Federal appeals court rules against presbytery in harassment complaint By John H. Adams The Layman Online Monday, August 30, 2004 Presbyterian minister Monica L. McDowell Elvig of Lake Forest, Washington, has won her day in court with a decision that slightly cracks the wall between church and state. Two members of a three-judge panel of the 9th Circuit Court of Appeals in the state of Washington ruled that she has the right to sue for damages for alleged sexual harassment and a "hostile work environment." One of the judges dissented, essentially agreeing with the lawyers for the Presbyterian Church (USA), who contended that favoring Elvig and allowing her accusations to be weighed by a secular court violated the ministerial exception in Title VII of the Civil Rights Act. Furthermore, they argued, the secular courts should have no say in the hiring and firing of ministers. The PCUSA's lawyers also contended that Elvig violated her ordination vows, including G-14.0207e in the Book of Order. That is one of the constitutional questions candidates for ordination must answer affirmatively: "Will you be governed by our church's polity, and will you abide by its discipline? Will you be a friend among your colleagues in ministry, working with them, subject to the ordering of God's Word and Spirit?" By taking a church issue to the secular courts, the PCUSA's lawyers said Elvig was reneging on her oath. The trial court concluded that "reviewing Elvig's retaliation claims would cause government entanglement with the Church's internal governance, in violation of the Establishment Clause." But the appellate court decided that Elvig did have the right to sue – on secular issues only. Here's how Elvig's case developed, according to the appellate court's decision: For a year, from December 2000 to December 2001, Elvig served as an associate minister of Calvin Presbyterian Church in Shoreline, Wash. During that year, she complained to the Presbytery of North Puget Sound that the Rev. Will Ackles, the pastor at Calvin, "engaged in sexually harassing and intimidating conduct toward her, creating a hostile working environment." The presbytery's investigative committee called for no action against Ackles. Calvin Presbyterian Church put Elvig on unpaid leave, but the Presbytery of North Puget Sound gave her a job. Unable to get a hearing before the presbytery, Elvig filed a complaint with the U.S. Equal Employment Opportunity Commission, which granted her permission to file suit under the provisions of Title VII of the Civil Rights Act. Once that action had become public, the presbytery fired Elvig and decided not to send out her Personal Information Form, which is necessary for a minister to be considered for a call to another congregation. Thus, Elvig said the presbytery put her career in limbo. Elvig filed a complaint in the Western District of Washington, seeking "back pay, front pay and damages for emotional distress and harm to her reputation. She also sought injunctive relief, including a preliminary injunction requiring the Defendants to permit her to circulate her personal information form." The district court, saying that Elvig's allegations implicated the PCUSA's constitutionally protected right to choose its ministers, ruled that she had not stated a claim for relief because her case was barred by the ministerial exception to Title VII. But the appellate court disagreed, although it did say that "to the extent Elvig's sexual harassment and retaliation claims implicate the Church's ministerial employment decisions, those claims are foreclosed. Nonetheless, Elvig has stated narrower and thus viable sexual harassment and retaliation claims that do not implicate protected employment decisions. Elvig's sexual harassment claim can succeed if she proves that she suffered a hostile work environment and if the Defendants do not prove that Elvig unreasonably failed to take advantage of available measures to prevent and correct that hostile environment." "Should the Church be found liable on either of these claims, Elvig may recover damages for consequent emotional distress and reputational harm," the court said. "Within this framework, Elvig's Title VII suit can provide her with redress for sexual harassment and retaliation without attaching liability to ministerial employment decisions protected by the First Amendment." The appellate court's decision did not allow for Elvig's claims related to employment actions by Calvin Presbytery Church and the presbytery. Judicial inquiry "into this argument would, as a practical matter, necessarily create First Amendment problems," the panel said. "A church's selection of its ministers is unfettered, and its true reasons – whatever they may be – are therefore unassailable … That said, insulating the Church's employment decisions does not foreclose Elvig from holding the Church vicariously liable for the alleged sexual harassment itself, which is not a protected employment decision." While excluding employment protection as a trial issue, the court said Elvig was entitled to seek damages "for emotional distress and reputational harm caused by the sexual harassment itself – or by retaliatory harassment." If the Presbyterian Church had declared that "tolerating or failing to stop sexual harassment is a protected religious doctrine, the Church could invoke First Amendment protection from Title VII … [But] the Church has pled no such religious justification; rather, it denies the harassment occurred at all and contends that, guided by its internal grievance procedures, it reasonably responded to Elvig's complaints." The appellate court said the Presbyterian Church (USA) might well prevail in trial and demonstrate that Elvig – and not Ackles – acted unreasonably. "But the merits of the Church's affirmative defense, which we must presume to be nil at this stage of the proceedings, provide no First Amendment basis for shielding the Church from its obligation to protect its employees from harassment when extending such protection would not contravene the Church's doctrinal prerogatives or trench upon its protected ministerial decisions." The appellate court also said the defendants' argument essentially meant that "a minister may be subjected to sexual harassment that Congress in enacting Title VII made clear should not be tolerated in the workplace; that once a woman (or man) becomes a minister, the First Amendment requires that she (or he) surrender all rights to protection against such harassment even if the church's doctrine neither condones nor tolerates the harassment; and that the federal courts are off limits because they are incapable of providing nuanced relief that respects both the individual rights Congress enacted and a church's constitutional right to be free of doctrinal interference." The dissent was filed by Judge Stephen Trott, who opposed remanding the case for trial. "Such an inquiry into whether the Church exercised 'reasonable care' will involve, by necessity, penetrating discovery and microscopic examination by litigation of the Church's disciplinary procedures and subsequent responsive decisions," he said. Trott warned of "serious consequences: the Presbyterian Church, as a hierarchical religious institution, will now be compelled in federal court affirmatively to defend as reasonable its formal internal processing and handling of an ordained minister's sexual harassment and retaliation claims against another ordained minister and their Church, and be potentially liable for money damages. A secular federal court jury has been given the authority to invade, to evaluate, and to overrule the Presbyterian Church's final judgment to which the Church says the plaintiff was bound to accept by her religious vows."

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