Friday, June 29, 2007

Former Nun Revives Discrimination Suit by Invoking Title IX

Earlier this year, Lynette Petruska lost her Title VII employment discrimination lawsuit against Gannon University, her former employer, when the Supreme Court declined to consider her appeal of a 3rd Circuit's ruling that a doctrine called the "ministerial exception" protected the University's right to make hiring decisions based on gender.

She is now trying again by raising claims under Title IX instead.

Petruska, a former nun, was demoted from her position as chaplain and forced to resign from the University "because of her gender and because she helped expose accusations of a cover-up over a priest who allegedly had an affair."

The First Amendment's Free Exercise clause protects individuals' and churches' freedom to practice religion. Courts have held that this clause protects churches in their capacity as employers. Courts will not examine a religious institution's motives when it comes to "selection of clergy–in other words, its choice as to who will perform particular spiritual function" (quoting the Third Circuit decision). Because constitutional rights trump statutory ones, this creates a "ministerial exception" to Title VII. In other words, as the Third Circuit concluded, even if Gannon University's decision to fire Petruska would have otherwise violated Title VII, because Gannon is the church and Petruska was a clergy (a chaplain), Petruska's statutory rights are not protected.

Unfortunately, I don't think that Petruska's new approach of suing Gannon under Title IX will make any difference to the outcome of her case. Courts generally construe Title IX's protection for employees as coextensive with the protection they receive under Title VII. Also, there is nothing in the Third Circuit's decision that suggests that its rationale was specific to Title VII and inapplicable to other statutory rights that might come into conflict with the Free Exercise Clause. ("The ministerial exception, as we conceive of it, operates to bar any claim, the resolution of which would limit a religious institution’s right to select who will perform particular spiritual function." (emphasis added))

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