EEOC Sues Over Job Denial To Pentecostal Who Rejected Dress Code Mandate

On Thursday, the EEOC announced that it had filed a religious discrimination suit against the Michigan-based Akebono Brake Corp.  The complaint charges that the company's dress code requires all employees to wear pants.  The company refused to hire as a temporary laborer Clintoria Burnet, a member of the Apostolic Faith Church of God and True Holiness, whose religious beliefs require her as a woman to wear skirts or dresses and not pants. The company failed to offer any religious accommodation to meet Burnet's Pentecostal Christian beliefs.

EEOC General Counsel Will Leave In December

According to the National Law Journal, earlier this week P. David Lopez announced that he will resign in December as general counsel of the U.S. Equal Employment Opportunity Commission. Lopez, who has held his position for six and one-half years, is the longest-serving general counsel in the agency's history.  His term was scheduled to end in 2018.  The EEOC enforces U.S. employment discrimination laws, including laws barring religious discrimination in employment.

Supreme Court Term Opens With Action On Cert. Petitions and More

The U.S. Supreme Court opened its October 2016 Term on Monday, with the first oral arguments this morning. Here is a round-up of a number of developments leading up to, and occurring on, opening day.

Last Thursday, in advance of opening day, the Court granted review in eight cases (Order List), one of which was McLane Co. v. EEOC, No. 15-1248 (cert. granted limited to one question, 9/29/2016). (SCOTUSblog case page).  While the case involves EEOC charges of gender and age discrimination, the procedural issue which the court will decide may affect EEOC religious discrimination cases as well.  At issue is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, or whether an appellate court should instead give more deference to the district court's decision. SHRM reports on the case.

As reported by the National Law Journal, on Sunday, the annual Red Mass was held (photos) at the Cathedral of St. Matthew the Apostle in Washington, D.C.  It was attended by Chief Justice Roberts, and Justices Kennedy, Thomas, Alito and Breyer.  The late Justice Scalia's son gave a reading from the Bible at the ceremony.

On Monday, the Court issued its usual lengthy opening-day list of certiorari denials. This year's list of cases covered 64 pages of the 71-page Oct. 3 Order List.  Among the cases in which review was denied was Klingenschmitt v. United States, (Docket No. 15-1445). In a decision by the Court of Federal Claims (see prior posting) which was summarily affirmed by the Court of Appeals for the Federal Circuit, the court rejected claims by a Navy Chaplain that he was that he was wrongfully discharged from the Navy. The refusal to recertify Klingenschmitt as a chaplain culminated a long-running battle between him and the military over military regulations requiring chaplains to deliver inclusive prayers at military event.

EEOC Sues Over Hospital's Requirement For Clergy Certification To Grant Religious Accommodation

AP reports that the EEOC filed a religious discrimination lawsuit in a Pennsylvania federal district court last Thursday charging that Erie (PA)'s St. Vincent Hospital wrongfully fired six employees who refused for religious reasons to get flu shots.  At issue is the hospital's requirement that for employees to obtain religious exemptions from the requirement, they must present a certification from a member of the clergy.  The six employees who did not provide proof of their religious beliefs were adherents of  Russian Orthodox, Independent Fundamental Baptist, Christian mysticism, Methodist and nondenominational Christian faiths. [Thanks to Tom Rutledge for the lead.]

Company Settles With EEOC Over Firing of Seventh Day Adventist

The EEOC announced last week that North Carolina-based Greenville Ready Mixed Concrete, Inc., has agreed to a $42,500 settlement in the EEOC's suit (see prior posting) against it for firing a Seventh Day Adventist employee who refused a Saturday work assignment. The company has also agreed to a 5-year consent decree requiring it to create an anti-discrimination policy, engage in employee training, post notice about the lawsuit and submit periodic reports to the EEOC.

EEOC Sues Over Firing of Muslim Employee

The EEOC announced this week that it has filed a Title VII religious discrimination lawsuit against KASCO, a St. Louis-based company that manufactures and sells butcher supplies and meat processing equipment. The press release explains:

According to EEOC's lawsuit, Latifa Sidiqi had worked for KASCO since 2008, most recently as a buyer. After she began more seriously practicing her religion in 2012, a supervisor and others began making derogatory comments about her fasting during Ramadan, wearing a hijab, and her native country, Afghanistan. The agency charged that Sidiqi was fired during Ramadan 2013 because of her religion and national origin, and because she complained about her supervisor's treatment.

RFRA Protects Funeral Home's Gender Stereotyping of Transgender Employee

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., (ED MI, Aug. 18, 2016), a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge by the EEOC that the funeral home engaged in gender stereotyping when it dismissed a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a previous opinion in the case, the court held that Title VII does not bar discrimination on the basis of gender identity.  However the court permitted the EEOC to proceed on the theory that the employee was dismissed for refusing to comply with the funeral home's dress code for male employees.  Citing Hobby Lobby, the court held that the funeral home can assert religious rights under RFRA. The court then said:

Rost [the funeral home's owner] believes “that the Bible teaches that God creates people male or female.”... He believes that “the Bible teaches that a person’s sex is an immutable God-given gift and that people should not deny or attempt to change their sex.”... Rost believes that he “would be violating God’s commands” if he were to permit one of the Funeral Home’s funeral directors “to deny their sex while acting as a representative of [the Funeral Home]. This would violate God’s commands because, among other reasons, [Rost] would be directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift.” ...

The court went on to say that even if the government has a compelling interest in preventing discrimination, it has not chosen the least restrictive means of doing so.  It explained:

If the EEOC truly has a compelling governmental interest in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral Home, couldn’t the EEOC propose a gender-neutral dress code (dark-colored suit, consisting of a matching business jacket and pants, but without a neck tie) as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here?

Detroit News reports on the decision. [Thanks to Jeff Pasek for the lead.]

EEOC Sues Over Firing of Seventh Day Adventist

The EEOC announced yesterday that it has filed suit against Greenville Ready Mix Concrete, Inc., a North Carolina based company, for refusing to accommodate the religious observances of a Seventh Day Adventist employee.  Michael Cole, a truck driver for the company, was baptized as a Seventh-Day Adventist in February 2014, after which he asked not to work on Saturdays.  The company nevertheless scheduled him for a Saturday, and fired him when he refused.

EEOC Sues Claiming Inadequate Accommodation of Refusal To Take Flu Shot

The EEOC announced last week that it has filed suit in a Massachusetts federal district court against Baystate Medical Center in Springfield, Massachusetts for failing to accommodate an employee who, for religious reasons, refused to get a flu vaccination.  The medical center allows employees with religious objections to instead wear a mask at work.  Stephanie Clarke, a recruiter in Baystate's human resources department, initially wore the mask, but job applicants could not understand her when they spoke to her. So she removed her mask and requested Baystate to find a different accommodation. Instead Baystate put her on indefinite, unpaid leave, and when she complained it terminated her employment. EEOC argues that an accommodation under Title VII must both respect the employee's religious beliefs and permit her to do her job effectively. Here she was terminated because she complained about religious discrimination. BNA Daily Labor Report has more on the suit.

Suit Against Jeweler Says Employee Was Fired For Saying That Jews Killed Jesus

The New York Daily News last week reported on a lawsuit filed in federal district court in Manhattan by a former marketing executive at the upscale jeweler, Tiffany & Co.  Kristin Rightnour, a devout Catholic, says she was reprimanded and placed on probation for telling a Jewish colleague, in a conversation about Easter, that Catholics believe the Jewish people killed Jesus. Then, she alleges, she was skipped over for promotion and eventually fired after she filed a complaint with the EEOC.

EEOC Sues Hospital Over Arbitrary Deadline For Religious Accommodation Requests

The EEOC announced today that it has filed a religious discrimination lawsuit against Mission Hospital based in Asheville, North Carolina.  At issue are requests by 3 employees for religious exemptions from the hospital's requirement that all employees receive the flu vaccine by December each year.  The hospital allows religious exemptions, but requires that the request be made by Sept. 1. The employees here made their requests after the deadline. The requests were denied and the employees were fired.  According to the EEOC:

An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation. An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden.

EEOC Files 2 Suits Alleging Title VII Already Covers Sexual Orientation Discrimination

The EEOC announced yesterday that it has filed its first two suits in federal court testing its theory that existing laws barring discrimination on the basis of sex cover discrimination on the basis of sexual orientation. In an administrative decision under Title VII handed down in July, the EEOC held that "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." (See prior posting.) Yesterday's suits build on that.  In EEOC v. Scott Medical Health Center, P.C., (WD PA, filed 3/1/2016), the complaint (full text) alleges that a gay male employee's manager repeatedly directed anti-gay epithets at him, as well as other highly offensive comments about his sexuality and sex life. In the other suit, EEOC v. Pallet Companies, (D MD, filed 3/1/2016), the complaint (full text) alleges that a lesbian employee was harassed by her supervisor with comments about her sexual orientation and appearance, and was fired in retaliation for complaining. BuzzFeed reports on the lawsuits.

EEOC Releases Data On Complaints Received

The EEOC last week released its Fiscal Year 2015 Enforcement and Litigation Data. In fiscal 2015, the agency received 89,385 charges of workplace discrimination.  Of those, only 3,502 (3.9%) charged religious discrimination.  A further breakdown of the data shows that the EEOC found no reasonable cause in 68% of the cases of alleged religious discrimination.

National Federation of Blind Settles EEOC's Religious Accommodation Lawsuit

The EEOC announced Monday that the National Federation of the Blind has settled a religious discrimination lawsuit brought by the Commission on behalf of a Hebrew Pentecostal bookkeeper who was refused religious accommodation.  NFB fired Joseph R. Massey II after telling him that he must work on certain Saturdays.  NFB refused Massey's request to instead work Sundays or late on week nights. Under the settlement NFB will pay $25,000 in damages, and agreed to an injunction against religious discrimination, adoption of a non-discrimination policy and training of managers and supervisors.

EEOC Seeks Comment On Proposed Guidance On Retaliation

The EEOC yesterday announced that it is seeking public comment on a proposed Enforcement Guidance on Retaliation and Related Issues.  The 76-page Guidance document (full text) includes examples of retaliatory conduct, remedies and best practices for employers.  In connection with religious discrimination in employment, the Guidance says in part:

[P]ersons requesting religious accommodation under Title VII are protected against retaliation for making such requests.  Although a person making such a request might not literally “oppose” discrimination or “participate” in a complaint process, s/he is protected against retaliation for making the request.

EEOC Releases Its 2015 Performance Report

The U.S. Equal Employment Opportunity Commission yesterday released its 2015 Performance and Accountability Report. (Full text.) The lengthy report focuses on how well the agency has implemented three performance objectives in combating employment discrimination: strategic law enforcement; education and outreach; and excellent and consistent service through a diverse workforce.

Day Care Teachers Tell EEOC Their Firing Over Treatment of Transgender Child Was Religious Discrimination

At a news conference yesterday, high-profile Houston, Texas attorney Andy Taylor said that he has filed a discrimination complaint with the EEOC on behalf of the manager of a day care center who says she was fired because of her treatment of a 6-year old transgender child, and on behalf of her co-worker who was also fired.  As reported by KPRC News and the Houston Chronicle, Christian author Madeline Kirksey was fired from her Children's Lighthouse Learning Center position after she refused to comply with the instructions of the girl's male same-sex parents who said that the child, who had enrolled at the beginning of the year as a girl, should now be treated as a boy and called by a new masculine name.  Kirksey said that her religious beliefs made her approval of the change impossible.  She also contended that she had a duty to protect the child from possible bullying, and objected to the change being made without parents of others in the class first being informed.  At the press conference, attorney Taylor said in part:

To inflict upon a little 6-year-old girl the heavy decision of her sexual identity is nothing short of child abuse..... Can you only imagine the reaction of a couple of dozen 6-year-olds when they learn that Sally is all of a sudden Johnny? They may think this is a cruel game of opposite day. And are we going to have little girls running into boys' restrooms and little boys running into girls restrooms?

A spokesman for the Learning Center said that Kirksey and her co-worker were fired for other reasons and that their attorneys are misrepresenting the facts of the case.

Science Faculty Charge University With Discrimination Against Muslims

According to yesterday's New Orleans Times-Picayune, a faculty member in the Department of Natural Sciences at Southern University at New Orleans has filed a complaint with the EEOC charging that the University discriminated against Muslim faculty and job applicants.  Professor Ibrahim Ekaidi and a Muslim colleague, Bashir Atteia, were removed from a hiring committee because they collaborated on the ratings they gave to certain candidates. They rated two Muslim candidates for positions in department among the three highest; however other members of the hiring committee also ranked them high.  The chairman of the department removed the names of the two applicants from the list of those being considered and denied them interviews. When Ekaidi and his colleague protested their removal from the committee, the department chair recommended that they resign from the faculty.

EEOC Sues Health Care System For Denying Religious Accommodation

The EEOC announced that it filed suit yesterday against the Minnesota-based North Memorial Health Care for withdrawing a job offer to a Seventh Day Adventist nurse after she requested an accommodation for religious practices.The federal court lawsuit seeks damages for nurse Emily Sure-Ondara, as well as an injunction barring retaliation against employees or job applicants who request religious accommodations.

EEOC Complaint Alleges Failure To Accommodate Muslim Flight Attendant

According to Michigan Radio, a complaint was filed this week with the EEOC by  Charee Stanley, a Muslim flight attendant now on unpaid leave from ExpressJet.  When Stanley converted to Islam two years ago, she arranged for fellow flight attendants to serve alcohol on her behalf.  However last month another employee filed a complaint that this arrangement required the employee to perform extra work. This led to the airline placing Stanley on leave. The same person allegedly made comments to Stanley about her head covering and expressed anti-Muslim sentiments to her. Stanley seeks reasonable accommodation of her religious beliefs.