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Topic: "Discrimination - Religion" | Main

Ministerial exception bars minister's termination suit against church
January 11, 2012 by Ross Runkel at LawMemo

The US Supreme Court unanimously held that the Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (US Supreme Ct 01/11/2012)

The church employed Cheryl Perich as a "called" teacher and a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her students to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year. After the church discharged Perich, the EEOC sued claiming the church discharged her in retaliation for threatening to bring a suit under the Americans with Disabilities Act (ADA). The trial court granted summary judgment for the church based on the ministerial exception; the 6th Circuit reversed on the ground that Perich was not a "minister." The Supreme Court reversed.

The Court recognizes a ministerial exception because "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church."

Perich was a minister within the meaning of the ministerial exception. Both the church and Perich held her out as a minister. That title required significant religious training and formal commissioning. Her job duties reflected a role in conveying the church's message and carrying out its mission.

(The Court expressed no view on whether the ministerial exception bars suits other than employment discrimination suits challenging a church's decision to discharge a minister.)



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Ministerial exception - Hosanna-Tabor Evangelical Lutheran Church v EEOC
October 03, 2011 by Ross Runkel at LawMemo

On Wednesday, October 5, the US Supreme Court will hear oral arguments for the first time on the scope of the "ministerial exception." Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (US Supreme Ct oral argument 10/05/2011).

The EEOC sued the employer, asserting a retaliation claim under the Americans with Disabilities Act (ADA). The trial court dismissed the claim, based on the "ministerial exception." The 6th Circuit vacated the trial court's dismissal. The US Supreme Court granted certiorari to review the 6th Circuit judgment.

The EEOC's claim arose from the discharge of a teacher from a sectarian school, and the primary issue on appeal was whether the teacher was a "ministerial" employee subject to the ministerial exception.

The 6th Circuit observed that "the overwhelming majority of courts that have considered the issue have held that parochial school teachers ... who teach primarily secular subjects do not classify as ministerial employees for purposes of the exception."

The 6th Circuit also observed that "when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church."

Applying those standards, the court concluded that the teacher at issue did not fall within the scope of the ministerial exception. The court noted that the teacher taught secular subjects, and spent only forty-five minutes out of her seven hour workday on religious-oriented activities. The court reasoned, "[t]he fact that [the teacher] participated in and led some religious activities throughout the day does not make her primary function religious."



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$46,000 religious (Rastafarian) discrimination settlement
February 22, 2010 by Ross Runkel at LawMemo

EEOC and UPS Freight have settled a religious discrimination suit for $46,000.

EEOC claimed that the company refused to accommodate the Rastafarian religious beliefs of a new hire, and instead fired him.

The company told the employee he would need to cut his hair and shave his beard to comply with the company’s grooming policy, but the employee said that his religious beliefs prohibit him from cutting his hair or shaving his beard.

[Press release]



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EEOC suit: Religious discrimination
February 17, 2010 by Ross Runkel at LawMemo

EEOC is suing a construction company, claiming it discharged Seventh-Day Adventist employees when they refused to work on their Sabbath, Saturday.

EEOC seeks back pay, compensatory damages and punitive damages.

Press release 02/11/2010:

EEOC Sues T.A. Loving Company For Religious Discrimination

Goldsboro, N.C., Company Fired Employees for Refusing to Work on Their Sabbath, Federal Agency Charged

RALEIGH, N.C. – T.A. Loving Company, a Goldsboro, N.C., construction company, violated federal law by denying a religious accommodation to several of its employees and later firing them because of their religion, the U.S. Equal Employment Opportunity Com­mis­sion (EEOC) charged in a lawsuit it filed today.

According to the EEOC’s suit, Elvis Cifuentes Angel worked for T.A. Loving Company as a day laborer. Cifuentes and at least two other laborers who worked with him are members of the Seventh-Day Adventist faith. They all hold the sincere religious belief, based on the tenets of their faith, that they cannot work on their Sabbath, which runs from sundown on Friday until sundown on Saturday. Cifuentes and his coworkers were discharged when they refused to work on their Sabbath on Saturday, Sept. 22, 2007. According to the complaint, T.A. Loving knew that these workers' objections to working on that day was based on their religion.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals because of their religion and requires employers to reasonably accommodate an employee’s sincerely held religious beliefs unless doing so would impose an undue hardship on the employer. The EEOC seeks back pay, compensatory damages and punitive damages for Cifuentes and the other employees, as well as injunctive and other non-monetary relief. The EEOC filed suit in U.S. District Court for the Eastern District of North Carolina (Equal Employment Opportunity Commission v. T.A. Loving Company Civil Action No. 5:10-cv-00054), after first attempting to reach a voluntary settlement.

“Employers need to ensure that their supervisors and managers who are called upon to make decisions on employees' requests for religious accommodation are fully knowledgeable of the employer's obligation under Title VII," said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. "Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommo­da­tion must be provided. No person should ever be forced to choose between their religion and their job.”

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.



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$43,000 religious discrimination settlement
February 07, 2010 by Ross Runkel at LawMemo

EEOC claimed that Ivy Hall Assisted Living fired a female housekeeper rather than accommodating her religious belief that she wear a Muslim head scarf (hijab) outside her home.

The suit was settled for $43,000 plus other relief.

EEOC Press release:

1-29-10

Ivy Hall Assisted Living Pays $43,000 to Settle Religious Discrimination Lawsuit

EEOC Charged Female Employee Fired Because of Muslim Headdress

ATLANTA – Ivy Hall Assisted Living, LLC will pay $43,000 and furnish other relief to settle a religious discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The agency had charged that Ivy Hall discriminated against a female housekeeper by firing her rather than accommodating her religious belief that she wear a Muslim head scarf (hijab) outside her home. According to the EEOC’s suit, Ivy Hall insisted that, as a condition of her continued employment, Khadija Ahdaoui remove and refrain from wearing her hijab on the job.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which requires that employers make an effort to accommodate employees’ and applicants’ sincerely held religious beliefs. The EEOC filed the suit on September 30, 2008 in U.S. District Court for the Northern District of Georgia (Case No.: 1:08-CV-3067-BBM-SSC).

The consent decree settling the suit, in addition to the monetary relief of $43,000, includes provisions for equal employment opportunity training, reporting of any further religious discrimination complaints, and posting of an anti-discrimination notice. In the suit and consent decree, Ivy Hall denied any liability or wrongdoing.

“Title VII protects employees from having to make the choice Ms. Ahdaoui was forced to make between her religious beliefs and her employment,” said Robert Dawkins, regional attorney for the EEOC’s Atlanta District Office. “The Commission is pleased that Ivy Hall committed itself to resolving this matter and to taking the necessary steps to ensure future compliance with the law.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov.




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$25,000 settles religion case
January 31, 2010 by Ross Runkel at LawMemo

New Community Corporation will pay $25,000 to a former employee to settle a religious discrimination and retaliation suit brought by the EEOC.

The EEOC claimed that the non-profit organization refused to grant a part-time employee a reasonable accommodation when he requested that he be excused from a requirement that employees donate money to a Catholic school that is part of a Catholic parish because the school’s religious mission was different than his religious beliefs as a Muslim.

[Press release]



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$130,000 settles religious discrimination suit
December 28, 2009 by Ross Runkel at LawMemo

EEOC alleged that Mesaba Airlines terminated a Jewish customer service agent because she refused to work on the Jewish Sabbath.

EEOC also claimed Mesaba’s policy against shift swapping for probationary employees led hiring managers to reject job applicants when they expressed a need to attend religious services, such as Christian church services on Sunday mornings.

In a consent decree, Mesaba agreed to pay $130,000 to five individuals.

[Press release]



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$43,000 settles religious discrimination suit
December 21, 2009 by Ross Runkel at LawMemo

EEOC claimed that that Ivy Hall Assisted Living, LLC discriminated against a female housekeeper by firing her rather than accommodating her religious belief that she wear a Muslim head scarf (hijab) outside her home. 

The suit settled for $43,000 plus nonmonetary relief.

[Press release]



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WI - State law age discrimination claim was barred by "ministerial exception" (4-3)
July 24, 2009 by Ross Runkel at LawMemo

A first grade teacher at a Catholic school brought an age discrimination claim against Coulee Catholic Schools under the Wisconsin Fair Employment Act (WFEA). The trial court rejected the employer’s assertion that the employee fell within the "ministerial exception" under the 1st Amendment and its state counterpart. The appellate court below affirmed. The Supreme Court of Wisconsin reversed by a vote of 4 to 3. Coulee Catholic Schools v. Lab & Ind Review Commn (Wisconsin 07/21/2009)

The court concluded that

"both the Free Exercise Clause of the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims under Sections 111.31 to 111.395 of the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization."

The court noted that "[t]he better way to view the ministerial exception is from what might be called the ‘functional’ approach." Under that approach, the key question is "whether a position is important to the spiritual and pastoral mission of the church." The court also noted that "[t]he primary concern here is the function of the employee, not only the enumerated tasks themselves."

The Dissenters said:

[O]ur court is reaching the anomalous conclusion that a first-grade lay schoolteacher at a Catholic school fits within the narrow "ecclesiastical"1 exception barring adjudication of her age discrimination suit against her employer. To reach that conclusion, the majority improvidently alters the primary duties test that Wisconsin courts and a significant majority of other jurisdictions have applied when confronted with the question of whether to apply the ecclesiastical exception. I disagree with the majority's conclusion that the Free Exercise Clause of the First Amendment to the United States Constitution and the freedom of conscience clauses in Article I, Section 18 of the Wisconsin Constitution preclude adjudication of this claim.


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Wal-Mart wins religion case
May 07, 2007 by Ross Runkel at LawMemo

What to do when a pharmacist, for religious reasons, refuses to handle birth control prescriptions?

Neil Noesen went to work for Wal-Mart as a pharmacist. He had religious objections to contraceptive articles, so the boss set things up so Noesen did not have to fill birth control prescriptions, take customer orders for birth control, or handle birth control items.

That wasn't enough for Noesen. If a customer phoned in with a birth control prescription, Noesen put them on hold and walked away without alerting someone else. When a customer came to the counter with a birth control prescription, he would walk away without telling anyone that a customer needed assistance.

Wal-Mart fired Noesen, so of course he brought a federal suit claiming a violation of Title VII.

Title VII requires employers to reasonably accommodate employees' religious practices unless that would be an undue hardship.

The 7th Circuit decided it would indeed be an undue hardship on Wal-Mart, because it would require shifting all of Noesen's phone-answering duties and customer counter duties to other employees. The court said Wal-Mart should not be required to increase the duties of other employees or to re-assign other employees.

Noesen v. Medical Staffing Network (7th Cir 05/04/2007) (nonprecedential disposition).

My view: A correct decision. Title VII does not require an employer to do much in a situation like this.

Thanks to Howard M. Friedman at Religion Clause for spotting this case.



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Ministerial exception flip-flop in Petruska v. Gannon University
September 07, 2006 by Ross Runkel at LawMemo

The ministerial exception applies to some employment law claims, but not all, according to yesterday's decision in Petruska v. Gannon University (3rd Cir 09/06/2006).

A previous opinion in this case (05/24/2006) (2-1) had held that the ministerial exception would not apply to any of the claims. But the opinion's author had died before it was filed, so the opinion was vacated and a new hearing was ordered.

The new opinion applied the traditional ministerial exception to most of the claims: The court said that the ministerial exception, "a doctrine rooted in the First Amendment," "applies to any claim, the resolution of which would limit a religious institution's right to choose who will perform particular spiritual functions."

Facts: During a restructuring, a Catholic university demoted Petruska from her position as chaplain. Her suit alleged (1) demotion because of her sex and in retaliation for her opposition to sexual harassment in violation of Title VII, (2) civil conspiracy, (3) negligent supervision and retention, (4) fraudulent misrepresentation, and (5) breach of contract.

Here's how the court ruled on each claim:

  1. Demotion because of sex and in retaliation for her opposition to sexual harassment in violation of Title VII

    The court said: "Gannon's choice to restructure constituted a decision about who would perform spiritual functions and about how those functions would be divided. Accordingly, application of Title VII's discrimination and retaliation provisions to Gannon's decision to restructure would violate the Free Exercise Clause."

  2. Civil conspiracy

    The court said: "Because the First Amendment protects Gannon's right to restructure - regardless of its reason for doing so - we cannot consider whether the act was unlawful or tortious, and, therefore, these claims must be dismissed."

  3. Negligent supervision and retention

    The court said: "Because the First Amendment protects Gannon's right to restructure - regardless of its reason for doing so - we cannot consider whether the act was unlawful or tortious, and, therefore, these claims must be dismissed."

  4. Fraudulent misrepresentation

    The court said: "The resolution of Petruska's fraudulent misrepresentation claim does not turn on the lawfulness of the decision to restructure, but rather on the truth or falsity of the assurances that she would be evaluated on her merits .... * * * The state's prohibition against fraud does not infringe upon Gannon's freedom to select its ministers ...."

  5. Breach of contract

    The court said: "Application of state contract law does not involve government-imposed limits on Gannon's right to select its ministers: Unlike the duties under Title VII and state tort law, contractual obligations are entirely voluntary."




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Religious objection to unions
September 02, 2006 by Ross Runkel at LawMemo

An employee doesn't want to support a union, on religious grounds, because the union supports abortion and same-sex marriage. The employee doesn't belong to any church that historically opposes unions. Do the union and employer have to accommodate this "non-church" sincere religious objection?

Title VII requires employers and unions to reasonably accommodate employees' religious beliefs. Those who have religious objections to unions and compulsoty payment of union dues can be accommodated by allowing an equivalent contribution to charity.

The twist: What if the employee does not belong to one of the churches that historically has objected to unions?

It shouldn't matter. "Religion" is not limited to those individuals who belong to certain churches (or to any church).

Yesterday, EEOC announced a big settlement involving these issues.

From the EEOC press release Justice Department And Equal Employment Opportunity Commission Settle Ohio Religious Discrimination Lawsuits:

WASHINGTON – The Justice Department and the U.S. Equal Employment Opportunity Commission (EEOC) today announced a consent decree to resolve religious discrimination lawsuits filed against the state of Ohio; the Ohio Environmental Protection Agency; the Ohio Department of Administrative Services; and the Ohio Civil Service Employees Association, AFSCME, Local 11, AFL-CIO. The lawsuits alleged that the state defendants and the union violated federal employment discrimination laws by failing to respect the rights of employees with religious objections to supporting the union.

The union and the state defendants permit employees who are members of churches that historically have opposed unionization to pay an amount equivalent to their dues to charity. However, they refuse to allow employees who do not belong to such churches, but nonetheless have sincere religious objections to supporting the union, to make a charitable donation instead of paying dues or fees. The suit was prompted by the case of a man who objected to associating with or supporting the union on religious grounds because of its support of abortion and same-sex marriage.

The Justice Department's lawsuit under Title VII of the Civil Rights Act of 1964 against the state defendants, and a Title VII suit by the EEOC against the union, were consolidated by the U.S. District Court for the Southern District of Ohio. If approved by the court, the proposed consent decree would require religious accommodations of state employees with sincere religious objections to associating with or financially supporting unions, whether or not they are members and adherents of a particular religion.

“The law protects the religious observances, practices, and beliefs of all Americans,” said Wan J. Kim, Assistant Attorney General for the Civil Rights Division. “I applaud the Ohio state officials for working with the Department to resolve this case.”

The vigorous enforcement of Title VII against public employers is a priority of the Justice Department’s Civil Rights Division. Additional information about the Civil Rights Division is available at http://www.usdoj.gov/crt.

EEOC Regional Attorney Jacqueline H. McNair said, “The resolution of this litigation will protect approximately 37,000 public employees covered by the State of Ohio’s collective bargaining agreement with the Ohio Civil Service Employees Association.”

Public employees in Ohio who are not covered by this consent decree may contact the EEOC's Cleveland Field Office at (216) 522-2001 for information about their rights regarding substituting charitable contributions for dues and fees as a religious accommodation.




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Establishment of religion - in the Navy
July 07, 2006 by Ross Runkel at LawMemo

Navy chaplains are of four types: Catholic, liturgical Protestant, non-liturgical Protestant, and "special worship."

Catholics are allowed to stay on duty beyond normal age limits. Others are not. That's the complaint made by a group of non-liturgical Protestant chaplains who sought a preliminary injunction against the Navy.

The DC Circuit faced the question of whether the plaintiffs could show the "irreparable harm" that is always necessary in order to get a preliminary injunction.

It's easy. Plaintiffs alleged an "establishment of religion" by the Navy, in violation of the 1st amendment. The court says that automatically makes up irreparable harm.

It took the court a lot of pages to figure it out, but in the end the rule was simple. Violation of the Establishment Clause is per se irreparable harm.

Now the case goes back to the trial court to sort out all the rest of the requirements for a preliminary injunction.

Chaplaincy of Full Gospel Churches v. England (DC Cir 07/07/2006).



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3rd - Ministerial exception case will be re-heard.
June 20, 2006 by Ross Runkel at LawMemo

In a May 24 opinion a three-judge panel of the 3rd Circuit refused to dismiss a Title VII suit brought by a church chaplain against her church employer. The panel adopted a "carefully tailored version of the ministerial exception."

The judges were split 2-1. The author of the majority opinion had died prior to the date the case was filed. Lots of folks wondered whether a dead judge's vote could count, and whether the opinion would hold up.

Now the 3rd Circuit has vacated the panel judgment issued May 24, and referred the case for rehearing. One of the original panel members has died and another has recused, so two new judges have been appointed. Petruska v. Gannon University (3rd Cir 06/20/2006).

The May 24 opinion (now vacated): Petruska v. Gannon University (3rd Cir 05/24/2006).

Full text of the latest order:

A majority of the active judges having voted, it is ordered that the petition is GRANTED. The Clerk of this Court is directed to VACATE the judgment of this Court filed May 24, 2006, and to refer the case to the panel for panel rehearing. Because Judge Edward R. Becker has died and circumstances have arisen which require Judge Richard L. Nygaard to recuse, Judge Morton I. Greenberg and Judge Robert E. Cowen, who were selected by random lottery by the Clerk, are assigned with Judge D. Brooks Smith to a panel to rehear and determine the case.

My previous comments on this case:



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Ministerial exception - the end is coming
June 12, 2006 by Ross Runkel at LawMemo

It's too early to announce the demise of the ministerial exception, but the smell of death is in the air. The US Supreme Court will be the final executioner.

The majority rule - the ministerial exception

Typical facts: A church employs a minister. ("Minister" includes ordained ministers, music directors, and teachers, but not clerks and janitors.) The minister sues the church claiming a violation of Title VII (sex harassment, gender discrimination, race discrimination, retaliation) or a violation of the Age Discrimination in Employment Act (ADEA).

Most courts apply the ministerial exception, resulting in the case being dismissed. They say courts can't touch these cases without running afoul of the religion clauses in the 1st amendment. It does not matter whether the church had a religious basis for making its decision.

This majority rule has been around for decades, and recently got a ringing endorsement from Judge Posner in Tomic v. Catholic Diocese (7th Cir 04/04/2006). He's a smart judge, and I have a lot of respect for his work.

Why the ministerial exception is wrong.

The ministerial exception is supposed to protect the church's freedom of religion and to prevent an establishment of religion, as required by the 1st amendment. However, courts apply the ministerial exception even when the church has not asserted that the case has anything to do with religion. As I've said before (Ministerial exception: putting churches above the law):

Courts that apply the ministerial exception are granting the church a blanket "hands-off" rule that makes no distinction between whether the church's actions are religiously based or not. Makes no sense. If the church has a religious reason for its action, then it should be shielded by the Free Exercise clause. When the claim is something like sex harassment, and that has no grounding in the religion, then there should be no free exercise problem. I see little force in the Establishment clause in these cases because there is no more entanglement than there would be in an ordinary assault-and-battery case.

Courts going the other direction

A minority of courts are rejecting the ministerial exception. See:

The final outcome

Courts that follow the ministerial exception will continue the error of their ways. It will take action by the US Supreme Court to put it to an end. I expect that Court (some day) will recognize that the 1st amendment does not give the church a blanket defense, and will construct a more sophisticated solution to reconciling Congress' anti-discrimination statutes with the 1st amendment.

My suggestion is to follow the holding in Petruska v. Gannon University (3rd Cir 05/24/2006) (2-1):

We adopt a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII. In such cases, restricting a church’s freedom to select its ministers would violate the Free Exercise Clause by inhibiting the church’s ability to express its beliefs and put them into practice. Furthermore, questions about religious matters would pervade litigation, entangling courts in ecclesiastical matters and violating the Establishment Clause.
But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulation, a process that would violate the Establishment Clause by entangling courts in religious affairs.


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EEOC v. Alamo - Can't fire Muslim for wearing scarf
June 03, 2006 by Ross Runkel at LawMemo

Alamo Car Rental fired a Muslim employee for refusing to take off her head scarf during the holy month of Ramadan.

Guess what? That violated Title VII, which requires that an employer provide a reasonable accommodation for an employee's religious practices.

EEOC described the case this way:

Prior to being fired, charging party Bilan Nur had worked for Alamo since 1999. EEOC’s lawsuit asserted that the company had permitted her to wear a head covering for religious reasons during Ramadan in 1999 and 2000. However, following the tragic events of September 11, 2001, Alamo refused to permit Ms. Nur to observe this particular religious belief during December of 2001.
Alamo claimed that it told Ms. Nur that the company dress code prohibited wearing of a scarf. Notwithstanding Alamo’s representation, the EEOC found that the company had no such policy. When Ms. Nur refused to remove the religious garment, Alamo disciplined, suspended and terminated her employment following consultation with regional level human resources officials and in-house counsel.


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Ministerial exception limited in Petruska v. Gannon University
May 24, 2006 by Ross Runkel at LawMemo

The 3rd Circuit has staked out a bold position on the application of Title VII to ministers of the church, refusing to apply a "ministerial exception" when church discrimination has no religious foundation.

Lynette Petruska was a chaplain at a Catholic university. She sued under Title VII claiming she was demoted because of her sex and in retaliation for her opposition to sexual harassment.

Most courts would have dismissed the suit out of hand, citing the "ministerial exception."

The 3rd Circuit is allowing the case to go forward. Petruska v. Gannon University (3rd Cir 05/24/2006 (2-1), majority opinion by Edward R. Becker, deceased.

Here's the main idea, quoting the court:

We adopt a carefully tailored version of the ministerial exception. Where otherwise illegal discrimination is based on religious belief, religious doctrine, or the internal regulations of a church, the First Amendment exempts religious institutions from Title VII. In such cases, restricting a church’s freedom to select its ministers would violate the Free Exercise Clause by inhibiting the church’s ability to express its beliefs and put them into practice. Furthermore, questions about religious matters would pervade litigation, entangling courts in ecclesiastical matters and violating the Establishment Clause.
But where a church discriminates for reasons unrelated to religion, we hold that the Constitution does not foreclose Title VII suits. Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects. Furthermore, in adjudicating suits that do not involve religious rationales for employment action, courts need not consider questions of religious belief, religious doctrine, or internal church regulation, a process that would violate the Establishment Clause by entangling courts in religious affairs.

Hooray for the 3rd Circuit, adopting exactly the position I have previously advocated. See Ministerial exception: putting churches above the law.



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Religion at work - No prayers, no Bible
May 02, 2006 by Ross Runkel at LawMemo

Daniel Berry was an evangelical fundamentalist Christian whose job was to assist unemployed clients transition out of welfare, and this involved frequent client interviews in his cubicle.

Berry's public employer denied Berry's wishes to be allowed to (1) share his religious views with clients in his cubicle, (2) use a conference room for voluntary prayer meetings, and (3) display religious objects (a Bible and a religious sign) in his cubicle.

The 9th Circuit said this did not violate Berry's rights under the religion clause of the 1st amendment or his rights under Title VII. Berry v. Dept of Social Services (9th Cir 05/01/2006).

Employment Law Memo notified its readers about this case on 05/02/2006.

1st amendment: The court used the Pickering v. Board of Education, 391 US 563 (1968) balancing test. The employer's interest in avoiding violations of the establishment clause and in having the conference room be a non-public forum outweighed Berry's free exercise of his religion at work.

Title VII: The employer was not required to accommodate Berry's religious practices because doing so would create a danger of violating the establishment clause, and thus be an undue hardship.



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Ministerial exception: putting churches above the law
April 04, 2006 by Ross Runkel at LawMemo

Say a church fires an organist for being too old. Or a female minister claims sexual harassment. The "ministerial exception" requires the courts to look the other way. The law can't reach church conduct that would be illegal for any other employer.

Although I don't like this rule, it certainly is the predominate approach taken by the courts. They base it on both the Establishment Clause and the Free Exercise Clause of the 1st amendment of the US Constitution.

Yesterday the 7th Circuit, in a classic decision by Judge Posner, applied the ministerial exception to require the courts to ignore the claim of an ex-organist who claims he was replaced by a younger person in violation of the Age Discrimination in Employment Act (ADEA). Tomic v. Catholic Diocese (7th Cir 04/04/2006).

Employment Law Memo notified its readers about this case on 04/05/2006.

The 2nd Circuit has taken a different view (2-1) in Hankins v. Lyght (2nd Cir 02/16/2006), where the court side-stepped the ministerial exception and sent the case back for the lower court to take a look at the Religious Freedom Restoration Act. Judge Posner had some terrible things to say about that case in the Tomic opinion.

My view:

Courts that apply the ministerial exception are granting the church a blanket "hands-off" rule that makes no distinction between whether the church's actions are religiously based or not. Makes no sense. If the church has a religious reason for its action, then it should be shielded by the Free Exercise clause. When the claim is something like sex harassment, and that has no grounding in the religion, then there should be no free exercise problem. I see little force in the Establishment clause in these cases because there is no more entanglement than there would be in an ordinary assault-and-battery case.

I'm encouraged by cases such as Elvig v. Calvin Presbyterian Church (9th Cir 07/23/2004), holding that a church minister could state a claim for sexual harassment.

For an excellent discussion of all this, I recommend Dolquist v. Heartland Presbytery (D. Kans. 10/28/2004). The judge surveys the field, and then concludes that a church pastor can state a claim under Title VII for sexual harassment and retaliation.



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Ministerial exception: putting churches above the law
April 04, 2006 by Ross Runkel at LawMemo

Say a church fires an organist for being too old. Or a female minister claims sexual harassment. The "ministerial exception" requires the courts to look the other way. The law can't reach church conduct that would be illegal for any other employer.

Although I don't like this rule, it certainly is the predominate approach taken by the courts. They base it on both the Establishment Clause and the Free Exercise Clause of the 1st amendment of the US Constitution.

Yesterday the 7th Circuit, in a classic decision by Judge Posner, applied the ministerial exception to require the courts to ignore the claim of an ex-organist who claims he was replaced by a younger person in violation of the Age Discrimination in Employment Act (ADEA). Tomic v. Catholic Diocese (7th Cir 04/04/2006).

Employment Law Memo notified its readers about this case on 04/05/2006.

The 2nd Circuit has taken a different view (2-1) in Hankins v. Lyght (2nd Cir 02/16/2006), where the court side-stepped the ministerial exception and sent the case back for the lower court to take a look at the Religious Freedom Restoration Act. Judge Posner had some terrible things to say about that case in the Tomic opinion.

My view:

Courts that apply the ministerial exception are granting the church a blanket "hands-off" rule that makes no distinction between whether the church's actions are religiously based or not. Makes no sense. If the church has a religious reason for its action, then it should be shielded by the Free Exercise clause. When the claim is something like sex harassment, and that has no grounding in the religion, then there should be no free exercise problem. I see little force in the Establishment clause in these cases because there is no more entanglement than there would be in an ordinary assault-and-battery case.

I'm encouraged by cases such as Elvig v. Calvin Presbyterian Church (9th Cir 07/23/2004), holding that a church minister could state a claim for sexual harassment.

For an excellent discussion of all this, I recommend Dolquist v. Heartland Presbytery (D. Kans. 10/28/2004). The judge surveys the field, and then concludes that a church pastor can state a claim under Title VII for sexual harassment and retaliation.



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EEOC aids Rastafarian against UPS
April 03, 2006 by Ross Runkel at LawMemo

EEOC sued UPS claiming religion discrimination. The claim is that UPS refused to hire a Rastafarian as a driver helper because he wore a beard, which he wore for religious purposes.

The claim is that UPS required the applicant to shave; otherwise the only job available would be a lower-paying job with no contact with the public.

EEOC's theory is that UPS must reasonably accommodate the applicant's sincerely held religious belief and practice. [EEOC press release.]

My view:

  • If the facts are true, then EEOC ought to win this one easily.
  • I wonder why EEOC brought this case, given their limited resources. Probably as a signal to all employers that they have to accommodate religious practices, even practices that are "different" and that are practiced by "different" religions.
  • I wonder why UPS didn't accommodate this applicant.


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Religious Freedom Restoration Act, ADEA, and ministers
February 19, 2006 by Ross Runkel at LawMemo

Is the “ministerial exception” dead?

The general rule is that federal anti-discrimination statutes do not apply to disputes between religious entities and their spiritual leaders. This is the ministerial exception. Well, not so fast. Maybe the Religious Freedom Restoration Act changes all that.

In Hankins v. Lyght (2nd Cir 02/16/2006) an ordained clergyman of the Methodist church claimed he was forcibly retired because he had reached the age of 70. Naturally, he sued under the Age Discrimination in Employment Act (ADEA). Just as naturally, the trial court threw out the suit, citing the ministerial exception.

The 2nd Circuit (voting 2-1) had a different idea: Apply the Religious Freedom Restoration Act (RFRA):

(a) In general. Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b).
(b) Exception. Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person--
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.

The court framed the issue on appeal as whether the Religious Freedom Restoration Act (RFRA) amended the ADEA. The court found that both the EEOC and private parties could enforce the provisions of the ADEA and, thus, the substance of the ADEA could not change depending on whether the EEOC or a private party brought the enforcement action. The court joined other circuits in holding that the RFRA was constitutional as applied to federal law under the Necessary and Proper Clause of the United States Constitution. The court stated that the RFRA amended the ADEA and governed the merits of this action.

The DISSENT argued that the RFRA by its own terms did not apply to suits between private parties and that the "ministerial exception" applied to the ADEA.



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Religion discrimination complaint was OK
February 11, 2006 by Ross Runkel at LawMemo

Rule 8(a), Federal Rules of Civil Procedure, does not require an employee to plead all the elements of a prima facie case.

When Christopher Kolupa got fired, he sued claiming it was because of his religion - a violation of Title VII. A federal district judge dismissed the complaint for failure to state a claim (Rule 12 (b)(6)), but the 7th Circuit reversed. Kolupa v. Roselle Park District (7th Cir 02/10/2006).

The district judge required:

"that the complaint allege facts corresponding to each aspect of a 'prima facie case' under Title VII. The judge summarized what plaintiffs must prove to make out a prima facie case of religious discrimination and then faulted the complaint for omitting some points. One aspect of a prima facie case is that the employer treated differently persons who are similarly situated except with respect to the protected attribute (race, sex, religion, and so on). See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The district judge wrote that this complaint is defective because, although Kolupa 'attempts to describe several situations where other Roselle Park District employees allegedly were treated more favorably than [Kolupa], he fails to allege that the employees were similarly situated in their conduct or that any of the [other] employees were [sic] outside of his protected class.' The judge did not explain why a complaint must include such allegations (let alone why a plaintiff must use the indirect McDonnell Douglas method even though direct proof may be available)."

The 7th Circuit Court of Appeals said:

"It is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate. A full narrative is unnecessary. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) . . ..
"The question presented in Swierkiewicz was whether the complaint in a Title VII case must include factual allegations corresponding to each aspect of a prima facie case; the Court held that it need not, writing that '[t]he prima facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading requirement.' 534 U.S. at 510. Yet the district court dismissed Kolupa’s complaint on the same ground that Swierkiewicz had disapproved. The [Supreme] Court held, and we reiterate, that complaints need not plead facts and need not narrate events that correspond to each aspect of the applicable legal rule. Any decision declaring 'this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b)."

[Read the Swierkiewicz complaint.]



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