Hostile work environment case against Buffalo Archdiocese may proceed

This case raises an odd procedural question, but the underlying issue is interesting. The plaintiff brought a charge of discrimination with the State Division of Human Rights, claiming religious discrimination. The employer wants to assert the "ministerial exception," which allows certain religious institutions to avoid litigation if the plaintiff's job duties were "ministerial" in nature and required them to preach the gospel in some way. Does the defendant have to raise the ministerial exception in its Answer to assert it in litigation?

The case is Ibhawa v. New York State Division of Human Rights, issued by the New York Court of Appeals on November 26. The real defendant is not the NYSDHR but Plaintiff's former employer, the Archdiocese in Buffalo, which fired him after it subjected him to racial slurs. The defendant did not raise the ministerial defense in its Answer to the charge of discrimination. That omission would not matter if the ministerial defense were a jurisdictional defense, which the defendant can raise at any time. You cannot waive a jurisdictional defense. 

This case reaches the New York State Court of Appeals to resolve this issue. The NYSDHR ruled in favor of the former employer and dismissed the case, and the Fourth Department agreed with that determination. But that was wrong, the Court of Appeals holds, because the Supreme Court cases that adopted the ministerial exception have characterized it as an affirmative defense and not a jurisdictional defense. That means you have to raise this defense in the Answer if you want to raise it. The case is therefore reinstated and plaintiff can litigate his claims.

The larger issue is whether the ministerial exception applies when the plaintiff asserts a hostile work environment claim. This defense always applies when the employer wants to fire an employee whose job, for example, involves teaching students about religious principles. The courts do not want to tell religious employers who can take on these positions. This concern is rooted in the religious freedom clauses under the First Amendment and the principle that religious employers have the right to determine who will spread the gospel, even if the plaintiff insists he was fired for reasons that have nothing to do with spreading the gospel. But courts have disagreed on whether the ministerial exception applies when the plaintiff claims he was subjected to racial or sexual harassment. In those cases, the employer is not asserting the right to employ religious messengers of its choice. In that circumstance, some courts have held, the ministerial exception does not apply. New York courts have not definitely resolved this issue, and it is not resolved in this case.