Federal appeals court: Harassment claim can proceed against religious order
Yesterday a three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously overturned a district judge's 1998 decision that several Jesuit priests and officials of three Society of Jesus provinces could not be sued under Title VII of the Civil Rights Act of 1964 by a former student. Title VII was enacted by Congress to prevent employers from discriminating against employees on the basis of race, color, religion, gender or national origin. Sexual harassment is gender discrimination that is outlawed by Title VII.
In 1997, John Bollard, a former seminarian, sued the California Province of the Society of Jesus and his Jesuit superiors at colleges in San Francisco and Berkeley. Bollard argued that between 1990 and 1996 he was sexually harassed by his superiors and that no one within the order took steps to investigate or correct the situation. According to Bollard, the harassment included invitations to gay bars and unwanted advances. Bollard said the Jesuits had violated his civil rights protected by Title VII and sought monetary damages from the Roman Catholic religious order that was founded in 1540.
Officials for the Jesuits, however, sought dismissal of Bollard's claim, saying First Amendment religious liberties protected the order from judicial scrutiny. Attorneys for the Jesuits said in court papers that allowing the suit to proceed would interfere with 'the core religious act – the selection, assessment, retention and discipline' of clergy.
Last year, U.S. District Judge Susan Illston agreed with the Jesuits, citing a string of federal decisions that said Title VII did not apply to the employment relationships between religious institutions and their ministers. Illston also said that the establishment clause of the First Amendment prevented the court from becoming involved in the situation between Bollard and the Jesuit order.
Writing for the 9th Circuit, Judge William A. Fletcher overturned Illston's ruling. According to the 9th Circuit, allowing Bollard's suit to proceed would not substantially interfere with the religious order's doctrine or practices.
Fletcher first noted that other federal courts had ruled that the religious-liberty clauses of the First Amendment require a narrower reading of Title VII when dealing with a religious organization's employment decisions. 'These First Amendment restrictions on Title VII provide important protections to churches that seek to choose their representatives free from government interference and according to the dictates of faith and conscience.' Fletcher said the Constitution creates a 'ministerial exception' to Title VII to protect the autonomy of religious institutions.
But Bollard did not complain that the Jesuit order wrongfully failed to ordain him, he merely asserted that he was forced to leave the order because of sexual harassment, Fletcher said. Determining whether Bollard was subject to unlawful harassment by a religious order would not amount to a constitutional violation and Bollard's claim could not be barred by Title VII, the 9th Circuit concluded.
'Because the Jesuit order doctrinally disavows the harassment, the danger that the application of Title VII in this case will interfere with its religious faith or doctrine is particularly low,' Fletcher wrote for the court in Bollard v. The California Province of the Society of Jesus. 'And while we recognize that applying any laws to religious institutions necessarily interferes with the unfettered autonomy churches would otherwise enjoy, this sort of generalized and diffuse concern for church autonomy … does not exempt them from the operation of secular laws.
'Otherwise, churches would be free from all of the secular legal obligations that currently and routinely apply to them,' Fletcher continued. 'For these reasons, we do not think that applying Title VII in the circumstances of this case will have an unconstitutional impact on the free exercise of the Jesuits' religious beliefs.'
Fletcher also dismissed the Jesuits' argument and Illston's ruling that the establishment clause prevented government scrutiny of the situation. According to Illston, applying Title VII in Bollard's situation would foster an impermissible government entanglement with religion.
'The issue in the case is whether Bollard was subjected to sex-based harassment by his superiors that was sufficiently severe or pervasive as to be actionable under Title VII,' Fletcher wrote. 'The Jesuit order may assert as an affirmative defense that it exercised reasonable care to prevent and correct the harassment, and that Bollard failed to take advantage of these opportunities to avoid or limit harm. Nothing in the character of this defense will require a jury to evaluate religious doctrine or the reasonableness of the religious practices followed within the Jesuit order. Instead, the jury must make secular judgments about the nature and severity of the harassment and what measures, if any, were taken by the Jesuits to prevent or correct it.'
Pat Schiltz, a Notre Dame Law School professor, called the 9th Circuit's ruling 'extraordinarily bad.'
'The rationale most heavily relied upon by Judge Fletcher was the fact that the Jesuits did not claim that their religious beliefs compelled them to sexually harass Bollard, and therefore adjudicating Bollard's claims will not burden the order's religious freedom,' Schiltz said. 'This is a ridiculous argument. Churches virtually never claim that their religion compels them to discriminate on the basis of race, and yet courts have almost universally dismissed racial discrimination cases brought by ministers against churches because the very process of inquiry into the reasons for the church's action burdens religious freedom and creates entanglement.'
Last February, the 5th U.S. Circuit Court of Appeals ruled that a Baptist minister in Texas could not proceed with her Title VII claim against church officials because of the First Amendment. In Combs v. The Central Texas Annual Conference of the United Methodist Church, the Rev. Pamela Combs claimed that her superiors unlawfully fired her after she returned from an extended leave due to pregnancy. In dismissing Combs' Title VII claim, the 5th Circuit said it could not see 'how the federal judiciary could determine whether an employment decision concerning a minister was based on legitimate or illegitimate grounds without inserting ourselves into a realm where the Constitution forbids us to tread, the internal management of a church.'
Calls to Paul Gaspari, a San Francisco attorney for the Jesuits, were not returned. Although the 9th Circuit's decision permits Bollard's Title VII claim to proceed, the Jesuits could ask the entire 9th Circuit to review and reverse the panel decision.