The ministerial exception strikes again

An emerging trend in the area of employment discrimination law is the "ministerial exception," which holds that the Constitution prohibits certain employment discrimination lawsuits by "ministers" against their religious employers. That doctrine quashes a racial and religious discrimination lawsuit against New York Methodist Hospital.

The case is Penn v. New York Methodist Hospital, issued on March 7. The Supreme Court endorsed the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. 171 (2012), and the Second Circuit applied that ruling for the first time in an extended way in Fratello v. Archdiocese of New York, 863 F.3d 190 (2d Cir. 2017). The point is that the courts are not permitted to second-guess the hiring and firing decisions of religious entities when it comes to employees whose job duties take on ministerial functions, even if their formal job title is not minister. So, in Fratello, the case was dismissed under the ministerial exception because the plaintiff was the principal of a religious school and took on some religious duties in managing the students.

In this case, while the plaintiff was a duty chaplain, the focus is on the employer: whether the New York Methodist Hospital can invoke the ministerial exception. As the hospital's name would suggest, it originally operated as an explicitly religious institution. That is no longer the case, although "vestiges of NYMH's religious heritage remain, as "its Methodist influence can still be seen in the hospital," which "has retained significant aspects of its religious heritage" by, for example, telling employees during orientation that "patients are human beings who are created in the image of God." The hospital's Department of Pastoral Care endeavors to provide an "ecumenical program of pastoral care" to patients and to "see that the needs of the whole person -- mind and spirit as well as body -- are met." The Court of Appeals (Hall and Bolden [D.J.] with Droney in dissent) concludes:

While a close question, NYMH because of its history and continuing purpose, through its Department of Pastoral Care, is a “religious group,” and since Mr. Penn’s role within the Department of Pastoral Care was to provide religious care to the hospital’s patients and religious care only, the ministerial exception doctrine should be applied. Once applied, its application warrants this lawsuit’s dismissal.

 For starters, "Both before and after Hosanna Tabor, other circuits have applied the ministerial exception in cases involving 'religiously affiliated entit[ies],' whose “mission[s are] marked by clear or obvious religious characteristics.” And, "Courts have also allowed hospitals to invoke the ministerial exception doctrine in employment suits from pastoral staff members." In the end,

The Department of Pastoral Care required chaplains, like Mr. Penn, to distribute Bibles, perform religious rituals and organize and conduct religious services, including Easter services and memorial services. While NYMH may have shed significant aspects of its religious identity by amending its Certificate of Incorporation, the hospital’s Department of Pastoral Care has retained a critical aspect of that religious identity in order to provide religious services to its patients. These services, while not limited to those who are Methodist, are indisputably religious.