id.; Hosanna-Tabor, 565 U.S. at 188, 

194–96. Second, we cannot lose sight of the harms—civil 

intrusion and excessive entanglement—that the ministerial 

exception prevents. See, e.g., Our Lady of Guadalupe, 140 S. Ct. 

at 2060–61, 2069; Hosanna-Tabor, 565 U.S. at 187–89. Especially 

in matters of ministerial employment, the First Amendment 

thus “gives special solicitude to the rights of religious 

organizations.” Hosanna-Tabor, 565 U.S. at 189. 

B

With these precedents in mind, we consider Demkovich’s 

hostile work environment claims. Cf. Hosanna-Tabor, 565 U.S. 

at 196 (“There will be time enough to address the applicability 

of the exception to other circumstances if and when they 

arise.”). To succeed on a hostile work environment claim, a 

plaintiff must show: (1) unwelcome harassment; (2) based on 

a protected characteristic; (3) that was so severe or pervasive 

as to alter the conditions of employment and create a hostile 

or abusive working environment; and (4) a basis for employer 

liability. Howard v. Cook Cnty. Sheriff’s Off., 989 F.3d 587, 600 

(7th Cir. 2021).4 Demkovich proceeds under Title VII and the 

4 At times, this court has recited this test differently, “looking instead 

for evidence that the workplace was both subjectively and objectively 
No. 19-2142 11

ADA. Under either Act, and no matter the alleged animus, the 

elements of a hostile work environment remain the same. Ford 

v. Marion Cnty. Sheriff’s Off., 942 F.3d 839, 856 (7th Cir. 2019) 

(the ADA); EEOC v. Costco Wholesale Corp., 903 F.3d 618, 624–

25 (7th Cir. 2018) (Title VII). For its part, the ministerial exception operates as an affirmative defense to employment discrimination claims, Hosanna-Tabor, 565 U.S. at 195 n.4, turning

on the function of the employee and safeguarding all faiths. 

See Our Lady of Guadalupe, 140 S. Ct. at 2060, 2066–67. 

A hostile work environment is based on the totality of the 

circumstances. Courts consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether 

it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). This 

inquiry is “fact intensive.” Howard, 989 F.3d at 604. For example, we account for “the specific circumstances of the working 

environment” as well as “the relationship between the harassing party and the harassed.” Robinson v. Sappington, 351 F.3d 

317, 330 (7th Cir. 2003). Finding a hostile work environment, 

then, “is not, and by its nature cannot be, a mathematically 

precise test.” Harris, 510 U.S. at 22. But when proved, one 

thing is certain: “the work environment was so pervaded by 

discrimination that the terms and conditions of employment 

offensive—either in lieu of the first prong—that the employee was subject 

to unwelcome harassment—or the third prong—whether the harassment 

was severe or pervasive enough to rise to the level of a hostile work environment.” Johnson v. Advoc. Health & Hosps. Corp., 892 F.3d 887, 900 (7th 

Cir. 2018). But “[i]n the end, we have concluded that the inquiry is the 

same.” Id. 
12 No. 19-2142 

were altered.” Vance v. Ball State Univ., 570 U.S. 421, 427 (2013); 

accord Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). 

III

This case concerns what one minister, Reverend Dada,

said to another, Demkovich. Adjudicating Demkovich’s allegations of minister-on-minister harassment would not only 

undercut a religious organization’s constitutionally protected 

relationship with its ministers, but also cause civil intrusion 

into, and excessive entanglement with, the religious sphere. 

Judicial involvement in this dispute would depart from 

Hosanna-Tabor and Our Lady of Guadalupe and threaten the independence of religious organizations “in a way that the First 

Amendment does not allow.” Our Lady of Guadalupe, 140 S. Ct.

at 2069. 

A 

Demkovich’s hostile work environment claims challenge 

a religious organization’s independence in its ministerial 

relationships. A judgment against the church would legally

recognize that it fostered a discriminatory employment 

atmosphere for one of its ministers. See Harris, 510 U.S. at 21–

23. So the church, like any other employer, must have 

necessarily failed in supervision and control, either directly or 

indirectly. See Johnson, 892 F.3d at 904 (“[E]mployers are 

strictly liable for the discriminatory acts perpetrated by 

supervisors and they are liable for the discriminatory acts of 

others—coworkers, independent contractors, customers, 

inmates etc.—only if they are negligent either in discovering 

or remedying the harassment.”). And if Demkovich succeeds 

in his suit, it means his ministerial work environment “was so 
No. 19-2142 13

pervaded by discrimination that the terms and conditions of 

employment were altered.” Vance, 570 U.S. at 427. 

But Hosanna-Tabor and Our Lady of Guadalupe teach that 

ministerial employment is fundamentally distinct. As the 

Court emphasized in Hosanna-Tabor, “[t]he members of a religious group put their faith in the hands of their ministers.” 

565 U.S. at 188. A minister is the “chief instrument” for a religious organization “to fulfill its purpose.” McClure, 460 F.2d 

at 559. Only through a minister does a religious organization 

speak in its own voice and spread its own message. See 

Hosanna-Tabor, 565 U.S. at 188. In precluding termination 

claims by ministers, Hosanna-Tabor and Our Lady of Guadalupe

recognize that a minister’s religious significance makes this 

employment relationship different than others, and deservedly so. See Our Lady of Guadalupe, 140 S. Ct. at 2055, 2060; 

Hosanna-Tabor, 565 U.S. at 195. Just as a religious organization 

“must be free to choose those who will guide it on its way,” 

so too must those guides be free to decide how to lead a religious organization on that journey. Hosanna-Tabor, 565 U.S. at 

196. 

A minister’s legal status recognizes that ministerial employment differs from nonreligious employment, or even 

from nonministerial employment within a religious organization. See Robinson, 351 F.3d at 330 (noting we consider “the 

specific circumstances of the working environment” as well 

as “the relationship between the harassing party and the harassed”). Take Demkovich for example. As music director, 

choir director, and organist for the church, Demkovich assisted in the celebration of Mass by priests, Reverend Dada 

included. His participation in the liturgy was the reason for 

his work. See Our Lady of Guadalupe, 140 S. Ct. at 2063–64; 
14 No. 19-2142 

Hosanna-Tabor, 565 U.S. at 191–92. No other employer, besides 

a religious one, could impose this type of work requirement 

upon Demkovich. The work environment of a minister thus 

differs from the work environment of any other employee. Because ministers and nonministers are different in kind, the 

First Amendment requires that their hostile work environment claims be treated differently. 

Religion permeates the ministerial workplace in ways it 

does not in other workplaces. Ministers, by their religious position and responsibilities, produce their employment environment. From giving a rabbinic sermon on a Jewish holy day

to leading a mosque in a call to prayer, ministers imbue a religious organization with spirituality. Given a minister’s role 

in the religious organization’s practice of the faith, allowing 

hostile work environment claims here “intrudes upon more 

than a mere employment decision.” Hosanna-Tabor, 565 U.S. 

at 188. Put differently, analyzing a minister’s hostile work environment claim based on another minister’s conduct is not 

just a legal question but a religious one, too. 

As personnel is policy, employees are environment. If “the 

relationship between an organized church and its minister is 

its lifeblood,” then the relationship between its ministers is its 

backbone. McClure, 460 F.2d at 558. Interaction between ministers is critical to a religious organization and its mission. 

Demkovich’s duties were liturgical by nature. How Demkovich’s employment ended—with a dispute over religious 

doctrine—cements the religious character of their relationship. As the Court stated in Our Lady of Guadalupe: “The 

ministerial exception was recognized to preserve a church’s 

independent authority in such matters.” 140 S. Ct. at 2060–61. 

Reverend Dada’s supervision of Demkovich is such a matter. 
No. 19-2142 15

The contours of the ministerial relationship are best left to 

a religious organization, not a court. Within a religious organization, workplace conflict among ministers takes on a constitutionally protected character. See id. at 2060 (explaining that 

the First Amendment protects the autonomy of a religious organization “with respect to internal management decisions 

that are essential to the institution’s central mission”). To render a legal judgment about Demkovich’s work environment

is to render a religious judgment about how ministers interact. Cf. McCarthy v. Fuller, 714 F.3d 971, 976 (7th Cir. 2013) 

(“Religious questions are to be answered by religious bodies.”). According to the dissent, our holding condones harassment of a minister as necessary to supervise or control that 

minister. Post at 13, 19, 21. We disagree. Deciding where a 

minister’s supervisory power over another minister ends and 

where employment discrimination law begins is not a line to 

be drawn in litigation, the point of the ministerial exception.

Precluding hostile work environment claims arising from 

minister-on-minister harassment also fits within the doctrinal 

framework of the ministerial exception. A religious 

organization’s supervision of its ministers is as much a 

“component” of its autonomy as “is the selection of the 

individuals who play certain key roles.” Our Lady of 

Guadalupe, 140 S. Ct. at 2060. It would be incongruous if the 

independence of religious organizations mattered only at the 

beginning (hiring) and the end (firing) of the ministerial 

relationship, and not in between (work environment). See, e.g., 

id. (“But it is instructive to consider why a church’s 

independence on matters of faith and doctrine requires the 

authority to select, supervise, and if necessary, remove a 

minister without interference by secular authorities.” 

(emphasis added) (internal quotation marks and footnote 
16 No. 19-2142 

omitted)); Hosanna-Tabor, 565 U.S. at 194–95 (“The exception 

instead ensures that the authority to select and control who 

will minister to the faithful—a matter strictly ecclesiastical—

is the church’s alone.” (emphasis added) (internal quotation 

marks and footnote omitted)). In sum, segmenting the

ministerial relationship runs counter to the teachings of 

Hosanna-Tabor and Our Lady of Guadalupe, from which we see 

no reason to depart. 

For this same reason, we apply the ministerial exception 

in the way the Supreme Court has applied it. Just as a religious organization need not proffer a religious justification 

for termination claims, a religious organization need not do 

so for hostile work environment claims. See Hosanna-Tabor, 

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.”). The dissent contends that 

“neutral, secular principles of law” should apply here, as in 

“property, contract, tax, or tort” cases. Post at 17. But the 

Court has rejected a similar argument. In Hosanna-Tabor, the 

Court held that a “valid and neutral law of general applicability,” Employment Div., Dept. of Human Resources of Ore. v. 

Smith, 494 U.S. 872, 879 (1990) (internal quotation marks omitted), did not foreclose recognition of the ministerial exception. 

Hosanna-Tabor, 565 U.S. at 190. “Smith involved government 

regulation of only outward physical acts,” while the minister’s termination in Hosanna-Tabor “concern[ed] government 

interference with an internal church decision that affects the 

faith and mission of the church itself.” Id. The same is true for 

the ministerial work environment. Attempts to cabin 

Hosanna-Tabor and Our Lady of Guadalupe to tangible employment action claims likewise do not persuade. In those cases, 
No. 19-2142 17

the Court made no distinction, explicit or implicit, between 

tangible or intangible employment actions, so neither do we. 

B 

Adjudicating Demkovich’s hostile work environment 

claims would also lead to impermissible intrusion into, and 

excessive entanglement with, the religious sphere. To do so

would contravene the Religion Clauses in much the same way 

the termination claims did in Hosanna-Tabor and Our Lady of 

Guadalupe. By probing the ministerial work environment, the 

state—acting through a court—interferes with the Free Exercise Clause, “which protects a religious group’s right to shape 

its own faith and mission.” Hosanna-Tabor, 565 U.S. at 188. A 

religious organization shapes its faith and mission through its 

work environment just as much as “through its appointments.” Id.; see Our Lady of Guadalupe, 140 S. Ct. at 2060. Allowing the state to regulate the ministerial work environment 

similarly runs afoul of the Establishment Clause, “which 

prohibits government involvement in such ecclesiastical decisions.” Hosanna-Tabor, 565 U.S. at 189. How one minister interacts with another, and the employment environment that 

follows, is a religious, not judicial, prerogative. See Our Lady 

of Guadalupe, 140 S. Ct. at 2060–61; Hosanna-Tabor, 565 U.S. at 

189. In complement rather than conflict, the Free Exercise 

Clause and the Establishment Clause therefore preclude

Demkovich’s hostile work environment claims. 

Consider first the litany of Free Exercise Clause problems 

with hostile work environment claims by ministers. “[Q]uestions of church discipline and the composition of the church 

hierarchy are at the core of ecclesiastical concern.” 

Milivojevich, 426 U.S. at 717. So to adjudicate Demkovich’s allegations, which center on his relationship with his fellow 
18 No. 19-2142 

minister and supervisor Reverend Dada, is to necessarily intrude upon the religious realm. Even at its least invasive, a 

hostile work environment claim threatens to fundamentally 

alter the ministerial relationship and work environment. See 

Corp. of Presiding Bishop of Church of Jesus Christ of Latter-day 

Saints v. Amos, 483 U.S. 327, 336 (1987) (“Fear of potential liability might affect the way an organization carried out what it 

understood to be its religious mission.”). Because a minister 

lies at the heart of a religious organization’s work and workplace, deciding whether discrimination pervaded his employment impermissibly requires “intrusion into a religious 

thicket.” Milivojevich, 426 U.S. at 719. “The First Amendment 

outlaws such intrusion.” Our Lady of Guadalupe, 140 S. Ct. at 

2060. 

Hostile work environment claims interfere with a religious organization’s internal governance, presenting another 

Free Exercise problem. As we have said, “civil authorities 

have no say over matters of religious governance.” Korte v. 

Sebelius, 735 F.3d 654, 678 (7th Cir. 2013). This invitation to 

turn the spiritual into the secular raises the concern of chilling 

religious-based speech in the religious workplace. See Brief 

for First Amendment Professors as Amici Curiae 7–11. Turning 

to Demkovich’s allegations, what one minister says in supervision of another could constitute stern counsel to some or 

tread into bigotry to others. How is a court to determine discipline from discrimination? Or advice from animus? See 

Hosanna-Tabor, 565 U.S. at 205 (Alito, J. concurring, joined by 

Kagan, J.) (“In order to probe the real reason for respondent’s 

firing, a civil court—and perhaps a jury—would be required 

to make a judgment about church doctrine.“). These questions 

and others like them cannot be answered without infringing 

upon a religious organization’s rights. See Hernandez v. 
No. 19-2142 19

Comm’r, 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.”). Shielded by the Free Exercise clause, ministers should have an eye toward liturgy, not litigation. See 

Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 

1164, 1171 (4th Cir. 1985) (“There is the danger that churches, 

wary of EEOC or judicial review of their decisions, 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.”). 

The Establishment Clause problems with adjudicating 

Demkovich’s hostile work environment claims are just as 

plain. “Entanglement must be ‘excessive’ before it runs afoul 

of the Establishment Clause,” Agostini v. Felton, 521 U.S. 203, 

233 (1997), and so “the government action must involve ‘intrusive government participation in, supervision of, or inquiry into religious affairs.’” Vision Church v. Vill. of Long 

Grove, 468 F.3d 975, 995 (7th Cir. 2006) (quoting United States 

v. Indianapolis Baptist Temple, 224 F.3d 627, 631 (7th Cir. 2000)). 

So it is here. A hostile work environment claim based on the 

relationship between ministers “would enmesh the court in 

endless inquiries as to whether each discriminatory act was 

based in Church doctrine or simply secular animus.” AliceaHernandez v. Cath. Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 

2003). Discerning doctrine from discrimination is no task for 

a judge or jury. See Minker v. Balt. Annual Conf. of United Methodist Church, 894 F.2d 1354, 1357 (D.C. Cir. 1990) (noting, in a 

promotion claim, that “[w]e cannot imagine an area of inquiry 

less suited to a temporal court for decision; evaluation of the 
20 No. 19-2142 

‘gifts and graces’ of a minister must be left to ecclesiastical institutions”). 

And for good reason. “It is not to be supposed that the 

judges of the civil courts can be as competent in the ecclesiastical law and religious faith of all these bodies as the ablest 

men in each are in reference to their own.” Watson, 80 U.S. at 

729; see also Memorial and Remonstrance Against Religious 

Assessments, in SELECTED WRITINGS OF JAMES MADISON 21, 24 

(R. Ketcham ed. 2006) (stating the idea that a “Civil Magistrate 

is a competent Judge of Religious truth” is “an arrogant pretension” that has been “falsified”). To be sure, “[i]nteraction 

between church and state is inevitable.” Agostini, 521 U.S. at 

233. But when a court adjudicates a minister’s hostile work 

environment claim based on the protected ministerial relationship, excessive entanglement results. See Rayburn, 772 

F.2d at 1171 (explaining that “[b]ureaucratic suggestion in 

employment decisions of a pastoral character, in contravention of a church’s own perception of its needs and purposes, 

would constitute unprecedented entanglement with religious 

authority”). 

The Supreme Court has held far less than intruding upon 

a minister’s work environment to be impermissible under the 

Establishment Clause. Cf., e.g., Santa Fe Independent School 

Dist. v. Doe, 530 U.S. 290, 301–10 (2000) (holding excessive entanglement when public school permitted students to say a 

prayer before football games). A religious organization 

should not be forced to choose between proffering a religious 

justification or risking legal liability. See Hosanna-Tabor, 565 

U.S. at 194–95. “In these sensitive areas, the state may no more 

require a minimum basis in doctrinal reasoning than it may 

supervise doctrinal content.” Rayburn, 772 F.2d at 1169; see
No. 19-2142 21

also Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, 903 

F.3d 113, 121–22 (3d Cir. 2018) (noting same). Informed by the 

Establishment Clause, the ministerial exception affords religious organizations protection from that choice. See Amos, 483 

U.S. at 336 (“[I]t is a significant burden on a religious 

organization to require it, on pain of substantial liability, to 

predict which of its activities a secular court will consider religious.”). To hold otherwise “misses the point of the ministerial exception.” Hosanna-Tabor, 565 U.S. at 194.

Under either Religion Clause, procedural and practical 

problems abound when probing a minister’s work environment. True, religious organizations do not “enjoy a general 

immunity from secular laws.” Our Lady of Guadalupe, 140 S. 

Ct. at 2060. The Supreme Court has noted that “[t]he Establishment Clause does not exempt religious organizations 

from such secular governmental activity as fire inspections 

and building and zoning regulations.” Tony & Susan Alamo 

Found. v. Sec'y of Lab., 471 U.S. 290, 305 (1985). For example, 

religious organizations are not exempt from compliance with 

the Fair Labor Standards Act. Id. at 306. And as far as we can 

tell, no court has held that the ministerial exception protects 

against criminal or personal tort liability. Nor do we. If a 

minister’s allegations rise to those levels, they may be independently actionable, as the protection of the ministerial 

exception inures to the religious organizations, not to the individuals within them. 

But like the Fourth Circuit, we worry about a “protracted 

legal process pitting church and state as adversaries.” Rayburn, 772 F.2d at 1171. This case’s history shows the prejudicial effects of incremental litigation: two motions to dismiss, 

two subsequent decisions and orders, the beginnings of 
22 No. 19-2142 

discovery, an interlocutory appeal, a panel opinion, and now

en banc rehearing. To defend against Demkovich’s claims 

without the ministerial exception, the church would likely 

have to rely on the affirmative defense described in Burlington 

Industries, Inc. v. Ellerth, which “comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, 

and (b) that the plaintiff employee unreasonably failed to take 

advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” 524 U.S. 

742, 765 (1998) (establishing the standard as proof by a preponderance of the evidence). Meeting this burden makes legally relevant “every step” that the church took (or failed to 

take) in internally responding to the alleged behavior of 

Reverend Dada, from the informal procedures of a church 

handbook to the ancient traditions of a canon tribunal. Elvig 

v. Calvin Presbyterian Church, 375 F.3d 951, 973 (9th Cir. 2004) 

(Trott, J., dissenting). These “rules, policies, and decisions 

which are unmistakably of ecclesiastical cognizance” are “not 

the federal courts’ concern.” Natal v. Christian & Missionary 

All., 878 F.2d 1575, 1577 (1st Cir. 1989). 

The ministerial exception’s status as an affirmative 

defense makes some threshold inquiry necessary. See 

Hosanna-Tabor, 565 U.S. at 195 n.4. At the same time, discovery 

to determine who is a minister differs materially from 

discovery to determine how that minister was treated, 

especially because admissible evidence is only a subset of 

discoverable information. See FED. R. CIV. P. 26(b)(1). Even 

more onerous would be the depositions of fellow ministers

and the search for a subjective motive behind the alleged 

hostility. It is this subjectivity that differentiates hostile work 

environment claims from tort claims, which seldom probe for 
No. 19-2142 23

discriminatory animus. Tort liability—unlike liability for 

employment discrimination claims—generally does not arise 

as a direct result of the protected ministerial relationship. And 

nothing indicates that the offensive and derogatory 

comments here bring about any claim other than for 

employment discrimination. Analogies to tort law fail to 

recognize that a hostile work environment claim brings the

entire ministerial relationship under invasive examination. 

See Brief for The Ethics and Religious Liberty Commission of 

the Southern Baptist Convention, et al., as Amici Curiae 7–8. 

Taken together, these concerns are at least in part why we 

must “stay out of employment disputes involving those 

holding certain important positions with churches and other 

religious institutions.” Our Lady of Guadalupe, 140 S. Ct. at 

2060. 

Like the Religion Clauses, employment discrimination 

statutes serve “undoubtedly important” societal interests. 

Hosanna-Tabor, 565 U.S. at 196. Yet “the very process of inquiry” in weighing these competing interests “may impinge 

on rights guaranteed by the Religion Clauses.” NLRB v. Cath. 

Bishop of Chicago, 440 U.S. 490, 502 (1979). When these interests 

conflict, as here, the ministerial exception must prevail. See, 

e.g., Young v. Northern Ill. Conf. of United Methodist Church, 21 

F.3d 184, 185 (7th Cir. 1994) (“In other words, in a direct clash 

of ‘highest order’ interests, the interest in protecting the free 

exercise of religion embodied in the First Amendment to the 

Constitution prevails over the interest in ending discrimination embodied in Title VII.”). The dissent asserts that a 

balancing approach is best. Post at 14–19. But as the Court declared in Hosanna-Tabor, “the First Amendment has struck the 

balance for us.” 565 U.S. at 196. 
24 No. 19-2142 

C 

Demkovich’s case is not our first engagement with matters 

of ministerial employment. This court has consistently recognized the importance of the ministerial exception and the protection it offers. In Young, we applied the ministerial exception

to a Title VII claim for denial of a promotion by a probationary 

minister. 21 F.3d at 187–88 (characterizing as “fruitless” the 

plaintiff’s argument “that Title VII may be applied to decisions by churches affecting the employment of their clergy”). 

In Tomic v. Catholic Diocese of Peoria, we did the same for an 

ADEA termination suit by a music director and organist. 442 

F.3d 1036, 1040–43 (7th Cir. 2006) (stating that “[a religious 

employer] would not be constrained in its dealings with [its 

ministers] by employment laws that would interfere with the 

church’s internal management, including antidiscrimination 

laws” (collecting cases)), abrogated in part on other grounds by

Hosanna-Tabor, 565 U.S. at 195 n.4. And in Alicea-Hernandez, 

we dismissed under the ministerial exception a communications manager’s suit alleging, among other claims, Title VII 

retaliation. 720 F.3d at 700, 703–04 (“The ‘ministerial exception’ applies without regard to the type of claims being 

brought.”). Notably, each of these applications of the ministerial exception came before the Supreme Court’s holding in

Hosanna-Tabor. 

We continued to confirm the ministerial exception’s 

strength after its unanimous endorsement in that case. In 

Grussgott v. Milwaukee Jewish Day School, Inc., we applied the 

ministerial exception to an ADA termination claim by a 

teacher at Jewish day school. 882 F.3d 655, 657, 662 (7th Cir. 

2018) (per curiam) (describing Hosanna-Tabor as “the Supreme 

Court adopt[ing] the ‘ministerial exception’ to employment 
No. 19-2142 25

discrimination laws that the lower federal courts had been applying for years”). In Sterlinski v. Catholic Bishop of Chicago, we 

held the ministerial exception barred a Title VII claim for demotion and termination by another organist and music director. 934 F.3d 568, 569, 572 (7th Cir.) (noting that Hosanna-Tabor

“holds that Title VII of the Civil Rights Act of 1964 does not 

apply to ministers”), as amended on denial of reh’g and reh’g en 

banc (Oct. 31, 2019). Although Demkovich’s appeal is our first 

encounter with the ministerial exception since Our Lady of 

Guadalupe, this decision is the next station on this journey. 

On a final note, we acknowledge the split in the circuits on 

whether the ministerial exception covers hostile work environment claims. The Tenth Circuit holds that it does. 

Skrzypczak v. Roman Cath. Diocese of Tulsa, 611 F.3d 1238, 1243–

46 (10th Cir. 2010). The Ninth Circuit holds that it does not, at 

least as a categorical matter. Compare Elvig, 375 F.3d at 969, 

and Bollard v. Cal. Province of the Soc’y of Jesus, 196 F.3d 940, 

945–50 (9th Cir. 1999), with Werft v. Desert Sw. Annual Conf. of 

United Methodist Church, 377 F.3d 1099, 1101–04 (9th Cir. 2004) 

(per curiam).5 The church contends that the Eleventh and

Fifth Circuits have also weighed in on this issue. But we are 

not sure the cases cited cleanly presented hostile work environment claims. See Gellington v. Christian Methodist Episcopal

Church, 203 F.3d 1299, 1300–01 (11th Cir. 2000); Combs v. Cent. 

Tex. Annual Conf. of United Methodist Church, 173 F.3d 343, 

350–51 (5th Cir. 1999). Regardless of the depth of the split, 

courts on either side recognized this court’s position before 

Demkovich’s suit. See Skrzypczak, 611 F.3d at 1245 (“[W]e 

5 The dissent places great emphasis on the Ninth Circuit’s reasoning 

in Elvig and Bollard. We note that these cases predate the Supreme Court’s 

decisions in Our Lady of Guadalupe and Hosanna-Tabor. 
26 No. 19-2142 

choose to follow the Seventh Circuit’s decision in AliceaHernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 

2003), which, in our opinion, is the better-reasoned approach.”); Elvig, 375 F.3d at 960 n.4 (“The Seventh Circuit 

would perhaps sweep up Elvig’s claim within its blanket 

statement that the ‘ministerial exception’ applies without regard to the type of claims being brought. Alicea-Hernandez, 

320 F.3d at 703.” (alteration, internal quotation marks, and 

parenthetical omitted)). In this decision, we remove any 

doubt as to where we stand. 

IV

The First Amendment ministerial exception protects a religious organization’s employment relationship with its ministers, from hiring to firing and the supervising in between. 

Adjudicating a minister’s hostile work environment claims 

based on interaction between ministers would undermine this

constitutionally protected relationship. It would also result in 

civil intrusion upon, and excessive entanglement with, the religious realm, departing from the teachings of Hosanna-Tabor

and Our Lady of Guadalupe. Therefore, the ministerial exception precludes Demkovich’s hostile work environment claims

against the church. 

We REVERSE the district court’s decision denying dismissal 

of Demkovich’s disability-based hostile work environment 

claim, and we AFFIRM on different grounds its dismissal of his

sex, sexual orientation, and marital status claims. The case is 

REMANDED with instructions to DISMISS the state and federal 

claims. 
No. 19-2142 27 

HAMILTON, Circuit Judge, joined by ROVNER and WOOD,

Circuit Judges, dissenting. The majority opinion decides a hard 

question but makes it look easy. The majority holds that the 

“ministerial exception” recognized in First Amendment doctrine bars any hostile environment employment claims by 

“ministerial employees.” The majority tells us that the risks of 

unconstitutional intrusion and entanglement between civil 

courts and faith communities are just too great to allow any 

such lawsuit. This bar will apply regardless of how severe, 

pervasive, or hostile the work environment is, regardless of 

whether the hostility is motivated by race, sex, national origin, 

disability, or age, and regardless of whether the hostility is 

tied to religious faith and practice. I respectfully dissent.

The majority opinion makes the case look easy by scarcely 

acknowledging or engaging with the arguments on the other 

side. It also disregards the limits the Supreme Court imposed 

on its decision in Hosanna-Tabor Evangelical Lutheran Church & 

School v. E.E.O.C., 565 U.S. 171 (2012), where the Court made 

clear it was deciding only that the ministerial exception applies to terminations of ministers. By focusing too much on 

religious liberty and too little on counterarguments and other 

interests, the majority opinion takes our circuit’s law beyond 

necessary protection of religious liberty. It instead creates for 

religious institutions a constitutional shelter from generally 

applicable laws, at the expense of the rights of employees. 

We should instead stick with the panel’s more cautious approach to this relatively new and rare question. We should 

weigh competing interests case-by-case to protect both religious liberty and laws against employment discrimination.

To show why the hostile environment question is harder 

than the majority makes it appear and why the majority’s 
28 No. 19-2142 

sweeping holding is not justified, this opinion proceeds as follows. First, the Supreme Court has not decided the question 

we face. Second, the circuits and state courts are already divided on the question. Third, turning to the substance of the 

question, given other similar claims that civil courts may hear,

the majority’s holding draws an oddly arbitrary line as a matter of constitutional law, barring only hostile environment 

claims. Fourth, the Ninth Circuit’s and our panel’s line between tangible employment actions and hostile environment 

claims is the line most congruent with the purposes of the 

ministerial exception. It allows churches ample power to select, control, and supervise their ministers while protecting 

employees from abuses that are not properly within the scope 

of anyone’s employment. Next, the Ninth Circuit’s and 

panel’s allowance of hostile environment claims, subject to a

narrower, case-by-case balancing approach toward First 

Amendment issues, is more in harmony with the broader 

sweep of First Amendment precedents—protecting religious 

liberty while not granting special privileges to churches at the 

expense of their employees except where necessary. Finally, it 

is necessary to highlight the breadth of the majority’s holding 

and the consequences it may have. 

1. The Supreme Court has not decided this question. By 

taking broad quotations out of context, the majority opinion 

gives the impression that the Supreme Court has already decided the question in this case in Hosanna-Tabor and Our Lady 

of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020). It 

has not, and it has taken pains to say it has not. 

In Hosanna-Tabor, the Supreme Court first recognized the 

ministerial exception that every circuit had recognized. The 

plaintiff in that case was a ministerial employee (a “called” 
No. 19-2142 29

teacher in a religious school) who had been fired to retaliate 

against her for trying to assert her rights under the Americans 

with Disabilities Act. The Supreme Court affirmed summary 

judgment for the employer.

Hosanna-Tabor said that 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. 

The majority errs by disregarding the limits the Supreme 

Court put on its decision. The Court was working against the 

backdrop of more than a century of precedents of church encounters with civil authority. The Court was therefore cautious in Hosanna-Tabor, saying that it was not deciding the 

question we face here, which is whether the ministerial exception applies to suits that do not result from the firing of a ministerial employee: 

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today 

we hold only that the ministerial exception bars 

such a suit. We express no view on whether the exception bars other types of suits, including actions by 

employees alleging breach of contract or tortious conduct by their religious employers. 
30 No. 19-2142 

565 U.S. at 196 (emphasis added). Because Demkovich’s 

amended complaint addresses only his treatment by his supervisor while he was employed and does not challenge his 

firing or any other tangible employment action, it falls

squarely into the area that Hosanna-Tabor expressly declined 

to reach.

The majority here also quotes references in Our Lady of 

Guadalupe to a church’s “employment relationship” with its 

ministers. From these unqualified references, the majority 

seems to infer that Our Lady of Guadalupe drove past the

guardrail in Hosanna-Tabor without actually saying so. That’s 

a misreading of the opinion. Hosanna-Tabor recognized the 

ministerial exception for the first time in Supreme Court jurisprudence, but with the limits just noted. Our Lady of Guadalupe

decided an apparent circuit split on how courts should decide 

who counts as a ministerial employee. The plaintiffs in the 

Our Lady of Guadalupe cases were teachers who had been fired 

from jobs with religious schools. 

The question the Court actually decided was that both 

teachers counted as ministerial employees so that they could 

not challenge their firings under employment discrimination 

laws. 140 S. Ct. at 2055. The question we face here, whether 

the ministerial exception should extend to hostile environment claims, was neither presented nor decided. Also, we already know that the First Amendment does not bar civil 

courts from all aspects of a minister’s employment relationship. It has long been clear that civil courts may award damages for breaches of employment contracts. Jones v. Wolf, 443 

U.S. 595, 606 (1979) (neutral principles may be applied to the 
No. 19-2142 31

“manner in which churches own property, hire employees, or 

purchase goods”).1

2. Circuits and state courts are split on the question before us. The circuit split is a sign that the question before us is 

not as easy as the majority presents it. In applying the ministerial exception, the Ninth Circuit has drawn a line between 

tangible employment actions and hostile environment claims. 

In Bollard v. California Province of the Society of Jesus, 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 thenemerging ministerial exception. Id. at 944.

The Ninth Circuit reversed, emphasizing that the case did 

not present any challenge to “the Jesuit order’s choice of representative, a decision to which we would simply defer without further inquiry.” Id. at 947. The Jesuits also did not defend 

the alleged harassment as motivated by religious faith; the 

Jesuits condemned it. 

1 Ministers’ claims for breach of contract can present serious First 

Amendment issues, but they are not barred categorically from civil courts. 

They call for case-by-case consideration of whether the claim may be decided without intruding into doctrinal or ecclesiastical territory. For illustrations of this approach, see, e.g., Petruska v. Gannon Univ., 462 F.3d 294, 

310–12 (3d Cir. 2006), and Minker v. Baltimore Annual Conf. of United Methodist Church, 894 F.2d 1354, 1359–61 (D.C. Cir. 1990). For treatments after 

Hosanna-Tabor, see, e.g., Gregorio v. Hoover, 238 F. Supp. 3d 37, 48–49 

(D.D.C. 2017); Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 615–

21 (Ky. 2014); Sumner v. Simpson Univ., 238 Cal. Rptr. 3d 207, 217–22 (Cal. 

App. 2018).
32 No. 19-2142 

The Ninth Circuit found that the Free Exercise Clause did 

not require the courts to deny relief on the hostile environment claim: 

The Free Exercise Clause rationale for 

protecting a church’s personnel decisions 

concerning its ministers is the necessity of 

allowing the church to choose its 

representatives using whatever criteria it deems 

relevant. That rationale does not apply here, for 

the Jesuits most certainly 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 behavior. 

196 F.3d at 947–48. A “generalized and diffuse concern” about 

church autonomy, the court added, 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 “reasonableness” of Jesuit practices. Id. at 950. Finding there would be no 

greater entanglement than in other private civil suits against 

a church, the Ninth Circuit found no constitutional barrier to 

the sexual harassment claim that did not challenge any tangible employment action.
No. 19-2142 33

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 the panel drew here. The plaintiff was an ordained minister. She alleged that a senior minister sexually harassed her and, after she protested, retaliated 

against her. The district court dismissed. Following Bollard, 

the Ninth Circuit reversed in part. The plaintiff could not challenge any tangible employment decisions but could pursue 

her hostile environment claims, including damages for emotional distress and reputational harm. Id. at 953.2

The Tenth Circuit took a different approach, expressly disagreeing with Bollard and Elvig 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 employment actions and a sexually hostile environment. The Tenth Circuit affirmed dismissal of all claims, reasoning as the majority does here that even 

the hostile environment claim would pose too great a threat 

of entanglement with religious matters. Id. at 1245. 

3. The majority’s rule draws an odd, arbitrary line in

constitutional law. The central thrust of the majority opinion 

2 For other cases allowing ministerial employees to pursue hostile environment claims, see Dolquist v. Heartland Presbytery, 342 F. Supp. 2d 996, 

1007 (D. Kan. 2004); Prince of Peace Lutheran Church v. Linklater, 421 Md. 

664, 689, 28 A.3d 1171, 1185 (2011); McKelvey v. Pierce, 173 N.J. 26, 55, 800 

A.2d 840, 858 (2002); Van Osdol v. Vogt, 908 P.2d 1122, 1130 (Colo. 1996); 

Black v. Snyder, 471 N.W.2d 715, 720–21 (Minn. App. 1991). As for our decision in Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th 

Cir. 2003), which some have mistakenly read as rejecting all hostile environment claims by ministerial employees, see the panel’s analysis of the 

case. Demkovich v. St. Andrew the Apostle Parish, Calumet City, 973 F.3d 718, 

724–26 (7th Cir. 2020).
34 No. 19-2142 

is that religious liberty will be undermined if churches are accountable in civil courts for what would otherwise be illegal 

discrimination against ministerial employees subjected to

hostile work environments based on race, sex, disability, or 

national origin. To be clear, I agree that such cases raise serious concerns about protecting religious liberty, but defendants’ cries of doom call for a little more skepticism. Churches 

and their leaders are already accountable in civil courts for 

many similar sorts of claims. Courts already navigate these 

waters with more attention to nuance and less reliance on absolute immunities. Religious liberty still thrives.

First, defendants and all members of this court agree that 

employment discrimination laws may be enforced against 

churches on behalf of non-ministerial employees. Those employees may assert rights against churches for discrimination 

in hiring, firing, compensation, and every other aspect of the 

employment relationship, including hostile environment 

claims.

Second, defendants and all members of this court agree 

that even ministerial employees may assert tort claims against 

supervising ministers and churches as institutions. On-thejob conduct that supports statutory claims for hostile environment discrimination may also amount to torts, including assault and battery (when abuse is physical) and intentional infliction of emotional distress.

Third, defendants and all members of this court agree that 

supervising ministers may be subject to criminal law for 

crimes committed against church employees, including ministerial employees. 
No. 19-2142 35

Fourth, defendants and all members of this court agree 

that churches and their ministers are subject to civil law—

including tort and criminal law—for wrongs committed 

against parishioners and others. For example, cases of 

ministers sexually abusing parishioners, especially children, 

have become too familiar.

In each of these types of cases, there is some risk of burdening religious liberty and entangling civil and religious affairs. But the First Amendment does not categorically defeat 

any of them. Consider, for example, parish priests who sexually abused children and were transferred to other parishes. 

Investigations into tort and criminal liability of supervisors 

and churches as institutions cannot avoid looking into a 

church’s supervision and control of a ministerial employee. 

Delicate legal questions may arise, but such investigations, 

civil suits, and even prosecutions may proceed. No one here

suggests that the First Amendment flatly prohibits the inquiries. Instead, if a special difficulty arises under the First 

Amendment, courts will deal with it. 

In this case, however, the majority adopts a broad exception for any hostile environment claims by ministerial employees. That produces an oddly arbitrary line. I see no good 

reason why the careful, case-by-case approach to First 

Amendment issues is appropriate in these other categories of 

cases but is intolerable in this one.3

3 The majority shrugs off the comparison to tort law with a surprising

and unsupported assertion, that tort claims are not subjective and “seldom 

probe for discriminatory animus.” Ante at 22. State of mind is at the heart 

of tort law. Consider the great divide between intentional torts and 

negligent torts. See Prosser & Keeton, The Law of Torts § 8 (5th ed. 1984) 

(citing “intent” as “the key distinction between two major divisions of 
36 No. 19-2142 

4. The line between tangible employment actions and 

hostile environments fits the purposes of the ministerial exception. Defendants say this category of cases is special because of the central role of ministers and churches’ need to be 

able to select and supervise them. That need lies at the heart 

of the ministerial exception, as the Supreme Court explained 

in Hosanna-Tabor and repeated in Our Lady of Guadalupe. See, 

e.g., 565 U.S. at 195; 140 S. Ct. at 2060. But the defendants’ answer is too glib.

The First Amendment question has never been what sorts 

of legal immunities might help churches. As Bollard teaches, 

the question is whether this particular legal immunity “is necessary to comply with the First Amendment.” 196 F.3d at 947. 

After all, we are talking here about imposing constitutional 

restrictions on Congressional power to protect employees 

from invidious discrimination based on race, sex, disability, 

or national origin. The government’s interest in preventing 

such discrimination has long been recognized as “compelling” for purposes of constitutional analysis, e.g., New York 

legal liability—negligence and intentional torts”). Even with nonintentional torts, state of mind is often critical in deciding about punitive 

damages or whether conduct has been reckless, wanton, or willful, for 

example. See Restatement (Third) of Torts: Liability for Physical and 

Emotional Harm § 2, cmts. a & b (2010) (summarizing differences among 

and significance of these states of mind); Prosser & Keeton, § 2 (“Where 

the defendant’s wrongdoing has been intentional and deliberate, and has 

the character of outrage frequently associated with crime,” courts permit 

the award of punitive damages).

The majority also declares that tort liability generally does not arise as 

a direct result of the protected ministerial relationship. Ante at 22. With 

respect, I am skeptical, given the role that a priest’s or other pastor’s power 

may play in, for example, sexual abuse of parishioners or subordinate 

ministers, or in inflicting emotional distress on a subordinate.
No. 19-2142 37

State Club Ass’n v. City of New York, 487 U.S. 1, 14 n.5 (1988), 

and one that Congress considered a policy “of the highest priority.” Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 

& n.3 (1968), citing committee reports on what became the 

Civil Rights Act of 1964. 

To answer whether this additional immunity from hostile 

environment claims is necessary, we should start with powers 

that are undisputed: the powers churches already have to 

select and control their ministers, free of constraints from 

employment discrimination and other laws. Hiring, firing, 

promoting, retiring, transferring—these are decisions that 

employers, including religious organizations, make to select 

those who carry out their work. The latent power to take such 

actions offers other tools for control. Further control is 

available through many other tangible employment actions, 

including decisions about compensation, benefits, working 

conditions, resources available to do the job, training, support 

from other staff and volunteers, and so on.

Employment discrimination law is built on the recognition 

that employers have these powers to control their employees. As 

the Supreme Court explained in Ellerth: “Tangible employment 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.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 762 (1998). Control is the 

very point of those powers. As Ellerth explained, that’s why 

employers are held accountable for these tangible decisions 

when managers make them with an unlawful purpose. Id.

Hostile environment claims, while they may arise under 

the same statutes, involve quite different elements and special 
38 No. 19-2142 

rules for employer liability. The differences show that religious employers do not need exemption from such claims to 

be able to select, supervise, or control their ministers.

Hostile environment claims, which are essentially tortious 

in nature, are by definition based on actions that are not necessary for effective supervision of employees. See Ellerth, 524 

U.S. at 756–57; Faragher v. City of Boca Raton, 524 U.S. 775, 793–

94 (1998). In general, “sexual harassment by a supervisor is 

not conduct within the scope of employment,” so the employer cannot 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 supervisor’s employment. 

Defendants here argue in effect that their power as employers to take tangible employment actions against ministerial employees does not give them enough power to select, supervise, and control those employees. But the Supreme 

Court’s leading case on the subject teaches that a hostile work 

environment, by definition, simply is not a permissible means 

of exerting (constitutionally protected) “control” over employees and accomplishing the mission of the business or religious organization. Harris v. Forklift Systems, Inc., 510 U.S. 17, 

23 (1993). The conduct plaintiff alleges here is classic tortious 

harassment under Harris, Ellerth, Faragher, Meritor Savings 

Bank FSB v. Vinson, 477 U.S. 57, 65−66 (1986), and countless 
No. 19-2142 39

other cases in the lower courts: his supervisor allegedly subjected him to a campaign of verbal abuse based on his sex, 

sexual orientation, and disabilities, ultimately interfering 

with his job performance and mental and physical health. Or 

so we must assume here on the pleadings.4

An employer’s need and right to control employees 

should not embrace harassing behavior that the Supreme 

Court has defined in numerous cases as conduct that “unreasonably interferes with an employee’s work performance.” 

Harris, 510 U.S. at 23. The notion that such harassment is

somehow necessary to control or supervise an employee is, 

under employment discrimination law, an oxymoron. 

The majority tells us, however, that hostile environment 

claims by ministerial employees threaten religious liberty because they will cast a shadow over a supervisory minister’s 

“counseling” of a wayward subordinate. With respect, neither 

defendants nor the majority have identified any cases actually 

challenging counseling or good-faith supervision in the decades that such cases might have been brought. The suggestion 

that federal courts cannot tell the difference between pastoral 

counseling, even with “tough love” or “stern counseling” as 

the majority puts it, and torrents of the most vile and abusive 

epithets aimed at race, sex, sexual orientation, and disability 

does not give sufficient credit to the federal courts. Courts 

have been protecting religious liberty for generations by policing lines far more subtle than the one that worries defendants and the majority in this case.

4 As this appeal comes to us, we must also assume that plaintiff would 

be able to show a basis for employer liability, as the panel opinion noted. 

Demkovich, 973 F.3d at 723.
40 No. 19-2142 

5. The majority departs from a long practice of carefully 

balancing civil law and religious liberty. Application of employment discrimination laws, including in hostile environment claims, poses some risk of “entanglement” between civil 

power and churches. See Bollard, 196 F.3d at 948–49; Elvig, 375 

F.3d at 956–57. But that recognition should be only the beginning of the analysis, not the end. 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.”). Where faith 

communities encounter civil law, American courts have a 

long history of balancing the powerful interests on both sides 

to protect religious freedom while enforcing other important 

legal rights. The problem here is particularly sensitive, involving tension between the freedom of religion and employees’ 

rights to be free from invidious discrimination. 

The cases speak of both procedural and substantive entanglement. Defendants argue that both are inevitable here. Yet 

courts have relatively little experience with hostile environment claims by ministerial employees against religious employers. Perhaps defendants’ predictions of intolerable abuses 

and intrusions may come true. Yet in more than twenty years, 

they have not in the Ninth Circuit. Until shown otherwise, I 

believe courts can manage a balance that respects the rights of 

both churches and their employees. 

Procedural entanglement may result from “a protracted 

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 

“continued court surveillance of the church’s policies and 
No. 19-2142 41

decisions” even after final judgment. Rayburn v. General 

Conference of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th 

Cir. 1985). Substantive entanglement occurs “where the 

Government is placed in a position of choosing among 

competing religious visions.” E.E.O.C. v. Catholic University of 

America, 83 F.3d 455, 465 (D.C. Cir. 1996) (quotation marks 

omitted). 

The potential for procedural entanglement does not justify 

a categorical rule against all hostile environment claims by 

ministerial employees. Religious employers have long been 

subject to employment discrimination suits by their nonministerial employees. The processes of civil litigation can be 

intrusive, of course; no employer welcomes them. But civil 

litigation of such claims against religious employers has not 

been deemed a sufficient basis to require dismissal. Tort, 

contract, and property cases are not barred categorically.

Procedural entanglement is not necessarily any more a 

concern with hostile environment claims by ministerial 

employees than with claims by non-ministerial employees. 

These cases are no more suitable for a one-size-fits-all 

prohibition. 

On the subject of procedural entanglement, Ohio Civil 

Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619 

(1986), weighs against the majority’s broad rule. A state civil 

rights commission started to investigate allegations that a religious school discriminated against a teacher because of her 

sex. As in the later Hosanna-Tabor case, the teacher had agreed 

in her contract to resolve disputes within the church itself. The 

school ultimately fired her for complaining to the state government to start a civil investigation, contrary to this commitment. Id. at 623. 
42 No. 19-2142 

The school sought a federal injunction against the state investigation based on what we would now call entanglement, 

arguing “that any investigation of [the school’s] hiring process or any imposition of sanctions for [its] nonrenewal or termination 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 abstained from exercising jurisdiction under Younger v. Harris, 

401 U.S. 37 (1971), and its progeny. 477 U.S. at 625. 

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 abstention 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. Dayton Christian 

Schools signals that an investigation of such an allegation of 

discrimination does not threaten unconstitutional entanglement to the extent that the investigation must be shut down 

before it begins.

That result is consistent with the broader landscape of 

litigation in civil courts involving churches. The Catholic 

Church has itself faced extensive litigation over torts 

committed by clergy in recent years. That litigation has 

inquired—sometimes deeply—into the relationships between 

clergy and parishioners and into the Church’s supervision 

and disciplinary practices in dealing with priests suspected of 

having sexually abused children. The First Amendment does 

not bar such claims or the necessary investigations. 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–
No. 19-2142 43

57 & n.2 (Fla. 2002) (collecting cases); see also Elvig, 375 F.3d 

at 959 (allowing minister’s hostile work environment claim

based on sexual harassment to go forward where allegations 

would require only “a purely secular inquiry” and would not 

require court to pass on issues of religious doctrine).

Accordingly, the potential for procedural entanglement 

should not bar plaintiff’s claims here entirely. Courts can and 

should deal with procedural entanglement problems as they 

arise, not close the courthouse to the entire category of cases. 

The more difficult problems arise here in terms of potential substantive entanglement. Again, though, we need to 

keep in mind that some entanglement is “inevitable” and that 

only “excessive” entanglement violates the First Amendment. 

Agostini, 521 U.S. at 233. Courts have managed potential entanglement problems in church litigation across a range of 

subjects, from contracts and property disputes to employment disputes, torts, and church elections and schisms.

The general parameters are familiar. Civil courts must not 

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 arguments. At the 

same time, civil courts sometimes must decide questions of 

property, contract, tax, or tort law in cases involving 

churches. They may do so if they avoid issues of faith and 

stick to applying neutral, secular principles of law.

In some cases, that approach has led civil courts to leave 

churches alone. E.g., N.L.R.B. v. Catholic Bishop of Chicago, 440 

U.S. 490, 503 (1979) (interpreting statute to deny NLRB jurisdiction over lay teachers in church schools); Serbian Eastern 

Orthodox Diocese for the U.S.A. v. Milivojevich, 426 U.S. 696, 
44 No. 19-2142 

708–09 (1976) (reversing state court decision that set aside decisions of “mother church” defrocking bishop, dividing diocese, and amending diocese constitutions); Presbyterian 

Church in the U.S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969) (reversing 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 transferring administrative control of church from Russian hierarchy to leader of 

United States branch). These are the cases that drive the majority’s conclusions here.

In other cases, however, civil law may be applied to 

churches without intolerable burdens on religious liberty. 

E.g., Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 695–

700 (1989) (affirming denial of charitable deductions for 

“gifts” to church where quid pro quo exchange for services 

was clear); Tony and Susan Alamo Foundation v. Sec’y of Labor, 

471 U.S. 290, 305 (1985) (permitting 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); Wolf, 443 U.S. at 602–04 (resolving property dispute between rival factions of local 

church based on neutral principles). In all of these cases there 

was some risk or degree of entanglement, but the Supreme 

Court deemed it tolerable. If we consider the full sweep of the 

case law, rather than just one side of it, we see a need for balance and nuance, not new absolute rules in constitutional law.
No. 19-2142 45

In this case, 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 or fire him. But plaintiff’s hostile work environment 

claims allege conduct that constituted abuse under neutral, 

generally applicable standards that would be enforceable on 

behalf of a non-ministerial employee. That conduct is, by definition, not necessary to control or supervise any employee. 

As in cases applying secular legal rules to torts, contracts, or 

property disputes, I would hold that courts may apply secular 

hostile-environment law to actions taken toward all employees, including ministers, absent a showing that the circumstances of the particular case will require excessive entanglement between civil and religious realms. 

6. Consequences and Stakes. Finally, it is important to 

look past the abstractions about religious liberty and past the 

factual details of this case. We should consider the full range 

of facts that might prompt ministerial employees to bring hostile environment claims that the majority now bars. 

We know that people who exercise authority within 

churches can be all too human. Casebooks and news reports 

tell us of cases of sexual harassment by ministers, sometimes 

directed at parishioners, sometimes at non-ministerial employees, and sometimes at other (typically less senior) ministers. Elvig is just one example. 375 F.3d at 953–54. See also the 

cases cited in footnote 2, above.

As noted in the panel majority, 973 F.3d at 730–31, within 

this circuit alone, hostile environment claims have been 
46 No. 19-2142 

brought against other types of employers on the basis of 

highly disturbing facts. E.g., Gates v. Board of Education, 916 

F.3d 631, 637–39 (7th Cir. 2019) (plaintiff 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); Smith v. Rosebud Farm, Inc., 898 F.3d 747, 

749–50 (7th Cir. 2018) (plaintiff subjected to four years of 

groping, mimed sex acts, and racial slurs; threatened with 

meat cleavers and had tires slashed after reporting workplace 

abuse to supervisor); Porter v. Erie Foods Int’l, Inc., 576 F.3d 

629, 635 (7th Cir. 2009) (Black employee repeatedly had noose 

left at his work station and suffered violent intimidation in the 

workplace); Cerros v. Steel Technologies, Inc., 288 F.3d 1040, 

1042–43 (7th Cir. 2002) (Latino plaintiff subjected to horrific 

racial harassment stemming from supervisors’ explicit embrace of philosophy that “if it ain’t white it ain’t right”);

Brooms v. Regal Tube Co., 881 F.2d 412, 417 (7th Cir. 1989) (supervisor repeatedly showed racist pornography to employee, 

threatened to force her to engage in bestiality, and threatened 

to kill her); Henderson v. Irving Materials, Inc., 329 F. Supp. 2d 

1002, 1009–10 (S.D. Ind. 2004) (Black plaintiff terrorized by coworkers with tacit approval by supervisors). 

In briefs and oral argument, defendants have acknowledged that a religious employer could be held civilly liable for 

a supervisor’s criminal or tortious conduct toward a ministerial employee, or for the pattern of racial abuse and harassment described in Porter. Such cases would not violate the supervisor’s or the employer’s First Amendment rights. 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 
No. 19-2142 47

First Amendment, whether or not the supervisor claims a religious motive. See, e.g., Elvig, 375 F.3d 951; Bollard, 196 F.3d 

940. 

Given that the ministerial exception is driven by constitutional necessity, see Hosanna-Tabor, 565 U.S. at 188; Bollard, 196 

F.3d at 947, it is difficult for me to conclude that the First 

Amendment requires immunity where supervisors and coworkers of ministerial employees, for example, leave nooses 

at the desk of a Black minister while repeatedly subjecting 

him to verbal abuse with racial epithets and symbols, or subject one teacher to pervasive and unwelcome sexual attention, 

or subject another to intimidating harassment based on national origin. Such harassment simply is not necessary to 

“control” ministerial (or any other) employees. We may all

hope that such extreme allegations against religious organizations would be very rare. Yet the majority’s holding today 

will put even this sort of extreme conduct beyond the reach of 

employment discrimination statutes. 

From a practical standpoint, the majority’s decision also 

raises the stakes for future decisions about who should be 

deemed a “ministerial” employee. Here we deal with alleged 

abuse of a music minister by a parish priest of the Catholic 

Church, two men surely at the core of the ministerial exception. Yet many employers with religious affiliations, such as 

hospitals and schools, are trying to expand the reach of the 

ministerial exception to cover a much broader range of their

employees, such as teachers, nurses, and other health-care 

workers. Hosanna-Tabor and Our Lady of Guadalupe both involved schools and teachers, of course.

Lawyers for such employers have been offering public 

advice about how to try to expand the reach of the ministerial 
48 No. 19-2142 

exception as far as possible. One group advises, for example: 

“by distributing religious duties to as many staff members as 

is reasonably appropriate, a religious organization can increase 

the perception that employees who have those duties are ministers. 

Assigning employees responsibilities in prayer and 

devotions, including leading staff devotional studies, or 

responsibilities to provide congregational/member care, 

move those employees toward the ‘minister’ end of the 

spectrum.” Donn C. Meindertsma, Employment Law for 

Ministries, Conner Winters (Mar. 2019),

https://www.cwlaw.com/newsletters-40 (last visited July 8, 

2021) (emphasis added). Another group advises that all 

employee agreements and handbooks state that the 

“organization’s core mission includes the promotion, 

development, or education of religion,” and that “Employees 

of the organization have a vital duty to aid in the promotion 

and development of the organization’s core mission.” Gordon 

Behr, Hiring and Firing in Religious Organizations: The 

Ministerial Exception, MauckBaker (Sept. 8, 2020),

https://www.mauckbaker.com/post/hiring-and-firing-inreligious-organizations-the-ministerial-exception (last visited

July 8, 2021). 

Consistent with these efforts, in other cases religious employers have invoked the ministerial exception more broadly 

than seems reasonable. The following cases rejected such efforts, but the efforts show the hydraulic pressure being applied. E.E.O.C. v. Pacific Press Publishing Assoc., 676 F.2d 1272, 

1278 (9th Cir. 1982) (abrogated on other grounds) (editorial 

secretary at religious publishing company); Goodman v. Archbishop Curley High Sch., 149 F. Supp. 3d 577, 586 n.5 (D. Md. 

2016) (school librarian); Herx v. Diocese of Ft. Wayne-South

Bend, 48 F. Supp. 3d 1168, 1177 (N.D. Ind. 2014) (language arts 
No. 19-2142 49

teacher at Catholic school who did not lead religious observance and who was deemed a “lay teacher”), appeal dismissed, 772 F.3d 1085 (7th Cir. 2014); Davis v. Baltimore Hebrew 

Congregation, 985 F. Supp. 2d 701, 711 (D. Md. 2013) (facilities 

manager and janitor for synagogue); Dias v. Archdiocese of Cincinnati, 2012 WL 1068165, at *5 (S.D. Ohio Mar. 29, 2012) (computer teacher at Catholic high school who was not a Catholic 

and was barred from teaching Catholic doctrine). Also, of 

course, federal courts are familiar with cases of doctors sexually harassing nurses and principals sexually harassing 

teachers. The combination of the majority’s holding in this 

case with efforts to expand the categories of employees 

deemed “ministerial” threatens to leave many without basic 

legal protection of their dignity and employment.

* * *

The hostile environment claims before us present a conflict 

between two of the highest values in our society and legal system: religious liberty and non-discrimination in employment. 

The Supreme Court has not answered this question, nor does 

the First Amendment itself. Circuits and state courts are divided. For the reasons explained above and in the panel majority, I submit that the majority’s absolute bar to statutory 

hostile environment claims by ministerial employees is not 

necessary to protect religious liberty or to serve the purposes 

of the ministerial exception. The majority’s reasoning also 

stands in tension with the other categories of similar cases that 

may proceed in civil courts. I would allow plaintiff to pursue 

his hostile environment claims with the understanding that 

the district court should intervene if the specific case poses a 

serious threat to religious liberty.