The last EthicsWalk discussed “ethical dilemmas,” those instances where one must choose between good but competing moral values. This EthicsWalk examines an ethical dilemma directly affecting ministers.[1] The potentially conflicting values are religious freedom and justice in employment relationships.

Religious freedom, meaning government non-interference in the religious life of citizens, is guaranteed by the Free Exercise and Establishment clauses of the First Amendment.[ 2] The decisions of religious leaders on “matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law,” [3] are not open to secular court scrutiny or civil legislation. This includes decisions affecting the paid or volunteer work of ministers.

Justice in employment relationships is promoted by Title VII of the Civil Rights Act of 1967 as amended. It applies to public and private work places with fifteen or more regular, full time employees.

First Amendment constraints exempt religious bodies from Title VII. How they hire, fire or otherwise relate to employees with “ministerial” duties is beyond the reach of civil law.[4] The WalMart clerk is better protected against work place sexual or racial harassment than is the chaplain at a Baptist Hospital,[5] the seminary theology professor [6] or the associate rabbi.[7]

Clergy and lay ministers have no recourse to legal action if their “civil” rights are violated in their work with religious institutions. Only the religious body can enforce rules and remedies. There is an ethical duty to enforce policies prohibiting discriminatory behavior by or towards all employees: those with ministerial duties and those without. (The latter remain covered by Title VII in most instances). Secular policies provide a foundation; the religious body can articulate higher standards in its codes and procedures.

Some idealists mistakenly believe that religious bodies are free from behaviors addressed by Title VII. In a 1993 survey of women rabbis, 70% reported being sexually harassed during their career. Twenty-five percent experienced harassment monthly.[8] Figures are similar for Protestant clergy women with most problems occurring during seminary, field placements, and pulpit searches.

Public and judicial trust in religious institutions “doing what’s right” is eroding. Courts reflect societal changes, and their resistance to claims involving ministers or religious institutions is softening. The child sex abuse scandals exposed religious leaders more intent on protecting their own than the vulnerable.

This July the Ninth Circuit overturned a lower court’s routine dismissal of Title VII sexual harassment claims by an associate minister against her church and senior pastor. While upholding traditional First Amendment protections, the Court distinguished aspects of the claim that could proceed without implicating constitutional prohibitions. The court notes, “These issues concern the Defendants’ actions, not their beliefs.” [9] “The First Amendment should not require that churches become sanctuaries for sexual harassment by those who act outside of church doctrine.”[10]

Courts appear ready to find mechanisms to require compliance with minimal standards for treating employees and congregants with respect. Perhaps religious bodies should welcome, rather than resist, secular review when moral failure is alleged.

I encourage you to respond to this column.

The next EthicsWalk notes that harassment policies also protect the people served by ministers and discusses why such protection is an ethical imperative.

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