In this post-Christian, post- Hosanna-Tabor society a very important question emerges: Where does religious freedom begin and end for religious organizations and their employees? Do employees who work for ministries have any civil rights? Do their employment contracts count? Can they be lied about — with impunity — on corporate microphones? Can ministers be discriminated against in a way that is demonstrably unbiblical?
Answer: It depends on where you live.
Let me nuance this a bit. No matter where you live, religious employers can discriminate against you, even if they have a policy that says they won’t.
But at least in two states they will have to honor your contract.
In Kentucky, employment contracts are legally enforceable as the Kirby court made plain in 2014. Jimmy Kirby, an African American, sued Lexington Theological Seminary for racial discrimination and for breaching his contract for tenure. Kirby lost at the trial court level, and he told me he lost “in eight minutes” at the appellate level, but won 7-0 at the Kentucky Supreme Court after Harvard Law School trained, Amos Jones, stepped in to argue his case at the highest level. To be clear, Kirby won his contract claims. He lost on his discrimination claims.
This past Tuesday, September 18th, 2018, the Third District Court of Appeals in Sacramento published an opinion in Sumner v. Simpson that establishes the legal viability of employment contracts in religious corporations in California. That means employment contracts at institutions such as Fuller Seminary, Biola University, Simpson University, Azusa Pacific University, World Vision International, denominational headquarters, local churches, etc. are real contracts. In California it is still illegal for a Christian corporation to break promises it makes through its employment contracts.
Good news: Religious employers in California cannot willy-nilly treat contracted employees as at-will employees without paying a steep price.
Bad news: The Appellate Court dismissed the tort claims which means that California courts (at least so far) are not going to stop religious corporations from acting tortiously. If you are legally seen as a “minister,” your religious employer in California can invade your privacy, treat you with malice, falsely accuse you, defame you publicly, and probably get away with it.
While I am heartened to see that contracts count and that religious organizations are legally accountable for the contracts they enter into, I shudder at the thought of more employees suffering from tortious conduct wrought by rogue religious leaders. It just is not right for board members and officers in religious organizations to abuse their institutional power without having any accountability or legal ramifications for doing so.