In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 19-2142 

SANDOR DEMKOVICH, 

Plaintiff-Appellee, 

v.

ST. ANDREW THE APOSTLE PARISH, CALUMET CITY, and THE 

ARCHDIOCESE OF CHICAGO, 

Defendants-Appellants. 

____________________ 

Appeal from the United States District Court for the 

Northern District of Illinois, Eastern Division. 

No. 1:16-cv-11576 — Edmond E. Chang, Judge. 

____________________ 

ARGUED NOVEMBER 5, 2019 — DECIDED AUGUST 31, 2020 

____________________ 

Before FLAUM, ROVNER, and HAMILTON, Circuit Judges. 

HAMILTON, Circuit Judge. The First Amendment prohibits 

enforcement of federal employment discrimination statutes 

against decisions of churches and other religious 

organizations to hire or fire their “ministerial employees.” 

Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 

(2020); Hosanna–Tabor Evangelical Lutheran Church & School v. 

EEOC, 565 U.S. 171 (2012). This interlocutory appeal presents 
2 No. 19-2142 

a question about extending this exemption beyond hiring and 

firing decisions: should the constitutional exemption be 

extended to categorically bar all hostile environment 

discrimination claims by ministerial employees, even where 

there is no challenge to tangible employment actions like 

hiring and firing? Our answer is no. 

In the United States legal system, encounters between 

churches and civil law are always fraught. Such cases, including this one, can pose a tension between two valued legal 

goods: constitutional protection of the freedom of religion 

and other legal rights. In such cases, the courts have a long 

history of balancing and compromising to protect religious 

freedom while enforcing other important legal rights. The 

problem here is particularly sensitive, involving tension between the freedom of religion and employees’ rights to be free 

from invidious discrimination, also a compelling governmental interest. E.g., New York State Club Ass’n v. City of New York, 

487 U.S. 1, 14 n.5 (1988). The problem is not so sensitive as to 

preclude line-drawing altogether. 

Defendants urge us to bar all statutory hostile environment claims by ministerial employees. Recognizing the history of balance and compromise, defendants acknowledge 

that the First Amendment does not bar those same ministerial 

employees from bringing contract and tort claims against 

their employers and supervisors. Nor does the First Amendment bar enforcement of criminal laws arising from mistreatment of those same employees. Plaintiff argues that churches 

do not need, as a matter of constitutional law, complete protection from statutory harassment claims so long as they do 

not challenge any tangible employment actions used to select 

and control ministerial employees. 
No. 19-2142 3

The right balance is to bar claims by ministerial employees 

challenging tangible employment actions but to allow hostile 

environment claims that do not challenge tangible employment actions. Religious employers’ control over tangible employment actions—hiring, firing, promoting, deciding compensation, job assignments, and the like—provides ample 

protection for the free exercise of religion. The First Amendment does not require complete immunity from the sometimes horrific abuse that defendants’ bright-line rule would 

protect. 

Sensitive issues of potential entanglement, to use the language of Establishment Clause jurisprudence, lie ahead. We 

are not persuaded, however, that they cannot possibly be 

managed in a balanced way that protects both religious liberty and the rights of employees to be free from discriminatorily hostile work environments. In so holding, we join the 

Ninth Circuit, see Bollard v. California Province of the Society of 

Jesus, 196 F.3d 940 (9th Cir. 1999); Elvig v. Calvin Presbyterian 

Church, 375 F.3d 951 (9th Cir. 2004), and depart from the 

Tenth, see Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 

F.3d 1238 (10th Cir. 2010). 

I. Factual Allegations and Procedural Background 

We review here a ruling on a motion to dismiss under Rule 

12(b)(6), so we treat as true the factual allegations of the operative complaint. E.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007);

Anicich v. Home Depot U.S.A., Inc., 852 F.3d 643, 648 (7th Cir. 

2017).

Plaintiff Sandor Demkovich was hired in 2012 as the music 

director at St. Andrew the Apostle Parish, a Catholic church 

in Calumet City, Illinois. He was fired in 2014. Demkovich is 
4 No. 19-2142 

gay. When he was hired, he had been with his partner (now 

husband) for over a decade. He also was overweight and suffered from diabetes and metabolic syndrome, and he had 

these conditions before St. Andrew hired him.

Demkovich’s supervisor was Reverend Jacek Dada. According to Demkovich, Reverend Dada subjected him to a 

hostile work environment based on his sexual orientation and 

his disabilities.1 Demkovich alleges that Reverend Dada repeatedly and often subjected him to comments and epithets 

showing hostility to his sexual orientation, and increased the 

frequency and hostility after learning that Demkovich intended to marry his partner and again as the date of the ceremony approached. After the ceremony, Reverend Dada demanded Demkovich’s resignation because his marriage violated Church teachings. Demkovich refused, and Reverend 

Dada then fired him.

Demkovich also alleges that Reverend Dada repeatedly 

harassed and humiliated him based on his weight and medical issues. According to Demkovich, his job did not call for 

any particular physical-fitness requirements, and Reverend 

Dada never connected his disparaging and humiliating comments to Demkovich’s job performance. Demkovich alleges 

1 After oral argument in this appeal, the Supreme Court held that discrimination on the basis of sexual orientation amounts to discrimination 

based on sex, generally prohibited in employment under Title VII of the 

Civil Rights Act of 1964. Bostock v. Clayton County, 140 S. Ct. 1731 (2020); 

accord, Hively v. Ivy Tech Cmty. College 853 F.3d 339 (7th Cir. 2017) (en 

banc). Also, hostile environment claims may be pursued under the Americans with Disabilities Act. Ford v. Marion County Sheriff’s Office, 942 F.3d 

839, 852 (7th Cir. 2019). 
No. 19-2142 5

that Reverend Dada’s harassment on both grounds “humiliated and belittled” him, causing serious harm to his physical 

and mental health.

Demkovich sued the St. Andrew parish and the Archdiocese of Chicago. The operative complaint asserts hostile environment claims under both Title VII and the Americans with 

Disabilities Act. The church moved to dismiss for failure to 

state a claim, invoking the ministerial employee exception. 

The district court granted the motion in part, dismissing the 

Title VII claim but allowing the ADA claim to proceed. Demkovich v. St. Andrew the Apostle Parish, 343 F. Supp. 3d 772, 789 

(N.D. Ill. 2018).

This is an appeal under 28 U.S.C. § 1292(b). Defendants 

persuaded the district court to certify a broad legal question, 

not limited to the factual details of the particular case. See 

Ahrenholz v. Board of Trustees of the Univ. of Illinois, 219 F.3d 

674, 677 (7th Cir. 2000). The district court certified the following question: 

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 agreed that the broad question 

was suitable for interlocutory appeal under § 1292(b), and an 

appeal under § 1292(b) brings up the whole certified order. 

United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 609 (7th 

Cir. 2000). Our review is de novo. See Anicich, 852 F.3d at 648. 
6 No. 19-2142 

II. The Ministerial Exception and Hostile Environment Claims 

A. Origins and Purpose of the Ministerial Exception

To decide the question about extending the ministerial exception to hostile environment claims, we begin by looking to 

its origins and purpose. In 2012, consistent with decisions of 

every circuit, the Supreme Court recognized the ministerial 

exception in Hosanna–Tabor. See 565 U.S. at 188 n.2 (collecting 

cases). The Court affirmed summary judgment for the employer on the EEOC’s claim that a ministerial employee was 

fired in retaliation after she asserted rights under the ADA. 

The ministerial exception is not a statutory interpretation. 

It is an application of the First Amendment: “Requiring a 

church to accept or retain an unwanted minister, or punishing 

a church for failing to do so, intrudes upon more than a mere 

employment decision. Such action interferes with the internal 

governance of the church, depriving the church of control 

over the selection of those who will personify its beliefs.” 565 

U.S. at 188. This kind of interference violates both the Free Exercise and Establishment Clauses of the First Amendment. 

First, “[b]y imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious 

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

appointments.” Id. Second, “[a]ccording the state the power 

to determine which individuals will minister to the faithful 

also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” Id. at 

188–89.2

2 The generic term “church” in Hosanna–Tabor and other ministerial 

exception cases extends of course to religious bodies of any faith. In this 

appeal, we attempt to restrict our use of the term “church” or “Church” to 
No. 19-2142 7

This exception is not limited to religious discrimination 

claims. It extends to sex, race, national origin, age, disability, 

and now sexual orientation discrimination. Hosanna–Tabor

also made clear that the exception applies whether or not the 

decision was grounded in religious doctrine. 565 U.S. at 194 

(“The purpose of the exception is not to safeguard a church’s 

decision to fire a minister only when it is made for a religious 

reason.”). Hosanna–Tabor explained that the purpose of the 

ministerial exception is to “ensure[] that the authority to select 

and control who will minister to the faithful—a matter 

‘strictly ecclesiastical’—is the church’s alone.” Id. at 194–95, 

quoting Kedroff v. St. Nicholas Cathedral of Russian Orthodox 

Church in North America, 344 U.S. 94, 119 (1952); accord, Our 

Lady of Guadalupe School, 140 S. Ct. at 2055. 

The Court said in Hosanna–Tabor that it was not deciding 

the question we face here, whether the ministerial exception 

applies to suits that do not result from the firing of a 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.” 565 U.S. at 196. Because 

Demkovich’s amended complaint addresses only his treatment by his supervisor while he was employed and does not 

refer specifically to defendants St. Andrew the Apostle Parish and the 

Archdiocese of Chicago, or the Catholic Church as a whole, as appropriate. We use “religious organization” and the like as our generic term. 
8 No. 19-2142 

challenge his firing, it falls into the area that Hosanna–Tabor 

declined to reach. 

B. Common Ground

To focus our discussion of the disputed issue, it may be 

helpful to identify some important issues that are not disputed. 

First, the parties agree that churches are not exempt from 

federal employment discrimination laws as applied to their 

non-ministerial employees. (Title VII includes an exception 

that allows religious employers to favor employment of people of a particular religion, but that exception is not relevant 

here. See 42 U.S.C. § 2000e-1(a).) As a general matter, it does 

not violate the First Amendment to apply federal employment discrimination laws to churches and other religious employers. 

Second, the parties agree that Demkovich was a “ministerial employee” within the meaning of Hosanna–Tabor and Our 

Lady of Guadalupe School. Hosanna–Tabor recognized the category in the abstract, and the scope of the category was the 

principal issue in Our Lady of Guadalupe School. We and other 

courts have by now issued numerous opinions mapping the 

boundaries between ministerial employees and others in a 

host of religious communities and institutions. That issue is 

not disputed here. 

Third, the certified question assumes that plaintiff has alleged viable hostile environment claims under both Title VII 

and the ADA, apart from the ministerial exception. We therefore do not dwell on the details of his factual allegations and 

whether they add up to sufficiently severe or pervasive hostility motivated by animus based on sex or disability. 
No. 19-2142 9

Fourth, for purposes of this appeal, we also assume that 

plaintiff would be able to establish a basis for employer liability under Title VII and the ADA. As the interlocutory appeal 

has been framed, there is no issue concerning the church’s liability for Reverend Dada’s actions under Faragher v. City of 

Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. 

v. Ellerth, 524 U.S. 742 (1998), including their affirmative defense in cases not involving tangible employment actions for 

employers who can show they established channels for complaints and that the employee failed to take reasonable advantage of those channels. 

Fifth, the parties treat Reverend Dada’s alleged harassment of Demkovich as motivated by his and the Church’s religious beliefs, if not actually required by those beliefs. This 

motivation is assumed for the alleged harassment based on 

both sexual orientation and disability. 

C. The Dispute Over Hostile Environment Claims

Against this background of points of agreement, we can 

focus on the disagreement here. As framed for this appeal, 

that disagreement is over the answer to a rather broad and 

abstract question of law: whether ministerial employee plaintiffs may ever bring hostile environment claims against religious employers. We do not address whether plaintiff Demkovich can prove that he suffered a hostile work environment. 

(That’s a matter for trial or perhaps summary judgment.) Nor 

do we address, at this stage, whether some particular claims 

by some ministerial employees might pose insoluble problems of entanglement. The question as framed here is whether 

we can imagine any set of facts under which ministerial employees could bring hostile environment claims without running afoul of the Constitution. We can. 
10 No. 19-2142 

Religious organizations are not totally exempt from all legal claims by ministerial employees. Defendants here recognize that ministerial employees may be able to sue their employers and supervisors for at least some breaches of contract 

and for torts, including those committed in an employment 

relationship. Defendants also recognize that the criminal law 

may reach crimes committed in the employment relationship. 

Defendants argue that although the First Amendment does 

not categorically bar those sorts of claims, it does categorically 

bar all claims under federal discrimination statutes. 

Plaintiff reminds us that he seeks only to apply a federal 

statute as written, so that any constitutional restriction must 

be justified as necessary to protect First Amendment liberties. 

Plaintiff argues that the proper line is between a ministerial 

employee’s challenge to tangible employment actions (hiring, 

firing, job assignment, compensation, and the like), which is 

not permitted, and a challenge to a discriminatorily hostile environment based on race, sex, age, national origin, or disability. Plaintiff argues that a religious employer’s ability to take 

tangible employment actions free of statutory liability gives 

the employer ample freedom to “select and control” its ministerial employees. The First Amendment does not require, 

says plaintiff, additional protection in the form of complete 

immunity from hostile environment claims. 

D. Circuit Court Decisions

The Supreme Court has not answered the question we face 

here. Defendants and the dissenting opinion argue that we 

have already decided this question in Alicea–Hernandez v. 

Catholic Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003). We 

wrote there: “The ‘ministerial exception’ applies without re-
No. 19-2142 11

gard to the type of claims being brought.” Defendants interpret this sentence to bar all claims, including hostile environment claims, by a ministerial employee. That reading takes 

the sentence out of context and reads it too broadly. 

Alicea–Hernandez worked for the Archdiocese of Chicago 

as Hispanic Communications Manager, but she resigned after 

a year. She sued for sex and national origin discrimination, 

alleging “poor office conditions,” exclusion from key 

meetings, denial of resources and training she needed to do 

her job, and constructive discharge. 320 F.3d at 700. She was 

pro se when she filed her complaint, though she had counsel 

by the time her case came to our court. See id. at 702. She did 

not clearly delineate her claims by reference to causes of 

action for wrongful termination and/or a hostile work 

environment. Nor did our opinion, which did not mention 

any hostile environment claim. Our description of her claims 

in the opinion indicated that she was challenging tangible 

employment actions such as denial of training and resources, 

exclusion from meetings, and discharge. See, e.g., Lewis v. City 

of Chicago, 496 F.3d 645, 653−54 (7th Cir. 2007) (denial of 

training could be adverse employment action); Johnson v. City 

of Fort Wayne, 91 F.3d 922, 932−33 (7th Cir. 1996) (exclusion 

from meetings of supervisors could be adverse employment 

action). The question before us today simply was not 

presented in Alicea–Hernandez.

3

3 Contrary to the dissenting opinion, Alicea–Hernandez’s allegations 

of emotional distress and humiliation did not signal claims for a hostile 

work environment. Unlawful discrimination in tangible employment decisions—firings, denials of promotion, and the like—often causes humiliation and emotional distress. These are well-recognized elements of damages in such cases. See, e.g., Merriweather v. Family Dollar Stores of Indiana, 
12 No. 19-2142 

The limits of the Alicea–Hernandez language are also clear 

when it is read in context. Defendants’ quotation appeared in 

our rejection of plaintiff’s argument that the court should try 

to distinguish between actions taken with secular motives and 

those with religious motives: 

The question for us to answer therefore is 

whether Alicea–Hernandez’s position as 

Hispanic Communications Manager can 

functionally be classified as ministerial. Alicea–

Hernandez suggests that we also need to look to 

the nature of her claims and whether the 

discrimination in question was exclusively 

secular. Here she is mistaken. The “ministerial 

exception” applies without regard to the type of 

claims being brought. This was explained by the 

Fourth Circuit in EEOC v. Roman Catholic 

Diocese: 

[T]he ministerial exception to Title 

VII is robust where it applies. ... 

Inc., 103 F.3d 576, 580−81 (7th Cir. 1996); Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227−29 (7th Cir. 1995); Federal Civil Jury Instructions of the Seventh Circuit § 3.10 (2015). 

In addition, the dissenting opinion points out that Alicea–Hernandez 

used the phrase “hostile environment” at several places in her appellate 

brief. Post at 37. A closer look shows, however, that she was complaining 

about unequal treatment in terms of resources (no computer, poor 

furniture), limited training opportunities, and similar tangible conditions 

of employment. Her brief did not articulate an otherwise viable theory of 

hostile environment liability. See Brief of Plaintiff-Appellant, Alicea–

Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003) (No. 02-

2280), 2002 WL 32172619. 
No. 19-2142 13

The exception precludes any inquiry whatsoever into the reasons 

behind a church’s ministerial employment decision. The church 

need not, for example, proffer any religious justification for its decision, 

for the Free Exercise Clause “protects the act of a decision rather than 

a motivation behind it.” 

213 F.3d at 802 (quoting Rayburn [v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 

1169 (7th Cir. 1985)]). To rule otherwise would 

enmesh the court in endless inquiries as to 

whether each discriminatory act was based in Church 

doctrine or simply secular animus. The Fifth Circuit has provided the following rationale for 

this rule: 

[A]n investigation and review of 

such matters of church administration and government as a 

minister’s salary, his place of assignment and his duty, which involve a person at the heart of any 

religious organization, could only 

produce by its coercive effect the 

very opposite of that separation of 

church and State contemplated by 

the First Amendment. 

McClure [v. Salvation Army, 460 F.2d 553, 560 

(5th Cir. 1972)]. 
14 No. 19-2142 

It is therefore not our role to determine whether the 

Church had a secular or religious reason for the alleged mistreatment of Alicea–Hernandez. The 

only question is that of the appropriate characterization of her position. 

320 F.3d at 703 (emphases added). 

In context, the sentence defendants rely upon was aimed 

at challenges to tangible employment actions. It was not addressing the difference between tangible employment actions 

and hostile environments. It was instead rejecting the argument that discriminatory tangible employment actions with 

secular motives against a minister should be actionable. Our 

holding on this point in Alicea–Hernandez anticipated the Supreme Court’s holding in Hosanna–Tabor: religious organizations may hire or fire ministerial employees for any reason, 

religious or secular. 565 U.S. at 194–95. The quoted sentence 

remains sound in context, but we did not embed in that sentence an implied decision to create a split with the Ninth Circuit on the issue we face here. 

Before Alicea–Hernandez, the Ninth Circuit had drawn a 

line between tangible employment actions and hostile environment claims. In Bollard v. California Province of 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 

then-emerging ministerial exception. See id. at 944.

The Ninth Circuit reversed, emphasizing that the case did 

not present any challenge to “the Jesuit order’s choice of rep-
No. 19-2142 15

resentative, a decision to which we would simply defer without further inquiry.” Id. at 947. The Jesuits also did not defend 

the alleged harassment as motivated by religious faith; the 

Jesuits condemned it. 

The Ninth Circuit found that the Free Exercise Clause did 

not require the courts to deny relief: 

The Free Exercise Clause rationale for 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 protectedchoice 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 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 
16 No. 19-2142 

a church, the Ninth Circuit found no constitutional barrier to 

the sexual harassment claim that did not challenge any tangible employment action. 

The Ninth Circuit followed that same course in Elvig v. 

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

drew essentially the same line we draw here. The plaintiff was 

an ordained minister who alleged that a senior minister sexually harassed her and retaliated against her. The district 

court dismissed. Following Bollard, the Ninth Circuit held that 

the plaintiff could not challenge any tangible employment decisions but that she could pursue her hostile environment 

claims, including damages for emotional distress and reputational harm. Id. at 953.4

The Tenth Circuit took a different approach in Skrzypczak 

v. Roman Catholic Diocese of Tulsa, 611 F.3d 1238 (10th Cir. 

2010), where the plaintiff was a ministerial employee and 

sued for sex discrimination, including both tangible employment actions and a sexually hostile environment. The Tenth 

Circuit affirmed dismissal of all claims, reasoning that even 

4 The Ninth Circuit did not depart from Bollard and Elvig in Werft v. 

Desert Southwest Annual Conf. of United Methodist Church, 377 F.3d 1099 (9th 

Cir. 2004). The plaintiff there was a minister who sued for failure to accommodate his disabilities. To avoid the ministerial exception, he tried to 

invoke Bollard by casting his claim in terms of a hostile environment. The 

Ninth Circuit rejected that attempt, correctly treating the claim for failure 

to accommodate as one challenging tangible employment actions, thus 

distinguishing Bollard and Elvig. See 377 F.3d at 1103−04. The Ninth Circuit’s decisions are thus consistent with each other. The dissenting opinion 

treats Werft as having created an intracircuit split without saying so. 
No. 19-2142 17

the hostile environment claim would pose too great a threat 

of entanglement with religious matters. Id. at 1245.5

E. Tangible Employment Actions, Hostile Environments, and 

the Free Exercise Clause 

The ministerial exception is a matter of constitutional law, 

not statute. Our Lady of Guadalupe School, 140 S. Ct. at 2055; 

Hosanna–Tabor, 565 U.S. at 188. The question here is not 

whether we believe as a matter of policy that religious employers should be exempt from hostile environment claims. 

The question is whether that exemption is necessary under the 

First Amendment. Bollard, 196 F.3d at 947. In terms of the Free 

Exercise Clause, the answer is no. 

The ministerial exception ensures that religious organizations are able to “select and control” their ministers without 

interference from civil law like employment discrimination 

statutes and their procedures for enforcement. Hosanna–Tabor, 

565 U.S. at 195; accord, Our Lady of Guadalupe School, 140 S. Ct. 

at 2060–61. That purpose can be accomplished by applying 

the ministerial exception to all tangible employment actions, 

which give religious employers ample tools to both select and 

control their ministerial employees. 

Selection is clear enough. Hiring, firing, promoting, retiring, transferring—these are decisions that employers, including religious organizations, make to select those who carry 

5 The Tenth Circuit said it was following our decision in Alicea–

Hernandez, quoting the same sentence defendants emphasize here, to the 

effect that “the ministerial exception applies without regard to the type of 

claims being brought.” Skrzypczak, 611 F.3d at 1245, quoting Alicea–

Hernandez, 320 F.3d at 703. As explained above, we do not read Alicea–

Hernandez so broadly. 
18 No. 19-2142 

out their work. Further control is available through a host of 

other tangible employment actions, including decisions about 

compensation and benefits, working conditions, resources 

available to do the job, training, support from other staff and 

volunteers ... the list could go on. 

Employment discrimination law recognizes an employer’s 

power to control work of its employees in these many ways. 

That’s why employers are held accountable for these tangible 

decisions when a manager makes such a decision with an unlawful purpose. See Ellerth, 524 U.S. at 762 (“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”). 

Hostile environment claims arise under the same statutes, 

but they involve different elements and specially tailored 

rules for employer liability. These differences show that a religious employer does not need exemption from such claims 

to be able to “select and control” its ministers. 

Hostile environment claims are essentially tortious in nature. See Ellerth, 524 U.S. at 756–57; Faragher, 524 U.S. at 793–

94. They use different standards for holding an employer liable for actions that render the environment hostile, and they 

do so precisely because the behavior that creates the hostile 

environment is not essential for management supervision and 

control of employees. 

That different character of hostile environment claims began to emerge in the early cases. See, e.g., Meritor Savings 

Bank, FSB v. Vinson, 477 U.S. 57, 65–66 (1986) (collecting cases 

on hostile environments). In Harris v. Forklift Systems, Inc., 510 

U.S. 17 (1993), the Supreme Court developed the definition of 
No. 19-2142 19

an actionable hostile work environment: “When the workplace is permeated with discriminatory intimidation, ridicule, 

and insult that is sufficiently severe or pervasive to alter the 

conditions of the victim’s employment and create an abusive 

working environment, Title VII is violated.” Id. at 21, quoting 

Meritor Savings Bank, 477 U.S. at 65, 67 (quotation marks omitted). This is a demanding standard; a plaintiff’s evidence 

must go well beyond showing rudeness or incivility, Faragher, 

524 U.S. at 788 (standards are “sufficiently demanding to ensure that Title VII does not become a ‘general civility code’”); 

Alamo v. Bliss, 864 F.3d 541, 550 (7th Cir. 2017), even if it need 

not reach the point of “hellishness.” See Johnson v. Advocate 

Health & Hospitals Corp., 892 F.3d 887, 901 (7th Cir. 2018).6 

The lack of constitutional necessity for barring ministerial 

employees’ hostile environment claims becomes clear from 

the tort-law origins of the claims and the basis for employer 

liability for them, as explained in Ellerth and Faragher. In those 

decisions, the Court used the line between tangible employment actions and hostile environments to set different standards for employer liability.7

6 For statements of the elements of a viable hostile environment claim, 

see, e.g., Johnson, 892 F.3d at 900; Passananti v. Cook County, 689 F.3d 655, 

667 (7th Cir. 2012). 

7 The dissenting opinion asserts that courts will not be able to distinguish between tangible employment actions and other wrongs. Post at 38. 

In fact, federal courts have been applying that line for decades. That line 

controls whether an employer may invoke the affirmative defense in Faragher and Ellerth. See Ellerth, 524 U.S. at 761 (“A tangible employment action constitutes a significant change in employment status, such as hiring, 

firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”); id. 

at 763; see also Federal Civil Jury Instructions of the Seventh Circuit 
20 No. 19-2142 

In general, “sexual harassment by a supervisor is not 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 that their power as employers to 

take tangible employment actions against ministerial employees does not give them enough power to “select and control” 

those employees. But Harris teaches that a hostile work environment simply is not a permissible means of exerting (constitutionally protected) “control” over employees and accomplishing the mission of the business or religious organization. 

510 U.S. at 23. 

The ministerial exception gives religious organizations the 

power to use the full range of tangible employment actions to 

select and control their ministerial employees without judicial 

review or government interference under these federal statutes. These employers are thus able to control their employees 

in every way that would be necessary to exercise their religious freedoms. It is hard to see how the Church could not 

have adequately controlled plaintiff as a ministerial employee 

by deciding whether to hire him and whether to fire him, or 

§§ 3.05A & 3.05B (different instructions depending on whether claim is 

based on tangible employment action). 
No. 19-2142 21

by deciding his job duties, his place of work, his work schedule, his compensation, the resources he needed to work, and 

so forth. 

Subjecting plaintiff to the abuse alleged here is neither a 

statutorily permissible nor constitutionally protected means 

of “control” within the meaning of Hosanna–Tabor. Hosanna–

Tabor made clear that its holding does not cover “actions by 

employees alleging ... tortious conduct by their religious employers.” 565 U.S. at 196. The conduct plaintiff alleges here is 

classic tortious harassment under Meritor Savings Bank, Harris, 

Ellerth, Faragher, and countless other cases: his supervisor 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. 

An employer’s need and right to control employees 

should not and does not embrace harassing behavior that the 

Supreme Court has defined in numerous cases in terms of 

what “unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23. The notion that such harassment is necessary to control or supervise an employee is, under employment discrimination law, an oxymoron. We presume an employer is interested in maximizing the employee’s 

ability to perform his or her stated duties to further the organization’s objectives, not in permitting a supervisor to “control” the employee through abuse that actively inhibits job 

performance and is beyond the scope of that supervisor’s own 

employment.8

8 The dissenting opinion suggests that the line between tangible employment actions and hostile environments creates “a perverse incentive” 
22 No. 19-2142 

The defendants have asserted at various times that Reverend Dada’s conduct was motivated by Catholic doctrine. That 

conduct can lawfully be imputed to the Catholic Church as an 

employer only if the Church embraced that conduct as its own 

employment policy through constructive or actual knowledge 

and failure to act. (Consider, for example, a case of similar 

harassment aimed at a non-ministerial employee, where such 

harassment would certainly be unlawful despite its religious 

motive.) Hosanna–Tabor’s decision not to extend constitutional 

protection to tortious conduct, in combination with the 

Court’s understanding of hostile work environments as essentially tortious in nature, point toward allowing hostile 

work environment claims by ministerial employees so long as 

they do not challenge tangible employment actions. 

Hosanna–Tabor protects the rights of religious employers, 

not supervisors within those religious organizations. That 

feature of the ministerial exception lends further support to 

our conclusion. The opinion speaks of “religious organizations” and “churches,” considering the rights of those entities 

as employers. Because tangible employment actions are directly attributable to employers, holding that those claims are 

off-limits to ministerial employees fits with Hosanna–Tabor’s 

focus on the institutional rights of employers. 

Hostile environment claims are quite different. They concern the behavior of individual co-workers and/or supervisors that is generally treated as outside the scope of employment. Such behavior may be attributable to the employer in 

by encouraging employers to create an environment so hostile as to cause 

a constructive discharge. Post at 39. We disagree. An employer who wants 

to remove a ministerial employee may simply fire him, as defendants 

eventually fired plaintiff here.
No. 19-2142 23

case of employer negligence or abuse of power over tangible 

employment actions, such as decisions to fire, demote, etc., 

which are off limits with ministerial employees. Supervisors 

within religious organizations have no constitutionally protected individual rights under Hosanna–Tabor to abuse those 

employees they manage, whether or not they are motivated 

by their personal religious beliefs. We do not address here the 

genuineness or substance of Reverend Dada’s religious motivations for his actions toward Demkovich. We note only that 

Hosanna–Tabor grants him, personally, no special protection to 

express his religious beliefs beyond that generally provided 

by the Free Exercise Clause. 

F. Consequences

The defendants and the dissenting opinion advocate categorically barring ministerial employees from bringing any 

hostile work environment claim. With respect, this argument 

reaches too far. We can agree with the dissent’s general statements about religious liberty and the importance of the ministerial exception, at least in cases challenging the selection 

and control of ministers. These statements about religious liberty are not the whole story, however. We must also account 

for the limits of Hosanna–Tabor and the reality that civil courts 

may hear and decide a range of other cases involving ministers and religious employers without violating the First 

Amendment. 

The defendants draw conclusions that depart from the origins and purpose of the ministerial exception, and from the 

careful balancing that courts use in these delicate encounters 

between civil law and faith. In answering the abstract question whether hostile work environment claims should ever be 

available to ministerial employees, we must consider the full 
24 No. 19-2142 

range of facts that might prompt such employees to bring 

such claims. 

Within this circuit alone, such claims have been brought 

on the basis of highly disturbing facts. For example, in Cerros 

v. Steel Technologies, Inc., 288 F.3d 1040 (7th Cir. 2002), plaintiff

Cerros, who is Hispanic, was subjected to horrific racial harassment stemming from his supervisors’ explicit embrace of 

the philosophy “if it ain’t white it ain’t right.” Co-workers and 

supervisors harassed him with derogatory terms for Hispanic 

people and painted racist graffiti on bathroom walls, including “KKK” and “White Power.” Cerros’s tires were slashed in 

the company parking lot. Despite Cerros’s repeated complaints, the company never investigated or took any remedial 

action. Id. at 1042–43. 

In Henderson v. Irving Materials, Inc., 329 F. Supp. 2d. 1002 

(S.D. Ind. 2004), plaintiff was the only Black employee of a 

concrete company. He was subjected to racist jokes from the 

start of his employment, but that was only the beginning of 

the campaign of racist terror he suffered. Hendersonʹs work 

uniform and truck were repeatedly vandalized. A co-worker 

repeatedly insinuated that he belonged to the Ku Klux Klan; 

when Henderson asked the co-worker directly whether he 

had previously been in the KKK, their common supervisor 

corrected Henderson, saying that the co-worker was still a 

KKK member. The KKK member told Henderson and another 

employee, again in a supervisor’s presence, that he’d like to 

“drag [Henderson] ... down the street on the back of my pickup truck,” and then tried to lure him outside. Another employee twice tried to hit Henderson with a truck in the company parking lot. The company had done nothing to stop the 

harassment and terrorizing. Id. at 1006–08. 
No. 19-2142 25

In Porter v. Erie Foods International, Inc., 576 F.3d 629, 635 

(7th Cir. 2009), a Black employee repeatedly had a noose left 

at his work station and suffered violent intimidation in the 

workplace. In Brooms v. Regal Tube Co., 881 F.2d 412, 417 (7th 

Cir. 1989), a supervisor repeatedly showed racist pornography to an employee, threatened to force her to engage in bestiality, and threatened to kill her. In EEOC v. Management Hospitality of Racine, Inc., 666 F.3d 422, 428–30, 432 (7th Cir. 2012), 

a restaurant manager sexually harassed and assaulted multiple teenage employees, one during every single shift they 

worked together. See also Smith v. Rosebud Farm, Inc., 898 F.3d 

747, 749–50 (7th Cir. 2018) (plaintiff was subjected to four 

years of groping, mimed sex acts, and racial slurs; he was 

threatened with meat cleavers and his tires were slashed after 

he reported workplace abuse to a supervisor); Gates v. Board 

of Education, 916 F.3d 631, 637–39 (7th Cir. 2019) (plaintiff was 

subjected to repeated use of vicious racial epithets; collecting 

a number of other cases in which racial and sex-based abuse 

constituted a hostile work environment). We could go on. 

In their briefing and at oral argument in this case, defendants 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 

seem, then, to violate the supervisor’s or the employer’s constitutional rights of free exercise of religion. If criminal or tort 

cases do not, then it is hard to see why a statutory case based 

on the same conduct would necessarily violate the First 

Amendment, whether or not the supervisor claims a religious 

motive. See, e.g., Bollard, 196 F.3d 940; Elvig, 375 F.3d 951. 
26 No. 19-2142 

Keeping in mind that the ministerial exception is driven 

by constitutional necessity, see Hosanna–Tabor, 565 U.S. at 188; 

Bollard, 196 F.3d at 947, we conclude that the First Amendment does not require that supervisors and co-workers of 

ministerial employees have the right, for example, to leave 

nooses at the desk of a Black minister while repeatedly subjecting him to verbal abuse with racial epithets and symbols, 

or to subject a teacher to pervasive and unwelcome sexual attention, or to subject another to intimidating harassment 

based on national origin. Such harassment is not constitutionally necessary to “control” ministerial employees. We hope 

that such extreme allegations against religious organizations 

would be very rare. In answering the broad question defendants present here, however, we must keep in mind the wide 

range of religious organizations and the broad sweep of the 

rule defendants advocate. 

G. The Establishment Clause and Entanglement 

Having concluded that hostile environment cases by ministerial employees do not categorically violate the Free Exercise Clause, we turn to the Establishment Clause aspects of 

the issue. Cases addressing the ministerial exception raise the 

concern that litigation of particular types of claims against religious organizations will excessively entangle them with the 

government. E.g., Bollard, 196 F.3d at 948–49; Elvig, 375 F.3d 

at 956–57; see generally Agostini v. Felton, 521 U.S. 203, 233 

(1997) (“Interaction between church and state is inevitable, ... 

. Entanglement must be ‘excessive’ before it runs afoul of the 

Establishment Clause.”); Neely-Bey Tarik-El v. Conley, 912 F.3d 

989, 1007 (7th Cir. 2019) (general rule is that, to constitute ex-
No. 19-2142 27

cessive entanglement, government action must involve intrusive government participation in, supervision of, or inquiry 

into religious affairs). 

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

not persuaded that excessive entanglement is so inevitable 

that no plaintiff should be permitted to try to prove a case of 

hostile environment. Courts have relatively little experience 

with such cases against religious employers. Perhaps defendants’ predictions of intolerable abuses and intrusions may 

come true. At this time, however, we are not persuaded that 

courts cannot manage a balance that respects the rights of 

both churches and their employees. 

Procedural entanglement “might ... result from a 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 decisions” even after final judgment. Rayburn v. General Conference 

of Seventh-Day Adventists, 772 F.2d 1164, 1171 (7th Cir. 1985). 

Substantive entanglement occurs “where the Government is 

placed in a position of choosing among competing religious 

visions.” EEOC v. Catholic University of America, 83 F.3d 455, 

465 (D.C. Cir. 1996) (quotation marks omitted). We consider 

first procedural and then substantive entanglement. 

1. Procedural Entanglement?

The potential for procedural entanglement does not justify 

a categorical rule against all hostile environment claims by 

ministerial employees. The defense arguments on procedural 
28 No. 19-2142 

entanglement face a major obstacle in the fact that religious 

employers have long been subject to employment discrimination suits by their non-ministerial employees. We know that 

the processes of civil litigation can be intrusive. No employer 

welcomes them. But civil litigation of such claims against religious employers has not been deemed a sufficient basis to 

require dismissal. Procedural entanglement is not necessarily 

any more a concern with hostile environment claims by ministerial employees than with claims by non-ministerial employees. 

On the subject of procedural entanglement, we find helpful guidance from Ohio Civil Rights Commission v. Dayton 

Christian Schools, Inc., 477 U.S. 619 (1986). A state civil rights 

commission started to investigate allegations that a religious 

school discriminated against a teacher because of her sex. As 

in Hosanna–Tabor, that teacher had agreed in her contract to 

resolve disputes within the church itself. The school ultimately fired her for complaining to the state government to 

start a civil investigation, contrary to this commitment. Id. at 

623. 

The school sought a federal injunction against the state 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. Dayton Christian Schools, 

477 U.S. at 625. 
No. 19-2142 29

Noting that “[e]ven religious schools cannot claim to be 

wholly free from some state regulation,” the Court had “no 

doubt that the elimination of prohibited sex discrimination is 

a sufficiently important state interest” to justify Younger 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. The Court gave no 

weight to the argument that church disputes were to be resolved internally, according to its own doctrine. 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 as it begins. 

That result is consistent with a 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, involving, for example, factual inquiries into the relationships between clergy and parishioners and 

into the internal disciplinary practices of the Church in the 

context of allegations of sexual abuse of children. Constitutional arguments do not foreclose such litigation. See, e.g., 

Martinelli v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 

409, 430–32 (2d Cir. 1999); Malicki v. Doe, 814 So. 2d 347, 351–

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

at 959 (allowing a minister’s hostile work environment claim 

to go forward where allegations would involve only “a purely 

secular inquiry” and would not require court to pass on issues 

of religious doctrine). 

Given the scope of the ministerial exception and the lack 

of any generalized immunity from litigation for religious organizations, the potential for procedural entanglement does 
30 No. 19-2142 

not bar plaintiff’s claims here entirely. Courts can deal with 

procedural entanglement problems as they arise rather than 

closing the courthouse doors to an entire category of cases. 

2. Substantive Entanglement? 

The more difficult problems arise here in terms of potential substantive entanglement. These are variations on a set of 

problems that courts have managed in litigation involving religious organizations across a range of subject matters, from 

contracts and property disputes to employment disputes, 

torts, and church elections and schisms. 

The general parameters are familiar. A civil court should 

not try to decide questions of correct faith and practice, such 

as deciding which of two rival groups seeking control of 

church property has the better theological or doctrinal 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. E.g., 

Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 

695–700 (1989) (denying charitable deductions where quid 

pro quo exchange for services was clear); Tony and Susan 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); Jones v. Wolf, 443 U.S. 595, 602–04 (1979) (resolving 

property dispute between rival factions of local church); 

NLRB v. Catholic Bishop, 440 U.S. 490, 503 (1979) (interpreting 

statute to deny NLRB jurisdiction over lay teachers in church 
No. 19-2142 31

schools); Serbian Eastern Orthodox Diocese for the U.S.A. v. Milivojevich, 426 U.S. 696, 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 from Russian hierarchy to 

leader of United States branch). 

Applied to this case, federal courts would have no business telling the Catholic Church what it should teach about 

same-sex marriage any more than about the doctrine of the 

Trinity or the relationship between faith and works. That easy 

answer does not answer the question before us, however. 

Defendants argue that Reverend Dada’s behavior toward 

Demkovich’s sexual orientation was motivated by church 

doctrine and that the manner in which he expressed or implemented this doctrine should be shielded from judicial scrutiny. Defendants also contend that Reverend Dada’s supervision of Demkovich authorized him to harangue Demkovich 

about his health: “Such comments would be viewed not as 

harassment, but as the proper formation of a member of the 

clergy.” The defendants’ embrace of the alleged harassment 

could distinguish this case from those before the Ninth Circuit, in which the defendant churches disavowed the alleged 

harassment. See Bollard, 196 F.3d at 947; Elvig, 375 F.3d at 959. 

The district court accepted this argument in part, dismissing 
32 No. 19-2142 

Demkovich’s sexual orientation claim but allowing his disability claim to go forward because the Archdiocese offered a 

Catholic doctrinal ground for the former but not the latter. See 

Demkovich, 343 F. Supp. 3d at 786, 788. 

We are not persuaded that the risk of substantive entanglement is so great that this case or all such cases must be dismissed without further inquiry or discovery. To violate the 

Establishment Clause, entanglement must be “excessive.” 

Agostini, 521 U.S. at 233. Plaintiff is not asking the court to pass 

on the substance of the Catholic Church’s religious doctrines 

or practices. Civil courts have nothing to say about whether 

the Church should permit same-sex marriage, for example, or 

whether the Church should have a hierarchical supervisory 

structure. The Church was free to decide whether to retain 

plaintiff as a minister or fire him. The government may not 

interfere with that decision. But plaintiff’s hostile work environment claims assert that some of those internal Church decisions caused behavior that constituted abuse under neutral, 

generally applicable standards that would be enforceable on 

behalf of a non-ministerial employee, and could also be enforced in a hostile environment case by a ministerial employee. As in cases applying secular legal rules to torts, contracts, or property disputes, courts may apply secular hostile 

environment jurisprudence to actions taken toward employees. 

We also find guidance from the line of Supreme Court 

cases involving the limits of free exercise of religion. The Supreme Court has long held that civil courts may and sometimes must draw lines at times around the ways in which religious beliefs are expressed. Reverend Dada could have chosen to express Church doctrine on same-sex marriage, or to 
No. 19-2142 33

exercise his supervisory powers, in non-abusive ways that 

would not add up to a hostile environment. Or consider the 

more extreme abuse we summarized above that would be insulated within religious organizations if we were to find that 

unconstitutional entanglement is inevitable, as defendants 

and the dissenting opinion argue. 

“We have never held that an individual’s religious beliefs 

excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Employment 

Division v. Smith, 494 U.S. 872, 878–79 (1990). Though aspects 

of Smith have been superseded by statute, government regulation of the outward expression of religious belief, where that 

regulation is not intended to target or dampen particular religious practices per se, remains generally permissible, though 

subject to a careful weighing of First Amendment freedoms 

against the governmental interest in that particular regulation. See Watson v. Jones, 80 U.S. 679, 714 (1871) (“Religious 

organizations come before us in the same attitude as other 

voluntary associations for benevolent or charitable purposes, 

and their rights of property, or of contract, are equally under 

the protection of the law, and the actions of their members 

subject to its restraints.”); United States v. Lee, 455 U.S. 252, 

260–61 (1982) (employer’s religious objections did not excuse 

payment of social security taxes); Church of the Lukumi Babalu 

Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531–32 (1993) (truly 

neutral and generally applicable laws may be enforced 

against churches and their practices); Gonzales v. O Centro 

Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 439 (2006) 

(“Congress has determined that courts should strike sensible 

balances, pursuant to a compelling interest test that requires 

the Government to address the particular practice at issue;” 

plaintiff religious organization won because the Government 
34 No. 19-2142 

failed to carry its burden, not because regulation was inherently inapplicable to religious organizations). 

Taking these lines of analysis together, we base our decision on three points. First, the Free Exercise Clause does not 

bar all hostile environment claims by ministerial employees. 

Second, the risk of procedural entanglement in such cases is 

modest because religious organizations have no generalized 

claim to immunity from litigation or regulation. Third, in hostile environment cases brought by ministerial employees, 

there is some risk of substantive entanglement, but that risk 

does not appear so severe that all such claims must be dismissed. We believe that risk can be managed by avoiding substantive decisions on issues of religious doctrine or belief and 

by balancing First Amendment rights with the employee’s 

rights and the government’s interest in regulating employment discrimination. We trust that district courts will manage 

these issues in their sound discretion. It is, of course, conceivable that certain cases may unavoidably present factual questions that would entangle courts excessively in substantive religious decision-making. District judges can narrow or dismiss such cases if they arise. But the possibility of some outlier 

cases does not persuade us that the First Amendment requires 

courts to bar an entire category of claims authorized by federal statute. 

The defendants and the dissenting opinion predict that 

cases like this will inevitably and gravely violate the First 

Amendment rights of religious institutions. Post at 43–44. We 

take that possibility seriously, but the First Amendment is not 

the only source of law and values that we must consider here. 

Hostile environment claims by ministerial employees have 
No. 19-2142 35

been few and far between. The federal courts have little experience with them. We believe it would be a mistake, and at 

least very premature at this time, to conclude that all such 

cases will inevitably violate the First Amendment and thus 

must be barred. 

* * * * * 

We answer the certified question in the NEGATIVE. Accordingly, we AFFIRM the decision of the district court denying dismissal of the disability claim, and REVERSE its decision dismissing the sexual orientation claim. The case is 

REMANDED for further proceedings consistent with this 

opinion. 
36 No. 19-2142 

FLAUM, Circuit Judge, dissenting. In my judgment, controlling precedent requires dismissal of Demkovich’s claims. In 

Alicea–Hernandez v. Catholic Bishop of Chicago, we held that the 

ministerial exception barred all of the plaintiff’s employment 

discrimination claims, including her hostile work environment claim. 320 F.3d 698, 702–04 (7th Cir. 2003). I would follow that holding here. The Church’s First Amendment right 

to select and control its ministers includes the ability to supervise, manage, and communicate with them free from government interference. Adjudicating Demkovich’s hostile work 

environment claims will unavoidably and excessively entangle the courts in religious matters at the core of the protected 

ministerial employment relationship. Accordingly, I respectfully dissent. 

I. Alicea–Hernandez

My colleagues’ holding rests on their view that the plaintiff in Alicea–Hernandez did not assert a hostile work environment claim. But the complaint in Alicea–Hernandez alleged 

both tangible employment action and an “intangible” hostile 

work environment: 

I was subjected to prolonged humiliation and 

emotional stress of working under unequal and 

unfair conditions of employment; was excluded 

from management meetings, training and information required for me to perform my duties; 

was ordered evicted from the premises and replaced by a male Hispanic with less competence 

and experience in Hispanic communication. 
No. 19-2142 37 

Id. at 702. By alleging “prolonged humiliation and emotional 

stress of working under unequal and unfair conditions of employment,” the plaintiff asserted a hostile work environment 

claim. Those allegations largely track the legal standard for 

hostile work environment. See Harris v. Forklift Sys., Inc., 510 

U.S. 17, 21 (1993) (stating that a hostile work environment 

claim exists “[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment”) (citation and internal quotation marks omitted); see 

also Johnson v. Advocate Health & Hosps. Corp., 892 F.3d 887, 900 

(7th Cir. 2018) (stating that whether allegedly discriminatory 

conduct establishes a hostile work environment depends in 

part on whether the conduct was “humiliating”). 

Indeed, in appellate briefing, Alicea–Hernandez 

repeatedly described her claim as a hostile work environment 

claim. See Alicea–Hernandez, 320 F.3d 698, Br. of PlaintiffAppellant Gloria Alicea–Hernandez, 2002 WL 32172619, at 

**4, 9, 12, 14, 16 & 20. What is more, my colleagues 

acknowledge that Alicea–Hernandez asserted a constructive 

discharge claim. The “[c]reation of a hostile work 

environment is a necessary predicate to a hostile-environment 

constructive discharge case.” Pennsylvania State Police v. 

Suders, 542 U.S. 129, 149 (2004). Hence, my colleagues must 

recognize that by dismissing Alicea–Hernandez’s 

constructive discharge claim, we also dismissed her 

“necessary predicate” hostile work environment claim. 

Accepting that Alicea–Hernandez asserted a hostile work 

environment claim, I conclude that the majority has not 

convincingly addressed why we should resolve this case any 
38 No. 19-2142 

differently. We stated in Alicea–Hernandez that “[t]he 

‘ministerial exception’ applies without regard to the type of 

[employment discrimination] claims being bought.” 320 F.3d 

at 703. My colleagues interpret that statement in context to 

mean only that the ministerial exception applies without 

regard to whether the employer asserts a religious 

justification for the alleged discrimination. But even if my 

colleagues’ narrow interpretation of that statement were 

correct, that does not confront Alicea–Hernandez’s substantive 

holding, which required the dismissal of the plaintiff’s 

employment discrimination claims—including the hostile 

work environment claim—under the ministerial exception. 

The majority’s treatment of Alicea–Hernandez illustrates 

the unworkable task they thrust upon district courts. Despite 

Alicea–Hernandez’s own representations, the majority recharacterizes her claim as “indicat[ing] that she was challenging tangible employment actions” rather than a hostile work 

environment. But the majority provides only indeterminate 

lists of what constitutes a tangible employment action: “hiring, firing, promoting, deciding compensation, job assignments, and the like“ as well as “decisions about compensation 

and benefits, about working conditions, resources available to 

do the job, training, support from other staff and volunteers 

... the list could go on.” Beyond the indeterminacy of these 

lists, the majority does not address how allegations of intangible employment actions might indicate that the plaintiff has 

challenged the actions on the lists such that a district court 

must dismiss the minister’s entire employment discrimination claim, as we did in Alicea–Hernandez. 

To the extent the majority opinion is reconcilable with 

Alicea–Hernandez, I suggest the resulting rule creates a 
No. 19-2142 39 

perverse incentive for religious employers. Under the 

majority’s rule, if a minister alleges that her work 

environment was hostile without indicating that she is 

challenging a tangible employment action, then the 

ministerial exception does not protect the religious employer. 

But if the religious work environment becomes so intolerable 

that it prompts a constructive discharge, as in Alicea–

Hernandez, then the ministerial exception does protect the 

religious employer. 

Perhaps a minister could plead around the majority’s rule 

by being careful to avoid challenging a tangible employment 

action. However, there is no principled reason to allow such 

artful pleading, and the majority does not offer much guidance for religious employers, ministers, or courts to know 

what allegations of intangible employment actions indicate 

that the minister is instead challenging a tangible one. 

Based in part on Alicea–Hernandez, the Tenth Circuit has 

held that the ministerial exception bars hostile work environment claims. Skrzypczak v. Roman Catholic Diocese of Tulsa, 611 

F.3d 1238, 1245 (10th Cir. 2010). My colleagues rely heavily on 

two Ninth Circuit cases holding that the ministerial exception 

does not categorically bar ministers’ hostile work environment claims where the religious employer denies or disavows 

the conduct. See Elvig v. Calvin Pesbyterian Church, 375 F.3d 

951, 963 (9th Cir. 2004); see also Bollard v. California Province of 

the Soc’y of Jesus, 196 F.3d 940, 948 (9th Cir. 1999). But in Werft 

v. Desert Southwest Annual Conference of United Methodist 

Church, the Ninth Circuit subsequently affirmed the dismissal 

of a hostile work environment claim under the ministerial exception because the claim was “a part of the employment relationship between church and minister.” 377 F.3d 1099, 1103–
40 No. 19-2142 

04 (9th Cir. 2004) (per curiam). Here, as in Werft, the hostile 

work environment claims are a part of the ministerial employment relationship. 

Although my colleagues characterize the claim at issue in 

Werft as alleging tangible employment action, I find nothing 

in that opinion to suggest that the Ninth Circuit rejected the 

plaintiff’s characterization of his claim as a hostile work environment claim. Rather, the Ninth Circuit explained that “[t]he 

ministerial exception does not apply solely to the hiring and 

firing of ministers, but also relates to the broader relationship 

between an organized religious institution and its clergy, 

termed the ‘lifeblood’ of the religious institution.” Werft, 377 

F.3d at 1103 (quoting McClure v. Salvation Army, 460 F.2d 553, 

558–59 (5th Cir. 1972), and emphasizing that matters “touching” the ministerial employment relationship are protected). 

Indeed, it is the kind of parsing and recharacterizing of claims 

that the majority advances that has led the Tenth Circuit to 

conclude that a categorical approach “provides greater clarity 

in the exception’s application and avoids the kind of arbitrary 

and confusing application the Ninth Circuit’s approach has 

created.” Skrzypczak, 611 F.3d at 1245. As discussed above, 

however, I suggest one need look no further than our own 

precedent to decide this appeal. 

II. Protected Ministerial Employment Relationship 

There are good reasons to follow our holding in Alicea–

Hernandez that the ministerial exception bars employment 

discrimination claims without regard to the type of claim. As 

the Supreme Court recently explained, the “First Amendment 

protects the right of religious institutions ‘to decide for themselves, free from state interference, matters of church govern-
No. 19-2142 41 

ment as well as those of faith and doctrine.’” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2055 (2020) 

(quoting Kedroff v. Saint Nicholas Cathedral of Russian Orthodox 

Church in N. Am., 344 U.S. 94, 116 (1952)). A “church’s independence on matters ‘of faith and doctrine’ requires the authority to select, supervise, and if necessary, remove a minister without interference by secular authorities.” Our Lady of 

Guadalupe, 140 S. Ct. at 2060. 

Rooted in the religion clauses of the First Amendment, the 

ministerial exception therefore “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its 

ministers.” Hosanna–Tabor Evangelical Lutheran Church & Sch. 

v. E.E.O.C., 565 U.S. 171, 188 (2012) (collecting cases); see also, 

e.g., E.E.O.C. v. Catholic Univ. of Am., 83 F.3d 455, 461 (D.C. Cir. 

1996) (stating that the ministerial exception “precludes civil 

courts from adjudicating employment discrimination suits by 

ministers against the church or religious institution employing them”). A church must “not be constrained in its dealings 

with [ministers] by employment laws that would interfere 

with the church’s internal management, including antidiscrimination laws.” Tomic v. Catholic Diocese of Peoria, 442 F.3d 

1036, 1040 (7th Cir. 2006), abrogated in part on other grounds by 

Hosanna–Tabor, 565 U.S. at 195 n.4. 

The ministerial exception is an application of the church 

autonomy doctrine, which “prohibits civil court review of 

internal church disputes involving matters of faith, doctrine, 

church governance, and polity.” Bryce v. Episcopal Church in 

the Diocese of Colorado, 289 F.3d 648, 655 (10th Cir. 2002) (citing 

Kedroff, 344 U.S. at 116–17). The exception “continues a longstanding tradition that churches are to be free from 
42 No. 19-2142 

government interference in matters of church governance and 

administration.” Gellington v. Christian Methodist Episcopal 

Church, Inc., 203 F.3d 1299, 1304 (11th Cir. 2000). The 

“Constitution forbids us” from treading into “the internal 

management of a church.” Combs v. Cent. Texas Annual 

Conference of United Methodist Church, 173 F.3d 343, 350 (5th 

Cir. 1999). 

When assessing “employment discrimination claims by 

ministers against their church, secular authorities would necessarily intrude into church governance in a manner that 

would be inherently coercive, even if the alleged discrimination were purely nondoctrinal.” Tomic, 442 F.3d at 1039 (quoting Combs, 173 F.3d at 350). Hence, the ministerial exception 

should bar Demkovich’s claims notwithstanding whether the 

Church asserts a religious justification for the alleged conduct. The ministerial exception “precludes any inquiry whatsoever into the reasons behind a church’s ministerial employment decision.” Alicea–Hernandez, 320 F.3d at 703 (quoting 

E.E.O.C. v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 

801 (4th Cir. 2000)). 

A. Free Exercise Clause 

The application of employment discrimination laws “to 

the employment relationship existing between” the Church 

and Demkovich will “result in an encroachment by the state 

into an area of religious freedom which it is forbidden to enter 

by the principles of the free exercise clause of the First 

Amendment.” Alicea-Hernandez, 320 F.3d at 702–03 (quoting 

McClure, 460 F.2d at 560). The ministerial exception protects 

the Church’s right to the free exercise of religion by “ensur[ing] that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical’—is the 
No. 19-2142 43 

church’s alone.” Hosanna–Tabor, 565 U.S. at 194–95 (quoting 

Kedroff, 344 U.S. at 119). The Church’s “control over [its ministers] is an essential component of its freedom to speak in its 

own voice, both to its own members and to the outside 

world.” Hosanna–Tabor, 565 U.S. at 201 (Alito, J., joined by Kagan, J., concurring). Control of a minister necessarily includes 

the ability to supervise, manage, discipline, and communicate 

with the minister, including by telling the minister that his 

behavior does not conform with church doctrine and by instructing him to change his behavior. See Our Lady of Guadalupe, 140 S. Ct. at 2060 (stating that religious employers have 

authority to “supervise” ministers free from government interference). 

According to the majority, a religious employer presumably “is interested in maximizing the employee’s ability to perform his or her stated duties to further the organization’s objectives, not in permitting a supervisor to ‘control’ the employee through abuse that actively inhibits job performance 

and is beyond the scope of that supervisor’s own employment.” But courts are not equipped to say whether a religious 

employer’s communications with its ministers inhibit or improve their job performance, and it is not for courts to regulate 

how a church communicates with its ministers to further its 

religious objectives. Cf. Hernandez v. Comm'r of Internal Revenue, 490 U.S. 680, 699 (1989) (“It is not within the judicial ken 

to question the centrality of particular beliefs or practices to a 

faith, or the validity of particular litigants’ interpretations of 

those creeds.”). 

“[Q]uestions of church discipline and the composition of 

the church hierarchy are at the core of ecclesiastical concern.” 
44 No. 19-2142 

Serbian E. Orthodox Diocese for U.S. of Am. & Canada v. Milivojevich, 426 U.S. 696, 717 (1976). Courts “have no say over matters of religious governance.” Korte v. Sebelius, 735 F.3d 654, 

678 (7th Cir. 2013). Attempting “to regulate the relationship 

between” the Church and Demkovich will “infringe upon the 

church’s right to be the sole governing body of its ecclesiastical rules and religious doctrine.” Gellington, 203 F.3d at 1304. 

Beyond infringing on the Church’s free exercise rights in 

this case, allowing ministers to bring hostile work environment claims will “gravely infringe” on the rights of religious 

employers more generally “to select, manage, and discipline 

their clergy free from government control and scrutiny” by 

encouraging them to employ ministers that lessen their exposure to liability rather than those that best “further [their] religious objective[s].” Elvig v. Calvin Presbyterian Church, 397 

F.3d 790, 803–04 (9th Cir. 2005) (Kleinfeld, J., dissenting from 

denial of rehearing en banc); see also Rayburn v. Gen. Conference 

of Seventh-Day Adventists, 772 F.2d 1164, 1171 (4th Cir. 1985) 

(“There is the danger that churches, wary of [Equal Employment Opportunity Commission] 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.”). Allowing 

Demkovich’s employment discrimination claims to go forward will therefore not only violate the Church’s free exercise 

rights, but it threatens the free exercise rights of other religious employers, as well. 

B. Establishment Clause 

Applying employment discrimination statutes “to the employment relationship between” the Church and Demkovich 
No. 19-2142 45 

will also “involve ‘excessive government entanglement with 

religion’ as prohibited by the Establishment Clause of the 

First Amendment.” Gellington, 203 F.3d at 1304 (quoting 

Lemon v. Kurtzman, 403 U.S. 602, 613 (1971)). The majority 

opinion essentially erases the distinction between ministers 

and non-ministers as to hostile work environment claims. My 

colleagues argue that “[p]rocedural entanglement is not necessarily any more a concern with hostile environment claims 

by ministerial employees than with claims by non-ministerial 

employees.” Additionally, they contend that the conduct alleged here “constituted abuse under neutral, generally applicable standards that would be enforceable on behalf of a nonministerial employee.” But unlike the relationship between a 

non-minister and a church, the 

relationship between an organized church and 

its ministers is its lifeblood. The minister is the 

chief instrument by which the church seeks to 

fulfill its purpose. Matters touching this relationship must necessarily be recognized as of 

prime ecclesiastical concern. 

McClure, 460 F.2d at 558–59. By treating Demkovich’s employment relationship with the Church the same as that between a non-minister and a religious employer, the majority 

opinion “misses the point of the ministerial exception,” which 

is to “ensure[] that the authority to select and control who will 

minister to the faithful—a matter ‘strictly ecclesiastical’—is 

the church’s alone.” Hosanna–Tabor, 565 U.S. at 194–95 (quoting Kedroff, 344 U.S. at 119). 

“The types of investigations a court would be required to 

conduct in deciding” Demkovich’s claims “‘could only pro-
46 No. 19-2142 

duce by their coercive effect the very opposite of that separation of church and State contemplated by the First Amendment.’” Skrzypczak, 611 F.3d at 1245 (quoting McClure, 460 

F.2d at 560) (brackets omitted). “[T]he very process of inquiry” into his employment discrimination claims will violate 

the First Amendment. N.L.R.B. v. Catholic Bishop of Chicago, 

440 U.S. 490, 502 (1979). 

In my view, my colleagues do not fully account for the degree of entanglement with religion inherent in adjudicating 

Demkovich’s hostile work environment claims. Indeed, the 

risk of excessive religious entanglement is arguably even 

greater when ministers base their employment discrimination 

claims on intangible rather than tangible employment actions. 

For intangible employment actions to be actionable under a 

hostile work environment theory, the harassment must have 

been “so severe or pervasive as to alter the conditions of employment.” Johnson, 892 F.3d at 900. Courts analyze hostile 

work environment claims based “on all the circumstances, including 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.” E.E.O.C. v. 

Costco Wholesale Corp., 903 F.3d 618, 625 (7th Cir. 2018) (citation and internal quotation marks omitted). An affirmative 

defense is available by showing that “the employer exercised 

reasonable care to prevent and correct” the harassment and 

that the plaintiff “unreasonably failed to take advantage of 

any preventive or corrective opportunities provided by the 

employer or to avoid harm otherwise.” Burlington Indus., Inc. 

v. Ellerth, 524 U.S. 742, 765 (1998); see also Faragher v. City of 

Boca Raton, 524 U.S. 775, 807 (1998) (same). 
No. 19-2142 47 

Consequently, to assess Demkovich’s employment discrimination claims, the district court will need to determine 

whether his religious work environment was appropriate. Its 

inquiry will necessarily delve into Demkovich’s terms and 

conditions of employment and matters of the Church’s governance and administration, including its employment relationship with Demkovich, its control over Demkovich, and 

Demkovich’s workplace conditions. The court will have to decide questions including: whether the alleged harassment was 

so severe or pervasive as to alter Demkovich’s conditions of 

ministerial employment; whether the Church took reasonable 

action to prevent or correct the alleged harassment; what the 

Church’s preventive or corrective processes were; and 

whether Demkovich unreasonably declined to avail himself 

of any of those preventive or corrective processes. To investigate and evaluate the merits of the claims and the potential 

affirmative defense, 

every step the Church took to respond and react 

to [Demkovich’s] claims will be reviewed by the 

district court to determine whether it was reasonable. Such an inquiry into whether the 

Church exercised “reasonable care” will involve, by necessity, penetrating discovery and 

microscopic examination by litigation of the 

Church’s disciplinary procedures and subsequent responsive decisions. 

Elvig, 375 F.3d at 973 (Trott, J., dissenting). Allowing Demkovich’s employment discrimination claims to overcome the 

ministerial exception will “involve gross substantive and procedural entanglement with the Church’s core functions, its 
48 No. 19-2142 

polity, and its autonomy,” which is “precisely what the ministerial exception was designed to cover and to prevent.” Id.

at 976. 

III. Other Causes of Action 

Holding that Demkovich’s employment discrimination 

claims must be dismissed would not give religious employers 

the license to commit the “highly disturbing” acts that my colleagues imply it would. There are remedies for such acts, but 

federal employment law does not afford them. The ministerial exception does not confer general immunity from a minister’s tort claims or from criminal laws. See, e.g., Tomic, 442 

F.3d at 1040 (“A church could not subject its clergy to corporal 

punishment or require them to commit criminal acts.”). But 

describing hostile work environment claims in general as “essentially tortious in nature” should not transform statutory 

Title VII or ADA hostile work environment claims into torts. 

See Ford v. Marion Cty. Sheriff’s Office, 942 F.3d 839, 852 (7th 

Cir. 2019) (recognizing that hostile work environment claims 

are based on Title VII and the ADA). 

There is no suggestion that the conduct at issue here—

offensive and derogatory comments—gave rise to any claim 

other than the employment discrimination claims arising 

directly out of the protected ministerial employment 

relationship. Torts are conceptually distinct because liability 

for a tort generally does not accrue directly from a ministerial 

relationship. Demkovich’s employment discrimination 

claims, on the other hand, unavoidably involve religious 

matters at the core of that relationship. 
No. 19-2142 49 

IV. Conclusion 

In Alicea–Hernandez, we laid out a workable approach that 

remains faithful to the religion clauses of the First Amendment: The ministerial exception bars employment discrimination claims brought by ministers “without regard to the type 

of claims being brought.” 320 F.3d at 703. I would follow that 

approach here by holding that the ministerial exception bars 

each of Demkovich’s employment discrimination claims. 

With respect, I dissent.