When the Minister Blows the Whistle: CEPA and the Ministerial ExceptionDecember 4, 2017 – Articles New Jersey Law Journal
The New Jersey Conscientious Employee Protection Act (CEPA) is one of the strongest whistleblower laws in the country. Notwithstanding the law’s strength, it remains unanswered whether CEPA claims against religious employers are barred by the ministerial exception. This common law doctrine holds that religious employers should be free from government regulation in making employment decisions concerning ministerial staff because such determinations necessarily have a theological underpinning. The doctrine accordingly bars claims by ministers under Title VII of the Civil Rights Act of 1964 (Title VII) and the New Jersey Law Against Discrimination (LAD), for example. But how should courts address CEPA claims asserted by ministers who blow the whistle on their employers?
The New Jersey CEPA
The New Jersey Legislature enacted CEPA to “protect and encourage employees to report illegal or unethical workplace activities and to discourage public and private sector employers from engaging in such conduct.” Dzwonar v. McDevitt, 177 N.J. 451, 461 (2003) (citing Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 431 (1994)). The statute is viewed “as a reaffirmation of this State’s repugnance to an employer’s retaliation against an employee who has done nothing more than assert statutory rights and protections and a recognition by the Legislature of a preexisting common-law tort cause of action for such retaliatory discharge.” Lepore v. National Tool & Mfg. Co., 115 N.J. 226, 228 (1989) (internal quotation omitted). No published case has yet tested the ministerial exception against these robust protections.
The Ministerial Exception
New Jersey courts have recognized that the First Amendment bars review of disputes over religious doctrine or ecclesiastical polity. See Elmora Hebrew Center v. Fishman, 125 N.J. 404, 413 (1991) (citing Watson v. Jones, 80 U.S. 679, 728–30 (1871); Chavis v. Rowe, 93 N.J. 103, 105 (1983)). In ruling on the ministerial exception,the court inPetruska v. Gannon Univ., 462 F.3d 294 (3d Cir. 2006) dismissed a university chaplain’s gender discrimination and retaliation claims against a Catholic college under Title VII. In doing so, the court found that the ministerial exception “operates to bar any claim, the resolution of which would limit a religious institution’s right to select who will perform particular spiritual functions.” Petruska,462 F.3d at 307. The plaintiff’s claims challenged the college’s decision to restructure — a decision, the Third Circuit held, that was inherently based on “who would perform spiritual functions and about how those functions would be divided.” Id. at 307-308. Applying Title VII would violate the Free Exercise Clause and, as such, the ministerial exception compelled dismissal.
In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012), the U.S. Supreme Court adopted the ministerial exception for the first time. There, the Equal Employment Opportunity Commission brought an action alleging retaliation under the Americans with Disabilities Act (ADA) on behalf of a “called teacher” (and a commissioned minister) at a Lutheran school, whose employment was terminated due to insubordination for refusing to comply with a school directive. Hosanna-Tabor, 132 S. Ct. at 700. The plaintiff’s job duties were unquestionably ministerial — propounding the Church’s message to lead others to “Christian maturity” and teach faithfully about the “Word of God, the Sacred Scriptures” as ordained by the Church. Id. at 708. In dismissing the lawsuit, the U.S. Supreme Court held that a “ministerial exception” grounded in the Establishment and Free Exercise Clauses of the First Amendment bars suits brought on behalf of ministers against their churches claiming termination in violation of employment discrimination laws. Id.at 707.
The holding was limited to challenges by a minister in “an employment discrimination suit.” Id. at 710. Notably, the court held that “[w]e express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.” Id. The rationale underlying the decision, however, may be extended to whistleblower claims, including those brought under CEPA.
Whistleblower Law and the Ministerial Exception
Only two courts — neither from New Jersey — have reported on the application of whistleblower statutes under the ministerial exception. Both are instructive.
In Archdiocese of Miami v. Minagorri, 954 So. 2d 640 (Fla. Ct. App. 2007), reh’g denied, cert. denied, 555 U.S. 1102 (2009), a principal of a Catholic school was terminated after complaining about being assaulted, battered and verbally threatened by her immediate supervisor. Plaintiff filed an action under the Florida Private Sector Whistleblower Act, which protects employees from retaliatory action for objecting to or refusing to participate in activities, policies or practices that are in violation of a law, rule, or regulation. Citing to a line of cases where courts dismissed, pursuant to the ministerial exception, claims under Title VII, the ADA and the Age Discrimination in Employment Act, as well as state common law and statutory anti-retaliation laws, the court saw “no reason why the ministerial exception should not be applied” to the statutory whistleblower claim. Id. at 643.
In Weishuhn v. Lansing Catholic Diocese, 287 Mich. App. 211, 213 (2010), a Catholic elementary school teacher filed an action against her employer under, inter alia, the Michigan Whistleblowers’ Protection Act (WPA), after her employment contract was not renewed. Having already dismissed the plaintiff’s state discrimination law claim under the Michigan Civil Rights Act (CRA), the court explained that both the WPA and CRA, while distinct statutes, “have as a common purpose the prevention of discrimination in employment on the basis of statutorily recognized facts rooted in public policy” — similar to the analogy between CEPA and LAD. Id. at 221-222. In dismissing the WPA claim, the court relied upon a series of decisions including Petruska and Minagorri that dismissed employment claims under the ministerial exception. As the court explained, “termination of a ministerial employee by a religious institution is an absolutely protected action under the First Amendment, regardless of the reason for doing so.” Id. at 227 (citing Petruska, 462 F.3d at 307, 309).
The Ministerial Exception Should Trump CEPA
While no reported New Jersey decision has addressed this specific issue, the ministerial exception should similarly extend to ministers who blow the whistle on their religious employers under CEPA. Like discrimination laws, CEPA regulates the employment relationship and, therefore, courts cannot resolve CEPA claims without disturbing the inviolable divide between church and state. To do so would require courts to examine the rationale behind theologically based personnel decisions and thus unconstitutionally encroach upon religious doctrine. As the U.S. Supreme Court has explained, the ministerial exception “ensures that the authority to select and control who will minister the faithful — a matter ‘strictly ecclesiastical’ — is the church’s alone.” Hosanna-Tabor, 565 U.S. at 195 (citation omitted).
Notwithstanding its important policy functions, CEPA should not hold a special place vis-à-vis the ministerial exception simply due to the law’s remedial purposes and robust provisions. LAD too has bold public policy goals including, as opined by the New Jersey Supreme Court, “to eradicate the cancer of discrimination.” Jackson v. Concord Co., 54 N.J. 113, 124 (1969). Nonetheless, LAD, like its federal corollary Title VII, is also subject to the ministerial exception.
The ministerial exception does not relieve religious institutions from criminal liability or cooperating with law enforcement. Neither does the doctrine exempt employees of religious institutions from their obligations under the New Jersey mandatory reporting statute to report child abuse or neglect (even though the ministerial exception would likely trump the immunity from adverse employment actions afforded to those who make “good faith” allegations under the statute). N.J.S.A. § 9:6-8.13. As the court held in Weishun, “Our ruling does not reduce or immunize statutory reporters who are ministerial employees of religious institutions from the consequences if they fail to meet their mandatory reporting duties because they fear retaliation for which there would be no civil recourse.” 287 Mich. App. at 225.
In short, the ministerial exception is narrow — it only applies to claims that challenge a religious institution’s discretion as to who will lead the flock. See Petruska, 462 F.3d at 305. Constitutional rights must be respected, even in the face of noble legislative goals like those embodied in CEPA. See Weishuhn,287 Mich. App. at 225 (“Although we recognize the unfairness of the position, we lack the power to alter the legislative reporting requirements and the Legislature cannot trump the United States Constitution.”). Such an interpretation is consistent with the way courts have applied the doctrine to other employment claims brought by persons charged with fulfilling an institution’s theological mission, and should also be followed by courts in New Jersey.
Extending the ministerial exception to CEPA claims would consist of a two-part analysis. At the outset, courts should confirm that the claim at issue is actually brought under CEPA rather than a separate and independent cause of action exempt from the ministerial exception, such as breach of contract or tortious conduct. If a court determines that a CEPA claim has been asserted, courts should ask whether the whistleblower’s duties constitute those of a “minister” (e.g., the performance of spiritual functions). Where it is determined that a minister has brought a claim under CEPA, courts in New Jersey, like those in sister jurisdictions, could then apply the ministerial exception doctrine to immunize religious employers from liability for any personnel actions taken against the complainant.
Reprinted with permission from the December 4 issue of the New Jersey Law Journal. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.