Where Faith Abides, Employees Have Few Rights

By DIANA B. HENRIQUES
October 9, 2006, New York Times

J. Jeffrey Heck, a lawyer in Mansfield, Ohio, usually sits on management’s side of the table. “The only employee cases I take are those that poke my buttons,” he said. “And this one really did.”

His client was a middle-aged novice training to become a nun in a Roman Catholic religious order in Toledo. She said she had been dismissed by the order after she became seriously ill — including a diagnosis of breast cancer.

In her complaint, the novice, Mary Rosati, said she had visited her doctor with her immediate supervisor and the mother superior. After the doctor explained her treatment options for breast cancer, the complaint continued, the mother superior announced: “We will have to let her go. I don’t think we can take care of her.”

Some months later Ms. Rosati was told that the mother superior and the order’s governing council had decided to dismiss her after concluding that “she was not called to our way of life,” according to the complaint. Along with her occupation and her home, she lost her health insurance, Mr. Heck said. Ms. Rosati, who still lacks health insurance but whose cancer is in remission, said she preferred not to discuss her experience because of her continuing love for the church.

In court filings, lawyers for the diocese denied her account of these events. If Ms. Rosati had worked for a business or almost any secular employer, she might have prevailed under the protections of the Americans With Disabilities Act. Instead, her complaint was dismissed in December 2002 by Judge James G. Carr of the United States District Court for the Northern District of Ohio, who decided that the order’s decision to dismiss her “was an ecclesiastical decision” that was “beyond the reach of the court” because “the First Amendment requires churches to be free from government interference in matters of church governance and administration.”

Legislators and regulators are not the only people in government who have drafted special rules for religious organizations. Judges, too, have carved out or preserved safe havens that shield religious employers of all faiths from most employee lawsuits, from laws protecting pensions and providing unemployment benefits, and from laws that give employees the right to form unions to negotiate with their employers.

Some of these exemptions are rooted in long traditions, while others have grown from court decisions over the last 15 years. Together, they are expanding the ability of religious organizations — especially religious schools — to manage their affairs with less interference from the government and their own employees.

The most sweeping of these judicial protections, and the one that confronted the novice nun in Toledo, is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years.

As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.

To do otherwise would be an intolerable government intrusion into employment relationships that courts have called “the lifeblood” of religious life and the bedrock of religious liberty, explained Edward R. McNicholas, co-chairman of the national religious institutions practice in the Washington, D.C., office of Sidley Austin, a law firm with some of the country’s largest religious organizations among its clients.

Judges have routinely invoked the ministerial exception to dismiss lawsuits against religious employers by rabbis, ministers, cantors, nuns and priests — those “whose ministry is a core expression of religious belief for that congregation,” as Mr. McNicholas put it.

But judges also have applied the exception to dismiss cases filed by the press secretary at a Roman Catholic church, a writer for The Christian Science Monitor, administrators at religious colleges, the disgruntled beneficiaries of a Lutheran pension fund, the overseer of the kosher kitchen at a Jewish nursing home and a co-founder of Focus on the Family, run by the conservative religious leader James C. Dobson. Court files show that some of these people were surprised to learn that their work had been considered a “core expression of religious belief” by their employer.

Religious employers have long been shielded from all complaints of religious discrimination by an exemption that was built into the Civil Rights Act of 1964 and expanded in 1972. That historic exemption allows them to give preference in hiring to candidates who share their faith. In recent years, some judges have also refused to interfere when religious groups have dismissed lesbians, unwed mothers and adulterous couples, even if they profess the same faith, because they have violated their employers’ religious codes.

A federal court decision has given religious broadcasters an exemption from some of the fair-hiring requirements of the Federal Communications Commission, even when they are hiring secretaries and receptionists. Two other decisions, one in federal court affecting a Mormon church and the other in a state court of appeals case involving a Roman Catholic nursing home, affirmed the right of religious employers to dismiss employees whose faith changed after they were hired.

“These are very difficult cases because they pull at some very fundamental heartstrings,” said Steven C. Sheinberg, a lawyer at Outten & Golden, specializing in employment law. “There’s our belief that employees should be free of discrimination in their work, versus our belief that religious organizations should be free to hire people who best help them fulfill their religious mission, without the intrusion of government.”

Employees at religious institutions face other risks as well, thanks to pension law exemptions granted by Congress and upheld by the courts. Religious employers are exempt from Erisa, the federal pension law that establishes disclosure requirements and conflict-of-interest restrictions for employee pension plans. That exemption has given rise to several cases in which workers at religious hospitals found that their pensions had vanished because of practices that would not have been allowed under Erisa’s rules.

A related exemption frees religious employers from participating in the Pension Benefit Guaranty Corporation, the government-run insurance program that provides a safety net for corporate pension plans. And some significant court decisions in labor disputes in the last several years have made it easier for religious schools and colleges to resist collective bargaining efforts.

But for Mr. Heck, the question of whether these workplace exemptions are fair to religious employees was crystallized by the case of Ms. Rosati, the novice nun in Toledo.

He said the doctor involved in her case had been prepared to testify under oath on Ms. Rosati’s behalf. The doctor “had quite a vivid memory about these events.” In fact, Mr. Heck said, the doctor had cautioned the nuns who accompanied Ms. Rosati that it would be virtually impossible for the ailing novice to get affordable insurance anywhere else if she were dropped from the diocesan health.Read more...

Crimen Sollicitationis

VATICAN CITY, Oct 2 (Reuters) - The Vatican on Monday threw its full support behind British bishops who attacked a BBC documentary alleging there had been a cover-up of child sexual abuse under a system Pope Benedict enforced in his previous job.Roman Catholic bishops from England and Wales condemned the documentary, which was aired on Sunday night, as "false and misleading". The Vatican said it would have no comment of its own for the time being but said it fully endorsed a sternly worded statement by Archbishop Vincent Nichols of Birmingham written on behalf of the British bishops.

Nichols, chair of the Catholic Office for the Protection of Children and Vulnerable Adults, said the BBC should be "ashamed of the standard of the journalism used to create this unwarranted attack on Pope Benedict XVI". The BBC defended the documentary, made by the flagship current affairs programme "Panorama", which examined what it described as a secret document written in 1962 that set out a procedure for dealing with child sex abuse within the Catholic Church.

The document, called "Crimen Sollicitationis", imposes an oath of secrecy on the child victim, the priest dealing with the allegation and any witness. Breaking that oath would result in excommunication, the BBC said.

"The procedure was intended to protect a priest's reputation until the Church had investigated, but in practice it can offer a blueprint for cover-up," the documentary said.

"The man in charge of enforcing it for 20 years was Cardinal Joseph Ratzinger, the man made Pope last year," reporter Colm O'Gorman said in the programme "Sex Crimes and the Vatican". Ratzinger was head of the Congregation for the Doctrine of the Faith, the Vatican department that enforces doctrine, from 1981 until his election as Pope in April 2005.

DEFENCE OF POPE The British bishops said the original 1962 document was concerned not directly with child abuse but with the abuse of the confessional by a priest to silence his victim.

The 1962 document was revised in 2001 to deal more specifically with sexual abuse cases but still remained secret.

The bishops flatly rejected the attack on the current Pope.
"Since 2001 Cardinal Ratzinger, when head of the Congregation for the Doctrine of the Faith, took many steps to apply the law of the Church to allegations and offences of child abuse with absolute thoroughness and scruple," Nichols said.His statement said there were two strands to the documentary, one highlighting cases of child abuse by priests, a crime he said the Catholic Church dealt with seriously, carefully and with transparency, the other attacking the Pope.

"This aspect of the programme is false and entirely misleading. It is false because it misrepresents two Vatican documents and uses them quite misleadingly in order to connect the horrors of child abuse to the person of the Pope," he said.The document first surfaced publicly in 2003, when it was widely reported in the U.S. media, and was used by lawyers for alleged victims of sexual abuse by priests in law suits against some American dioceses.

The U.S. scandal, in which priests known to have abused minors were transferred from parish to parish instead of being sacked, was centred in Boston. It led to the resignation of the city's archbishop, Cardinal Bernard Law, in December 2002.The BBC defended its documentary.

"The protection of children is clearly an issue of the strongest public interest," it said in a statement. "The BBC stands by the 'Panorama' programme, and invites viewers to make up their own minds."