Ministerial Exception Interpreted in Ohio Employment Discrimination Case

21 April 2012

The Supreme Court held 9-0 in Hosanna-Tabor Evangelical Lutheran Church and School v. U.S. Equal Employment Opportunity Commission 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. The Court also held that because the respondent in this case was a minister within the meaning of the ministerial exception, the First Amendment requires dismissal of her employment discrimination suit against her religious employer.

Even with January 2012 Supreme Court ruling that churches and other religious groups must be free to choose their leaders without government interference, an Ohio federal judge ruled in favor of an unmarried Catholic schoolteacher who was fired after becoming pregnant. U.S. District Judge S. Arthur Spiegel held in Dias v. Archdiocese of Cincinnati that Christa Dias could proceed with a discrimination suit, even with the ministerial exception to employment discrimination laws. The court found that Dias, unlike the Lutheran schoolteacher at the center of the Hosanna-Tabor ruling, should not be considered a minister, and was therefore not barred from bringing her claim. This ruling by the Ohio court is one of the first to interpret the ministerial exception under the new Supreme Court decision.

The teacher in Hosanna-Tabor had the professional title of “minister,” taught religious courses, had significant religious training, and led the students in prayer. Dias, on the other hand, had no religious title or training and was not permitted to teach religious doctrine. Judge Spiegel concluded that the Supreme Court did not articulate a test for determining who qualifies as a ministerial employee. In comparing the facts the Court used to determine that the teacher in Hosanna-Tabor was a minister against the characteristics of Dias’ role in the school, Judge Spiegel held that Dias was not a minister within the definition and therefore was not barred by the exception.

Lower courts have recognized a ministerial exception before, but in Hosanna-Tabor, the lower courts concluded that it did not apply. Chief Justice Roberts, who authored the opinion overruling the lower courts decisions, explained that while the court was not ready to apply a “rigid formula for deciding when an employee qualifies as a minister… [the church] held [the teacher] out as a minister… and tasked her with performing that office ‘according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.’”

Dias was technology coordinator for two Catholic schools and is not Catholic. She was fired after she became pregnant through artificial insemination and alleges the archdiocese breached her employment contract and that her termination amounted to pregnancy discrimination under Title VII and state law. The archdiocese moved to dismiss the suit, which was postponed until the decision in Hosanna-Tabor was announced. After the Court ruled that there was a ministerial exception to employment discrimination laws, the archdiocese argued that Dias’ case fit within the ministerial exception because schools’ designation their teachers as Catholic role models, which fits within the meaning of the exception. Judge Spiegel disagreed and Dias’ employment discrimination case goes on.

The question remains as to whether the Supreme Court will find it necessary to create a rigid formula for the ministerial exception in the future in response to the varying applications at the lower court level.

Click here to read more about Dias. For the full Hosanna-Tabor opinion, click here.

The Problem with At-Will Firing and Wearing the Color Orange

20 April 2012

In the United States, employees without a written employment contract can be fired for good cause, bad cause, or no cause at all. Florida, like many other states, is an at-will state. This means the employer can terminate the relationship at any time, leaving the employee with very limited legal rights to fight against termination.

At-will firing took a whole different meaning when a group of employees were fired from a law firm in Deerfield Beach, Florida for wearing orange shirts to work. The 14 employees fired from the Elizabeth R. Wellborn Law Firm began wearing matching orange shirts on pay-days a few months ago so they would stand out as a group at happy hour after work.  This act of camaraderie was viewed as being part of a protest involving orange, and all those wearing the color were fired. One employee tried to explain the happy hour connection, but the employees were still let go, despite the explanation and the lack any office policy regarding color of clothing.

This is an example of at-will firing: employers firing employees for no reason at all. At-will firing does not extend to protected actions, such as wearing clothes that have religious meaning (also included is any form of race, gender, or disability discrimination). However, unless your employment contract indicates that the employer will only fire you for good cause, the law in most states presumes that you are employed at-will.

While at-will firing in the form of wearing the color orange will catch most employees by surprise, it is not illegal on its face. The problem arises when the employer grounds the employment termination in a workplace protest, which may be a protected concerted activity. Protected concerted activities, such as organizing or collective bargaining, are activities that employees can engage in without fear of retaliation from their employers. This most frequently arises when one or a small group of employees is outspoken about workplace injustice or a group of employees meet to discuss the possibility of unionizing. Regardless of the form the concerted activity takes, the employer would be in violation of § 7 of the National Labor Relations Act for firing employees in reaction to their protest or organization. Elizabeth R. Wellborn Firm, in an attempt to give cause for the firing of the 14 employees, may have given the employees the evidence they need to make a case in court.

8 of the 14 employees fired for wearing orange have hired an attorney to represent them in pursuing a case with the National Labor Relations Board (NLRB). The law firm has recently released statements in response to the complaint, claiming that the firing was related to bullying incidents, not because of protesting activities. Whichever argument the Firm decides to use when defending the complaint, this incident raises attention to at-will firing and how that can lead to losing your job over the color orange.

NLRB Union Poster Rule Struck Down in U.S. District Court

20 April 2012

 Judge David Norton of the U.S. District Court of South Carolina ruled that the National Labor Relations Board (NLRB) exceeded its congressional authority when it issued a rule that required employers to post notices that detail workers’ right to unionize, and penalized non-compliant employers.

The NLRB rule requires employers to post an 11×17 inch notice that explains the rights of employees under the National Labor Relations Act (NLRA). The notice, which could be obtained from the NLRB website, stated that employees have the right to act together to:

  • Improve wages and working conditions;
  • Form, join and assist a union;
  • Bargain collectively with their employer; and
  • Refrain from any of these activities.

As is customary, the rule was proposed in the Federal Register and a sixty-day period followed where comments and objections could be submitted to the NLRB. The NLRB received roughly 6,500 comments during that period, and accepted an additional 500 late comments. While the Board made certain concessions, such as removing any requirement that the notice be circulated via email, it ultimately upheld the rule. According to the NLRB, failure to comply with the posting requirements, which have an April 30th deadline, could result in an unfair labor practice charge.

The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce filed a lawsuit against the NLRB in the United States District Court of South Carolina. The lawsuit claims that:

  • Nowhere does the NLRA give the NLRB authority to coerce employers to post such notifications, or to impose onerous penalties for those who fail to post the notices.
  • In violation of the APA, the rule arbitrarily and capriciously excludes from the mandatory notice a description the fundamental rights of employees to be free of compulsory union membership and compulsory union dues.
  • The NLRB violated the RFA by failing to properly assess the significant economic impact the rule would have on small businesses.
  • The rule violates the First Amendment by compelling employers to post the NLRB’s ideological views on unionizing

Judge Norton agreed, noting that “[b]ased on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.” The ruling seems to support the proposition that the NLRB has become overly aggressive with its rulemaking ability. “The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles,” Judge Norton wrote.

The ultimate fate of the NLRB rule is yet to be determined. Private employers and interested parties can find out more about this case by visiting the US Chamber of Commerce and the Hill.

DC Whistleblower Case May Come To an End After a Decade

18 April 2012

Recently the District of Columbia asked a Washington federal court to grant summary judgment in its favor in a False Claims Act lawsuit that was brought nearly a decade ago by Theresa Weston Saunders, a former employee in its Office of the Chief Technology Officer.  According to the motion, Saunders failed to show how the district retaliated against her when she alleged that the OCTO’s contracts failed to comply with district and federal regulations.  The motion states that no individual who was involved in Saunders’ reassignment or termination was even aware of her allegations.  The district further contends that Saunders’ was reassigned because of poor performance and was eventually terminated because she refused to be available for meetings and work full time.

Additionally, the district contends that Saunders’ cannot bring her retaliation claim under the FCA because it does not count as an activity that is protected under the act.  The motion states that Saunders’ reporting of “concerns to her supervisor regarding a failure to comply with state and federal regulations… does not constitute ‘protected activity’ under the False Claims Act.”  The district also asserts that Saunders cannot claim that she was discriminated based on race because there is no proof to support that accusation.

Lastly, the district claims Saunders’ cannot bring a claim for deprivation of liberty interest without due process because as an at-will employee she had no such interest. The spokesman for the D.C. attorney general’s office declined to comment on the motion and Saunders attorney was not available for comment.

NCAA Sanctions Against Baylor University

18 April 2012

The best year of athletics for Baylor University has come to an end with possible NCAA sanctions on the way. An NCAA investigation, that began in 2008, into Baylor’s Men’s and Women’s basketball programs revealed that the Men’s coach, Scott Drew, the Women’s coach, Kim Mulkey, and their assistants, were involved in over 1,200 impermissible phone calls and text messages over a 29-month span. The NCAA labeled these contacts as “major violations” of NCAA regulations.

The assistant coaches, who engaged in most of the impermissible contact, are more likely to face a “show-cause penalty,” meaning that any penalty will be permanently on their records regardless of where they coach. Therefore, any school that decides to hire them must “show cause” as to why they should not be subject to the penalties from the assistant coaches actions at Baylor.

Baylor has currently self-imposed penalties against the head coaches, including prohibiting off-campus recruiting during the summer recruitment period, loss of scholarships, prohibiting recruiting calls, and reducing the maximum number of visits allowed. The NCAA has accepted the self-imposed sanctions, and decided to not add on to them.

For more on this topic, click here.

Women’s Employment is Pivotal in 2012 Election

18 April 2012

The state of the economy is always a pivotal issue in a Presidential election year, and this year is no different.   Candidates are well aware of this and as we draw closer to the November election each candidate has begun to devote more time to stump speeches that address topics ranging in scope from taxes and the national debt to the unemployment rate and the right to work movement. This year, however, women’s employment has joined the ranks as a campaign season hot topic.

President Obama, no different than the other candidates, and is using every opportunity to tout why he is the best-equipped candidate to improve our economy.  President Obama, like all incumbent presidents, has an advantage over the other candidates as he has the ability to use taxpayer dollars to target key voters through official White House events.  After an early April USA Today/Gallup poll showed President Obama with a 54%-36% lead over Mitt Romney, President Obama took advantage of his special campaign resource and quickly pulled together a White House Forum on Women and the Economy to highlight all the efforts his Administration “has taken to lift up the lives of women and girls in this country.”  The event, held on April 6th, celebrated a declining unemployment rate and served as a platform for the unveiling of a White House report titled,  Keeping America’s Women Moving Forward, which details the many ways the Obama Administration has created jobs for women and provided for women’s economic security.

While events such as the White House Forum are normally tainted with clandestine campaign pitches, President Obama blatantly informed attendees that various Republican polices would harm this country by reversing the progress that has been made in improving the economic status of women since he took office.

Ironically, the date of the Forum coincided with the release of a report by the Institute of Women’s Policy Research which showed that the jobs gained by women have significantly lagged behind the gains made by men. Specifically, “since June 2009 when the recession officially ended, men have gained 88 percent (2.0 million) while women have gained only 284,000 (12 percent) of the jobs added to payrolls.”

Regardless of which end of the political spectrum you may be on, the reality is that the economic downturn has taken a significant toll on the employment of women.  Let’s hope that the person who is elected President in November, regardless of whether that is Obama or a Republican candidate, gives as much effort to actually addressing this issue as they have to using it as a means to gain media attention.

UPDATE: Maryland Protects Employees’ Facebook Password Privacy

16 April 2012

The Maryland State Senate unanimously passed a bill titled, “Labor and Employment – Username and Password Privacy Protection and Exclusions.” If Governor O’Malley signs it, Maryland will become the first state to prohibit employers from requiring potential candidates to provide passwords to their Facebook accounts. The bill, which “Prohibit[s] an employer from requesting or requiring that an employee or applicant disclose any user name, password, or other means for accessing a personal account or service through specified electronic communications devices,” covers all internet accounts, such as Twitter and GooglePlus, and applies to all Maryland employers.

It is only fitting that Maryland become the first state to pass such legislation, as it was there that requests for Facebook passwords first made headlines. In 2010, Robert Collins contacted the ACLU of Maryland after he was asked by the Maryland Department of Public Safety and Correctional Services to hand over his login information. Maryland State Senator Ron Young immediately introduced a bill to prohibit the practice, but it failed to get enough support until this year.

Outrage over the employers requiring job candidates to relinquish their Facebook passwords has only recently received national attention. On March 29th, the House of Representatives voted on an amendment, introduced by Ed Perlmutter (D-CO), to the FCC Process Reform Act, which would have permitted the FCC to ban the practice. The House voted down the amendment at the request of Representative Greg Walden (R-OR), who introduced the Act. Representative Walden, however, was not against the underlying message of the amendment. While he did not believe the FCC was the appropriate regulatory body, Representative Walden stated, “I think it’s awful that employers think they can demand our passwords and can go snooping around.”

The initiative to protect employees’ Facebook passwords on the federal level has bi-partisan support. Republican Representative Patrick McHenry, from North Carolina, has picked up where Perlmutter left off, by drafting legislation that prohibits employers from asking for passwords to internet accounts. Richard Blumenthal (D-CT) will introduce a similar bill in the Senate. Even if the House and Senate bills fail to gather enough votes, requiring employees or job candidates to turn over their passwords may still be an illegal practice. Senators Blumenthal and Schumer (D-NY) have asked the Justice Department and the EEOC to determine whether this practice violates federal law.

Facebook itself has taken a strong stance on the topic. In a statement issued on March 23rd, Facebook warned employers of the many ways they can find themselves in hot water if they force a potential new hire to reveal his or her password. For example, employers may open themselves up to claims of discrimination after finding out that the prospective employee is a member of a protected class. The employer may also become responsible for information obtained while reviewing a candidate’s account – such as evidence suggesting the commission of crime.

The message sent by state and federal lawmakers, as well as Facebook itself, should have any employer thinking twice before invading their employees’ privacy. For more information, please visit The Hill and The Fredrick News Post.

President Obama Refuses to Issue Ban on Gay Discrimination

16 April 2012

President Obama has refused to issue an executive order that would have prevented federal contractors from discriminating against employees and potential employees, based on their sexual orientation or gender identity. Given the upcoming election, gay activists have accused the President of valuing his own political career over the civil liberties of Americans. Tico Almeida, the founder of Freedom to Work, was quoted as saying, “This is a political calculation that cannot stand.”

Seventy-two members of Congress wrote the President earlier this month, urging him to issue to the executive order. The letter raised concern about billions of taxpayer dollars that have gone to companies that discriminate against the LGBT community. For example, DynCorp, a military contractor, was found to have permitted a hostile work environment, which led to one employee being subjected to hateful and derogatory anti-gay slurs on a daily basis. The letter also cited recent polling, which showed that 75% of the voters in the upcoming election support the protection of LGBT individuals from workplace discrimination.

In lieu of issuing the executive order, President Obama has cast his support behind ENDA, the Employment Non-Discrimination Act. While the Act would achieve similar goals, President Obama’s support of it is token, at best. “There is no way the ENDA . . . will pass this Congress,” according to Winnie Stachelberg, of the Center for American Progress.

The Center for American Progress issued a paper on April 4th, which highlighted the reason’s why the ENDA is not a sufficient replacement for the executive order. The executive order would have covered the deficiencies of the ENDA, which does not apply to federal contractors with less than fifteen employees. Polling of small business owners has shown that the majority support LGBT protection and do not feel that they would be financially burdened by anti-discrimination policies. Additionally, under ENDA, LGBT individuals who suffer discrimination in the workplace must come forward and file a complaint with the EEOC. If President Obama had issued the executive order, the Office of Federal Contract Compliance Programs could have made proactive compliance evaluations, which are a vital part of combating employment discrimination.

President Obama has largely supported LGBT rights, repealing the “don’t ask, don’t tell” policy that prohibited gays from openly serving in the military. His administration has also recently dropped legal support of the Defense of Marriage Act, which would bar federal recognition of same-sex marriages. Nevertheless, President Obama is yet to actually support gay marriage, which he opposed in the 2008 election.

For more information, please visit The Wall Street Journal and The Washington Post.

HuffPo: Undocumented Workers Have ‘Negligible’ Impact on Wages

12 April 2012

Hear that? That’s the sound of holes being poked in one of the most common arguments for pushing undocumented workers out of America.

Undocumented workers have a “negligible impact” on the wages of documented workers that work at the same firm, according to a paper released in March by the Federal Reserve Bank of Atlanta. Documented workers at firms that also employ undocumented workers earn 0.15 percent less — or $56 less per year on average — than they would if they worked at a firm that does not employ undocumented workers, according to the study.

In fact, workers in retail and leisure and hospitality actually earn slightly more money when their firms hire undocumented workers, since having more employees allows them to specialize, according the paper.

Some anti-immigration activists argue that ridding the country of undocumented workers would help to solve the nation’s unemployment problem. There are currently 11.5 million undocumented immigrants in the U.S.: a number that has stayed roughly stable over the past year, according to the Department of Homeland Security.

But the millions of undocumented immigrants aren’t the reason the unemployment rate still remains elevated and many job-seekers can’t find work, Julie Hotchkiss, an economist at the Atlanta Fed that co-authored the paper, said in an interview with the Richmond Times-Dispatch.

“There have been claims by various proponents of state legislation and immigration reform that if we institute these laws that would just get rid of all of our undocumented workers, that our unemployment problem would go away, that the unemployment rate would just plummet,” Hotchkiss told the Richmond Times-Dispatch in a video interview on Wednesday. “What we’re finding is there seems to be no direct displacement effect of documented workers when firms hire undocumented workers.”

It’s not just anti-immigration advocates that blame undocumented workers for the nation’s woes, many job-seekers say they believe that it would be easier for them to find a job if there were fewer undocumented immigrants. More than 60 percent of Americans support a state law that would shut down businesses that repeatedly hire undocumented workers, according to a Rasmussen poll last year.

Conservative politicians have proposed severe measures to crack down on illegal immigration as unemployment remains high and real wages fall.Arizona has led the way by enacting a law in 2010 that authorizes police officers to ask for proof of citizenship from anyone and detain suspected illegal immigrants.

Illegal immigration has been a hot-button issue on the presidential campaign trail as well. Mitt Romney, the likely Republican presidential nominee, has called for the “self-deportation” of illegal immigrants, and Ron Paul and Rick Santorum have said they would drastically increase deportations.

District Judge Allows Sex Discrimination Class Action Against Bayer to Proceed

11 April 2012

Last week, New Jersey U.S. District Judge Dennis Cavanaugh denied Bayer Corp.’s motion to strike class allegations and partially dismiss Barghout’s (plaintiffs’) amended second complaint in a $100 million sex discrimination suit. Despite presenting a strong legal analysis regarding potential problems with class certifications, Judge Cavanaugh ruled that Bayer’s argument (that the allegedly amorphous claims conflicted with the U.S. Supreme Court’s Wal-Mart Stores, Inc. v. Dukes decision) was premature and was not appropriate at that point of the case.

The employee-plaintiffs (women who work or used to work for Bayer HealthCare Pharmaceuticals and Bayer HealthCare Consumer Care) originally filed their case in March 2011 and filed their second amended complaint in July. The plaintiffs alleged that Bayer engaged in company-wide discrimination against female employees. Plaintiffs also claimed that Bayer itself recognized that there was a dearth of women in leadership positions in the company.

In Dukes, female employees of Wal-Mart brought a class action sexual discrimination lawsuit in what was the largest civil rights class action in U.S. history. The class action charged that Wal-Mart with discrimination against its female employees in pay, job assignments and promotion in violation of Title VII of the Civil Rights Act of 1964, which prohibits an employer’s refusal to hire or discrimination against any individual with respect to employment compensation, terms, conditions or privileges because of race, color, religion, national origin or gender. The Supreme Court ruled in favor of Wal-Mart, holding that the plaintiffs’ claims lacked commonality under Rule 23(b)(3) of the Federal Rules of Civil Procedure to constitute a class action. The Court, with Justice Antonin Scalia writing for the majority, held that the action could not proceed as any kind of class action suit.

In his decision, Judge Cavanaugh noted, “Although the Dukes court reasoning is binding and relevant to analysis of whether an expansive class of employee-plaintiffs should be certified, its applicability is tenuous as this stage of litigation.” Judge Cavanaugh concluded his decision in stating that it was too early to decide whether or not the plaintiffs could satisfy the applicable requirements of Rule 23.

The plaintiffs’ complaint is a collective action of female employees under the Equal Pay Act and requested at least $100 million in damages.

In addition to seeking to have the class allegations struck, Bayer claimed that the court should toss out the plaintiffs’ disparate impact and Equal Pay Act claims. Yet, Judge Cavanaugh’s ruling stated that the plaintiffs sufficiently pled their disparate impact claims in showing that a facially neutral practice resulted in a discriminatory impact on a Title VII-protected class of citizens. Furthermore, Cavanaugh noted, they identified pay disparities and promotions granted that sufficiently defeated Bayer’s dismissal bid regarding the Equal Pay Act claims.