Two recent articles stated that a rabbi cannot sue her synagogue for sexual harassment: “Female Rabbis Can’t Sue For Sexual Harassment Due To ‘Ministerial Exemption’” and “Female Rabbis Speak Out About ‘Pervasive’ Harassment.”
The statements that one cannot sue a religious employer are incorrect. People sue religious employers frequently for a variety of reasons. Pastoral employees are among them, and have sued religious employers for sexual harassment.
The “ministerial exemption” noted in the articles is a doctrine that would prevent a court from enforcing sexual harassment laws against a religious employer if doing so would intrude into questions of doctrinal teaching or faith. It is not a blanket exemption for a class of employers to engage in unlawful conduct.
If a rabbinate employee’s alleged sexual harassment were unrelated to the performance of religious services and unrelated to issues of doctrine or doctrinal teaching, then she might have a viable claim against her synagogue if the legal elements of unlawful harassment were present. The First Amendment protects the free exercise of religion; without a fundamental connection to the beliefs or practice of religion, the First Amendment offers no sanctuary to harassers.
The author is a Minneapolis-based attorney focused on employment law and labor relations for private, public and nonprofit organizations. His policies are used in training programs for Jewish organizations seeking to ensure safe, respectful workplaces.
Editor’s Note: Our story quoted a lawyer as saying he declined to bring a sexual harassment suit against a rabbi’s employer because of the ministerial exemption rule. It also quoted another lawyer affirming that position. But a third lawyer was quoted in our sidebar story as saying he believes he could succeed in pressing such a case because sexual harassment has nothing to do with church doctrine. The Jewish Week took no position on the legal rule but rather reported on it.