In Henry v. Red Hill Evangelical Church of Tustin (filed December 9, 2011) 2011 DJDAR 17734, plaintiff was terminated from her employment with defendant because she and her boyfriend continued to live together and raise their child without being married. Her lawsuit asserted violations of the California Fair Employment and Housing Act [Govt. Code section 12900, et seq. (FEHA)] and Title VII of the federal 1964 Civil Rights Act, and termination in violation of public policy.
The trial court heard the bifurcated initial portion of the case pertaining to defendant’s defenses and found the “ministerial exception” applied precluding plaintiff from prevailing. The California Court of Appeal, Fourth Appellate District, Division Three, affirmed, determining defendant church is exempt under each of FEHA and Title VII, and that the ministerial exception additionally precludes plaintiff’s public policy cause of action.
Plaintiff Sara Henry was an at-will employee of defendant church’s pre-school (a part of the church’s ministry) for nearly 7 years, acting as a teacher and most recently performing the additional duties of “director.” She agreed in writing that her duties were “God-ordained” and pledged her “prayer, support, and assistance” to families participating in this “ministry” of the church. In addition to serving as a Christian role model, her responsibilities included teaching religion and secular subjects to pre-schoolers, conducting devotional times weekly and chapel services three to four times during the year, giving weekly tours to parents of prospective students emphasizing that Bible based Christian values were taught, and handling administrative chores.
Defendant terminated plaintiff’s employment several months after it learned of her living with her boyfriend and child without benefit of marriage. She was counseled prior to termination and acknowledged her living arrangement was contrary to the teachings of the Bible; that she intended to marry her boyfriend but did not know when.
The Court of Appeal found defendant was expressly exempt from FEHA as a “religious association or organization not organized for private profit.” (Govt. Code section 12926, subd. (d).) The court acknowledged that even where an employer is exempt under FEHA, the former employee may nonetheless recover for wrongful termination under Title VII where established public policy has been violated. Here, however, the church’s determination that she was violating a church precept did not under these circumstances offend any public policy. It was not a matter of her status, such as her sex or being an unwed mother, but rather because she chose to continue her conduct of living out of wedlock, where she could have chosen to either marry her boyfriend or live apart from him.
I note that the appellate court did address the ministerial exception, finding that plaintiff need not be a minister by occupation–that she qualified as a “spiritual leader.” This analysis however is more a side note rather than the controlling point, perhaps because the United States Supreme Court has currently pending the matter of Hosanna-Tabor Lutheran Evangelical Church v. E.E.O.C., a case presenting the question of whether a “called” teacher who teaches both secular and religious subjects at a sectarian school comes within the exception.
It appears to me that, even if the Hosanna-Tabor case results in a finding of no ministerial exception, these cases will continue to be fact-intensive, much as occurred here in Henry. It will all depend on whether the facts establish an exemption or exception to the statutory, constitutional and public policy rights of the employee.