A Whistleblower “minister” Loses in the Illinois Supreme Court
By Leslie C. Griffin
February 15, 2021
Whistleblowers do good things. They report illegal conduct to the police in order to protect others from harm. The Illinois Whistleblower Act protects them from retaliation when they report their employer’s or another person’s misconduct to the police.
Unless the court and the employer call the whistleblower a minister. If the court rules a person is a minister, she completely loses her day in court, as Mary Rehfield did recently in Mary Rehfield v. Diocese of Joliet.
I think Rehfield’s case should go to court, where either she or Joliet may win, based on the facts. That is a better rule than dismissing all the ministers’ cases because someone wants to call them a minister in court.
Lay Principal Mary Rehfield
Mary Rehfield had more than 43 years in education, including 18 years as a “lay principal” in a Catholic school. She also called herself a “lay individual,” which reflects her position in the Catholic church. She “describes her job duties as primarily secular in nature. She alleges that one of the main reasons she was hired as principal was ‘bringing order to the school administration.’” She improved the students’ education experience, gave them a new science curriculum and other better educational items, and promoted “an anti-bullying campaign.” In the church’s business, she is a lay Catholic; that means she is not a minister, or priest, the term that is usually used for Catholicism’s all-male clergy.
The church’s teaching about the laity shifts, however, whenever a lay employee sues it. This happened in the Supreme Court recently, when a 7-2 Court ruled that lay or even non-Catholic schoolteachers were ministers. The Court in Our Lady of Guadalupe School v. Morrissey-Berru overruled the Ninth Circuit’s decision that the teachers were teachers. The courts are allowing employers to turn many employees into ministers, and the employees’ cases get dismissed from court, no matter how bad the church’s conduct was.
Rehfield was engaged in an ongoing dispute between the school and a student’s father, who originally complained that his daughter had been bullied at the school. Whatever the school did, the father kept complaining, sending more emails, and leaving voicemails. With school officials’ approval, Rehfield sent pictures of the father around the school, telling school officials to call 911 if they saw the father. She also contacted the police.
After a local newspaper ran a story about the incident, Rehfield and school officials met with school parents, who were afraid because the newspaper had “inaccurately reported that [the father] threatened to terrorize the school and its staff.” Rehfield “remained calm and professional, addressing parents’ questions” during this meeting.
Nevertheless, a few days later, the school fired her. She “suffered significant financial and emotional distress as a result of her termination and has been unable to find another job.”
Rehfield fired a lawsuit alleging retaliatory discharge and a violation of the Whistleblower Act against her employer. The Illinois Supreme Court dismissed the retaliatory discharge lawsuit because she was a fixed-term contract employee; Illinois retaliatory discharge law applies only to at-will employees. I wondered about that rule and someday would like to study it more. But I paid more attention to the rejection of the whistleblower claim on the grounds that Rehfield was a minister.
The court rejected the school’s argument that the Whistleblower Act, which protects employees who call attention to illegal activities, did not apply to Rehfield because she was not reporting her employer’s misconduct. The court instead stated that by its very language the act protected an employee like Rehfield who reported a non-employer’s misconduct to the police.
Nonetheless, they said, she was a minister so her lawsuit under the act ended. Even if it would have been a successful lawsuit.
The court considered two defenses that religious organizations have to lawsuits. First is the ecclesiastical abstention doctrine, which keeps the courts from deciding religious issues. Second is a narrower one, the ministerial exception, which ends lawsuits brought by ministers. The court followed the narrower rule because it believed the rule applied. It did not matter that Rehfield was a whistleblower. Instead, because her employer and the court called her a minister, her case was dismissed.
Rehfield “argue[d] that the ministerial exception is inapplicable to her whistleblower claim because her claim involves public policies and societal interests beyond the protection of an individual’s right to be free from employment discrimination.” The Illinois court acknowledged that the U.S. Supreme Court has not decided whether a whistleblower’s lawsuit can proceed in ministerial circumstances. “Thus, we must decide as a matter of first impression in this State whether plaintiff’s whistleblower claim is subject to dismissal based on the rule announced in Hosanna-Tabor.”
They decided that Rehfield was a minister and so her case was dismissed; they then added that their holding was limited to this one case only.
That was one case too many.
Review the Facts of the Case, Not the Ministerial Status
The court cited Justice Sotomayor’s Guadalupe dissent, which was joined by Justice Ginsburg, in a footnote: Sotomayor “argued that the majority’s classification of the plaintiffs as ministerial was incorrect and ‘profoundly unfair,’ where the record showed that plaintiffs ‘taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic.’”
That unfairness happens in all these cases. Employees experience workplace discrimination that is illegal, but the illegality is completely ignored because the employees are labeled ministers even if they have never been ministers. This rule is supposed to protect religious freedom, but instead it gives religions license to fire their employees for any reason and not ever have to pay any consequences. Chief Justice Roberts gave dangerous range to the exception in Hosanna-Tabor, when he wrote, “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical,’—is the church’s alone” (emphasis added). The ministerial exception gives absolute authority to the churches to mistreat for any reason alone, and that leaves them free to fire their employees for race, gender, sexual orientation, age, disability, . . . or for being a whistleblower.
The ministerial debate is going on in another Chicago case, this one in the U.S. Court of Appeals for the Seventh Circuit. In August, a panel of that circuit allowed Sandor Demkovich’s hostile environment discrimination case against St. Andrew the Apostle Parish and the Archdiocese of Chicago to proceed. The panel resisted the church’s argument that all ministerial hostile environment claims were completely barred. “The First Amendment does not require complete immunity from the sometimes horrific abuse that defendants’ bright-line rule would protect” (emphasis added). The en banc court heard oral argument on Tuesday, February 9, in Demokovich. We will see if the court allows the lawsuit to proceed, or not.
I think the original panel was correct that the First Amendment should not give religious organizations “complete immunity from . . . horrific abuse.” Demkovich’s hostile environment claim, like Rehfield’s whistleblower’s activity, should enjoy enough legal protection that they get a day to try their case in court. In a trial, the church may win or lose, depending on how they treated the employee. Letting the factual decision about the abuse or the whistleblowing be made in court protects both parties, either of whom could win or lose.
In contrast, the ministerial exception ignores any church wrongdoing and gives them pure religious freedom to dismiss all negative claims against them without accountability. That does not meet the purposes of our civil rights laws, which are supposed to protect employees.