Judge dismisses federal sexual harassment claim against religious order

Tuesday, June 16, 1998

A federal court has dismissed a sexual harassment suit against two Jesuit priests and officials of three Society of Jesus provinces because the First Amendment bars intrusion into the methods the Roman Catholic religious order uses to determine how priests are ordained.

Northern California U.S. District Judge Susan Illston in late May dismissed the federal sexual harassment claim after concluding that both a religious exception to the law and the establishment clause of the First Amendment prevented the court from becoming involved in the dispute.

The Society of Jesus, or the Jesuits, is a Catholic religious order founded by Saint Ignatius of Loyola in 1540. In the United States there are 10 provinces of the Society of Jesus.

From August 1988 to December 1996, John Bollard studied to become a priest in the Society of Jesus, in a process called “formation.”

For three years of his “formation,” Bollard taught at St. Ignatius College Preparatory School in California. In 1993 Bollard advanced to the position of “scholastic” and started studying at the Jesuit School of Theology in Berkeley. However, Bollard said the improper sexual conduct of his superiors forced him to leave the Society in December 1996.

Bollard then sued the Society under Title VII of the federal Civil Rights Act of 1964, claiming he had been sexually harassed by Society members from 1990 until leaving in 1996. Title VII was enacted by Congress to prevent private companies from discriminating against employees on the basis of race, color, religion, gender or national origin. Sexual harassment is a form of discrimination that Title VII bars.

Bollard claimed in his suit that he was sent “pornographic” birthday cards, was asked to go to “gay bars” and was brought into conversations of sexual acts by a couple of ordained Jesuit priests. Bollard said he complained about two such incidents to the chief administrator of the California province. The administrator took no action, Bollard's suit alleged.

Officials for the Society of Jesus asked the federal judge to dismiss the Title VII harassment claim because, to hear the claim, they said the court “would necessarily have to adjudicate issues touching on the relationship between the Society of Jesus and its clergy members, and thereby would unconstitutionally interfere with the church's autonomy.”

Judge Illston agreed with the Society officials and concluded that the First Amendment's free-exercise clause and establishment clause and a “ministerial exception” to Title VII prevented her from considering Bollard's claims of sexual harassment.

Illston first noted that in 1952 the U.S. Supreme Court ruled that the free-exercise clause protects the power of religious organizations to “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

Next, Illston said that a “ministerial exception,” so named because it refers to the fulfilling the function of a minister, to Title VII required the suit's dismissal.

“The ministerial exception [to Title VII] is a well-established compromise between two extremely important interests—the interest in eradicating discrimination in employment and the right of a church to manage its religious affairs free from governmental interference,” Illston wrote. The fact that Bollard “was engaged in the Formation process rather than already ordained does not make the case less deserving of the First Amendment exception to Title VII.”

Congress included the “ministerial exception” to Title VII because of the establishment clause's prohibition on church-state entanglement, Illston said.

If Bollard's Title VII claim “were allowed to proceed, the Court would thus be required to allow discovery of and arrive at an ultimate decision on the 'conditions' of Formation, as well as whether the Society was 'reasonable' in its supervision of its priests,” Ellison wrote. “Such areas of inquiry would put the Court in the position of second-guessing the religious aspects of the relationship between a church and its clergy.”

Mary Patricia Hough, a San Francisco attorney and one of Bollard's lead counsels, said that she is contemplating an appeal.

“I think the judge's opinion was thoughtful, but I don't believe the exception should apply to conduct that arises to the level of a crime,” Hough said. “Many cases of sexual harassment involve conduct that is criminal or comes close to being criminal.”

Hough said that Title VII sexual harassment claims are relatively new causes of action and therefore have produced few court decisions regarding the law's potential conflict with religious organizations.

An appellate court decision out of Minnesota held that the “ministerial exception” should not exist for claims of sexual harassment, as opposed to sex discrimination, Hough said.

Illston dismissed that decision, saying the Minnesota court narrowly construed the exception.

Hough said she believed that eventually Title VII claims would be permitted to proceed even against religious institutions.

“We think that Title VII is a law of general applicability and that the public is not interested in permitting sexual conduct in an employment relationship even if the relationship is of a religious nature,” Hough said.