Thursday, August 12, 2021
Rachel Casper, When Harassment at Work is Harassment at Church: Hostile Work Environments and the Ministerial Exception, University of Pennsylvania Journal of Law and Social Change
Sexual harassment and harassment on the basis of race, national origin, disability, and age are unlawful workplace practices; what does that mean when one’s workplace is a church? This article explores the ministerial exception’s application to hostile work environment claims. Can ministerial employees bring harassment claims against their religious employers? Put differently, can religious organizations harass their ministerial employees with impunity and without fear of legal recourse? Respecting both First Amendment interests and individual rights, this article appraises and takes seriously the constitutional purpose and necessity of the ministerial exception. Recognizing that importance, this article nevertheless rejects a categorical ban on ministerial employees’ hostile work environment claims. Instead, it proposes a case-by-case analysis of ministerial employees’ hostile work environment claims, granting all employees possible protection from harassment, regardless of who employs them. Religious freedom need not close the courthouse doors on hundreds of thousands of employees. Religious freedom and speculative First Amendment problems need not, and should not, undermine employees’ rights to dignified workplaces and protection from workplace harassment.