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August 30, 2005
Double Standard?
This is really fascinating turn of events from the Diocese of Fargo. The link requires registration, but I'll summarize and quote. In 1999, a laywoman, a secretary in the diocesan office, became pregnant outside of marriage. She was fired. (The diocesan lawyer says she was fired for cohabitating, and was given the chance to change her situation, but didn't). She's suing for gender discrimination, and her lawyer wants to bring in evidence of how the diocese ahem, didn't fire priests for various types of sexual misconduct as part of the suit. The diocese is responding by saying, "Hey! Priests aren't employees!" (We've heard that before...)
(Of course, there really is no argument that the diocesan lawyer is correct on the point that lay employees and priests are in different categories as far as their relationship to the diocese goes. It is just interesting to me that it took so long for a dismissed lay employee to come up with this angle, the secret fantasy tactic of dismissed lay employees everywhere...)
Benjamin Thomas, the diocese attorney, argued at pretrial motions Monday in Cass County District Court that priests aren’t considered employees of the diocese.
Only the Vatican can appoint and remove priests, Thomas said. Also, it is the Code of Canon Law, not state labor laws, that dictate how priests are disciplined, he said. Therefore, priests don’t provide a fair comparison in Enebo’s case, Thomas said.
Enebo’s attorney, Robert Schultz, pointed out later that some priests are considered employees of the diocese and are under the bishop’s oversight.
Thomas said allowing allegations of priest misconduct as evidence would require an expert for the diocese to explain Canon Law, complicating an already complex trial.
“That would be hopelessly confusing to a jury,” Thomas said.
He also expressed the diocese’s concerns about unwanted public exposure, saying the allegations would be “devastating to all involved and would invite a media circus.”
“The diocese is very adamant that that information should not and could not be disclosed,” he said.
East Central District Judge John Irby ruled after the motion hearing that he would review any evidence of priest misconduct in private. He would then decide whether to allow the evidence in the trial.
Posted by Amy Welborn | Permalink
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Comments
Let me get this straight: The lay employee is arguing that the diocese holds its priests to a LOWER standard of sexual morality than its lay employees and, in defense, the diocese says that it is entitled to do so? Perhaps the diocese has a technical legal point. But could the gross structural clericalism that lies at the heart of the Situation be any clearer?
Posted by: Celine at Aug 30, 2005 11:15:30 AM
I guess they've made themselves perfectly clear yet again, Celine. Sigh.
Posted by: Nancy at Aug 30, 2005 11:21:35 AM
BTW, Priests might not be employees, but seminarians are considered independent contractors in at least one archdiocese. I suspect more than one.
Or are priests indpendent contractors, too? I don't think so ...
Posted by: Chris at Aug 30, 2005 11:32:30 AM
Maybe the diocese will utilize the same tortured logic that World Wrestling Entertainment used with the state of New Jersey. Arguing that its wrestlers didn't need protection under the state's health and welfare benefits because they were 'independent contractors.' Messy, messy.
Posted by: Gerard E. at Aug 30, 2005 11:40:43 AM
"Considered independent contractors"...considered so by whom?
Very many employers would love to characterize all their employees as independent contractors. Luckily this determination is not made unilaterally by the employer.
Celine's comment stll raises the most important consideration.
Posted by: Nancy at Aug 30, 2005 11:43:51 AM
What I find odd is that I doubt the employees take any vows of chastity.
In any event, there is now not much that a diocese can claim or a bishop can do that will surprise me. At all.
Posted by: julian at Aug 30, 2005 11:44:09 AM
Not that it makes much sense morally, but I do believe the diocese is legally correct.
Once again, taking what may be the best "legal" strategy is a disaster as a statement and example to the flock.
Posted by: Robin at Aug 30, 2005 11:46:20 AM
In any event, there is now not much that a diocese can claim or a bishop can do that will surprise me. At all.
Sigh. Too right, julian.
The diocese is making an ugly argument on many counts.
Posted by: Nancy at Aug 30, 2005 11:47:18 AM
When my father was an ordained deacon in a norteast diocese and active in operation rescue- blockading abortion clinics- he was told not to offer an annual contract to the diocese but to continue his work - off the books to preclude any possibility of lawsuits. But priests continued to abuse children for decades.
Posted by: Mary Alexander at Aug 30, 2005 11:48:50 AM
Independant contractor, my @#%.
IC's are defined by the IRS. Nobody else.
You lawyers out there know very well that no diocesan priest fits into the IRS' IC criteria. Why hasn't this been settled before? As for seminarians, are they or are they not students? How could a student, especially one recieving student loans, be considered an IC?
Last one out the Church, turn off the lights.
Posted by: cs at Aug 30, 2005 11:53:15 AM
cs is perfectly correct, of course. It's not even close.
Posted by: Nancy at Aug 30, 2005 11:56:49 AM
As a member of the Diocese of Fargo (and a citizen of Fargo), I've been following this case closely since its inception.
While I agree that the diocese had the right to fire the secretary for co-habitating, I don't like what Amy has already mentioned - that the priests involved in sexual abuse scandals have not been summarily dismissed as well.
Then again, I can see how the chain of command differs; the Diocese of Fargo does not have to consult the Vatican every time it hires/fires an administrative worker. It does need to do so when "hiring/firing" a new priest.
It's a complicated issue.
Posted by: JoAnna at Aug 30, 2005 12:00:01 PM
No, it's not, JoAnna. Complicated. That the diocese can (maybe) shuffle this problem upstairs to Rome only implicates Rome in the moral bankruptcy alluded to by Celine.
Posted by: Nancy at Aug 30, 2005 12:04:40 PM
"The diocese is making an ugly argument on many counts."
Both sides are not exactly making really superb arguments here. The woman (or her attorney I suspect), rather than stick to the facts, is trying to make a double standard case with everyone's favorite sex scandal. The diocese is making an utterly stupid argument.
Can anyone say "Settlement"?
Posted by: julian at Aug 30, 2005 12:10:41 PM
It's like law school. Assume the man she was cohabiting with was a diocesan priest. Same result?
Posted by: Terrence Berres at Aug 30, 2005 12:11:19 PM
"Double Standards"
Didn't Jesus die to abolish double standards, hypocrisy, and, in today' terminology, "parsing" and "nuances"? Isn't this the reason He did that?
But..But...But....But.....But.....But.......But
Posted by: cs at Aug 30, 2005 12:16:42 PM
Well, yeh, of course, julian.
I thought the Redemptorists and the Archdiocese would have settled the child support case with Stephanie Collopy too, before the whole gory story was smeared all over the LA Times. (I know for a fact that no settlement offer was even made in that case.)
These guys aren't even bright enough to understand how much this sort of publicity hurts them.
Their behavior passes understanding.
Posted by: Nancy at Aug 30, 2005 12:29:27 PM
First, a minor point of clarification. Thankfully, the IRS does not have the final say as to a worker's status. The Service is simply a division of a regulatory agency (the Treasury Dep't) that is assigned the task of enforcing the law, but its interpretations are not binding. Indeed, I have often disputed the IRS's worker classifications on audit and I have never lost.
That said, I agree that it is hard to imagine how a diocesan priest can be anything other than an employee, though I admit I don't know all the facts.
In any event, wouldn't the analogy between the fallen priests and the laywoman in question be more relevant if the priests, once discovered, refused to amend their ways? This assumes, of course, that the diocese did in fact give the secretary this opportunity as asserted.
Posted by: Mike Petrik at Aug 30, 2005 12:30:59 PM
Regarding priests as "independent contractors" ...
"During his testimony -- videotaped because he was out of the country at the time of the trial and edited under the judge's supervision -- Egan was asked about the lines of authority within the diocese. Egan said that priests were individual contractors and did not work for the diocese. "Every priest is self-employed," Egan said. "He pays his taxes four times a year.""
Cardinal (then bishop) Egan gave his testimony in 1997.
Cardinal Law used this defense of "independent contractor" as this scandal broke and through the summer of '02.
Posted by: Paul Pfaffenberger at Aug 30, 2005 12:32:22 PM
I believe it was that great prince of the church, Cardinal Egan of New York, who popularized the notion of priests as independent contractors. When he was bishop in Connecticut, and testifying about the scandals there (which had happened on his watch), he huffily contended that priests are "independent contractors" and, technically, not his or the diocese's responsibility. It now seems his line of reasoning has caught on...
Posted by: Thom at Aug 30, 2005 12:34:34 PM
In any event, wouldn't the analogy between the fallen priests and the laywoman in question be more relevant if the priests, once discovered, refused to amend their ways?
Well, of course they said they were going to amend their ways. Many of them were given, oh, four or five or more shots at it.
Posted by: Nancy at Aug 30, 2005 12:41:35 PM
I'm guessing that the diocese is arguing that state labor laws don't apply to priests because they fall under the "ministerial exemption" based on the 1st Amendment AND/OR an exemption based on a state statute. The "independent contractor" issue doesn't seem to be at play, but please correct me if I am wrong. Legally, I suspect the diocese is on solid ground, though judges have been known to make wrong decisions!
As to whether there is a "double standard," that would depend on whether the diocese knew that a priest was in a similar situation as the plaintiff (cohabitation) and, if so, what it did about it. I wouldn't be shocked if a double standard existed, but its existence has only been asserted, not demonstrated.
Posted by: Patrick Rothwell at Aug 30, 2005 12:41:50 PM
It's like law school. Assume the man she was cohabiting with was a diocesan priest. Same result?
Don't we all know the answer?
Posted by: Nancy at Aug 30, 2005 12:43:54 PM
I've written this before, all roads somehow seem to lead to Toledo . . .
http://www.sidley.com/news/pub.asp?PubID=134716252001
In Cline v. Catholic Diocese of Toledo, 206 F.3d 651 (6th Cir. 2000), an unmarried school teacher who had agreed to abstain from extra-marital sex was terminated after she became pregnant. See id. at 656. The teacher filed suit under Title VII, alleging that the school had engaged in unlawful pregnancy discrimination. Reversing the district court’s order granting summary judgment to the diocese, the Sixth Circuit concluded that the plaintiff had presented "sufficient evidence to call into question [the defendant’s] proffered reason for her [dismissal]," and was therefore "entitle[d] . . . to make her case before a trier of fact." Id. at 669. Specifically, the panel pointed to evidence suggesting (1) that the plaintiff’s "pregnancy alone had signaled [school officials to the fact] that she engaged in premarital sex," (2) "that the school does not . . . inquire as to whether male teachers engage in premarital sex," and (3) that the school "enforces its policy solely by observing the pregnancy of its female teachers." Id. at 667. According to the panel, this evidence created a genuine issue of material fact as to the legitimacy of the school’s explanation for its decision, and therefore precluded summary judgment. Id. at 668.
Posted by: lw at Aug 30, 2005 12:46:32 PM
Oh come on Patrick, are you contending that cohabiting is more morally reprehensible than molesting a child, so that if a priest is caught in the latter it's OK, but if the former he ought to be out? How about hitting on undercover police officers in a public restroom? Where does that rank?
Posted by: Nancy at Aug 30, 2005 12:50:02 PM
