Sunday, March 11, 2018

Penn v. N.Y. Methodist Hospital: Does the ministerial exception apply even when the plaintiff does not personify the defendant's religious beliefs?

In Penn v. New York Methodist Hospital, 16-474-cv (Mar. 7, 2018), the Second Circuit held that Marlon Penn's claims of race and religious discrimination and retaliation were barred by the ministerial exception, which limits the application of civil rights laws to prevent conflicts with the First Amendment's religion clauses. This decision is notable because, rather than focusing on the usual question of whether the plaintiff, a hospital chaplain, could be considered a minister, it focused on whether the defendant could be considered a religious group. The principal disagreement between the majority and the dissent was whether the exception applied where even if the defendant as a whole could not be considered a religious group, the department in which Penn had worked, the Department of Pastoral Care, could be considered a religious group.

Although I agree with the dissent that the ministerial exception did not apply, I don't think it's because the defendant as a whole did not qualify as a religious group. There was no dispute that Penn's position was religious in nature, so it's not surprising that the judges focused on whether the defendant was sufficiently religious. This analysis, however, seems to overlook another crucial aspect of the ministerial exception. To my mind, not only must the plaintiff be a "minister" and the defendant a "religious group," there also must be something akin to a minister-church relationship between them. As explained by the Supreme Court in Hosanna Tabor Evangelical Lutheran Church & School v. EEOC:
The members of a religious group put their faith in the hands of their ministers. 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. By 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. According 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.
The role of chaplains in the Department of Pastoral Care is to minister to the religious needs of hospital patients and their families. As noted by the dissent, none of the full-time chaplains in the Department of Pastoral Care were Methodist. To be sure, the defendant may have had religious reasons for objecting to Penn's job performance, but it also could have religious reasons for objecting to the job performance of employees whose work is not of a religious nature, and the ministerial exception clearly would not apply to the latter. Here, although Penn's position and the department in which he worked were religious, it does not appear that applying the EEO laws to Penn's position would infringe on the defendant's "right to shape its own faith and mission through its appointments." If an employer is a Methodist religious organization, then the ministerial exception should logically be limited to individuals whose job responsibilities require them to "personify" the organization's Methodist beliefs, and should not extend to employees whose positions merely happen to be of a religious nature.

Contrary to the dissent, however, I would think that the ministerial exception can apply even if the defendant as a whole is not a religious group. For example, if a hospital department hires exclusively Methodist chaplains to personify the department's Methodist beliefs, I see no reason that the exception should not apply merely because the hospital as a whole is predominantly secular.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.