Appeals Court: Sexual Orientation Not Covered By Missouri's Ban On Sex Discrimination In Employment

In Pittman v. Cook Paper Recycling Corp., (MO App., Oct. 27, 2015), a Missouri appeals court in a 2-1 decision held that the Missouri Human Rights Act does not bar employment discrimination on the basis of sexual orientation. At issue was a hostile work environment claim by a former male employee of a recycling company. Judge Welsh's opinion held:

The clear meaning prohibiting discrimination based upon "sex" under the Missouri Human Rights Act intended by the Missouri legislature concerns discrimination based upon a person's gender and has nothing to do with sexual orientation.

Judge Clayton in a brief opinion concurred with the result only.  Judge Gabbert dissented, saying:

Where our legislature used the broad term “sex,” and that term has been defined in many realms and most recently by the EEOC to include sexual orientation, I prefer to believe that if one is looking to the legislature for guidance, the legislature’s failure to exclude sexual orientation is more telling than its failure to act to include.

Columbia Daily Tribune reports on the decision.

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.

Promissory Estoppel May Prevent Christian Camp From Firing Employee For Living With Her Boyfriend

Trehar v. Brightway Center, Inc.,, (OH App., Oct. 2, 2015), is a suit by a former employee of a Christian youth sports camp who was fired for moving in with with her boyfriend.  Plaintiff Jennifer Trehar whose job involved writing grant proposals and engaging in various sorts of promotional work was told in a letter from the camp's board: "We simply cannot reconcile our affections and appreciation for you with our belief that living together outside marriage is forbidden by the Scriptures."  In a unanimous decision the appeals court reversed the trial  court's grant of summary judgment to the camp, finding that Trehar sould be able to move ahead with her claim of promissory estoppel:

Griffin is Brightway’s president and CEO. He stated that his employees should rely on his statements and promises. In construing the evidence in Trehar’s favor, reasonable people could conclude that Trehar’s boss and the president of the company induced Trehar to believe that no adverse employment action would result from her move.

Columbus Dispatch reports on the decision.

Counter-Letter Urges Obama To Retain 2007 Office of Legal Counsel Interpretation of RFRA

As previously reported, last month a coalition of 130 religious, civil rights and advocacy organizations sent a letter to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum that interpreted RFRA to require exemptions for religiously-affiliated organizations from non-discrimination provisions in federal grant programs. Now a counter-letter dated Sept. 10 and signed by 70 religious leaders and faculty at religiously-affiliated colleges (full text) has been sent to the President urging him to retain "basic principles and provisions of federal law that support religious staffing by religious organizations." The letter reads in part:

We are grateful that you have welcomed “all hands” to contribute to federal social policy by maintaining and refining the federal faith-based initiative and its rules that provide for equal opportunity for faith-based organizations to collaborate with government in serving community needs. Making it more difficult for faith-based organizations to join those partnerships would undermine, rather than burnish, your commitment to effective and flourishing “all hands” partnerships.

Mirror of Justice reports on the letter.

Constable Applicant Can Sue Over Religious and Ideological Questions In Job Interview

In Texas, County Constable is an elected position, but where a sitting Constable resigns more than a year before the next scheduled election county commissioners may appoint a new constable to serve until the next election.  In Lloyd v. Birkman, (WD TX, Sept. 2, 2015), a Texas federal district court in a 106-page opinion held that one of the unsuccessful candidates for appointment as County Constable in Williamson County, Texas could pursue various claims against the county and individual commissioners because of the questions asked during the interview process for the position. According to the court:

During the interviews, the candidates received questions on their positions on abortion and same-sex marriage, their political affiliations, the churches that they attended, and their political ideology.

While dismissing some of plaintiff's claims, the court permitted plaintiff to move ahead with his claim that the County committed an unlawful employment practice under Title VII and Texas Commission on Human Rights Act by refusing to hire him because of his religious association, moral views, and ethical beliefs. The court held that the "elected official" exemption does not apply. The court also permitted plaintiff to move ahead against the county and individual defendants on his First Amendment retaliation, freedom of expression and association claims; his 14th Amendment Equal Protection claims; and Texas Constitutional claims. The court rejected plaintiff's violation of privacy claims.

EEOC Sues National Federation of the Blind For Refusing To Accommodate Employee's Sabbath Observance

The EEOC announced last week that it has filed suit in a Maryland federal district court against the National Federation of the Blind for religious discrimination.  The EEOC summarizes the charges:

Joseph R. Massey II is a practicing Hebrew Pentecostal, a Christian denomination, and abstains from working from sunset Friday to sunset Saturday based on his sincerely-held religious beliefs.  The National Federation of the Blind hired Massey for a bookkeeping position at its Baltimore office in November 2013.  In January 2014, the Federation told Massey he had to work certain Saturdays.  Massey explained he could not work Saturdays due to his religious faith and suggested alternatives such as working on Sundays or working late on week nights other than Fridays.  EEOC charged that the Federation refused to provide any reasonable accommodation and instead fired Massey because he could not work Saturdays due to his religious beliefs.

130 Organizations Urge Obama To Rescind 2007 Justice Department Interpretation of RFRA

Yesterday a coalition of 130 religious, civil rights and advocacy organizations sent a letter (full text) to the President urging that the Justice Department's Office of Legal Counsel reconsider a 2007 Memorandum interpreting the interaction of the Religious Freedom Restoration Act with non-discrimination provisions in federal grant programs.  The letter reads in part:

[T]he OLC Memo relies on flawed legal analysis and wrongly asserts that RFRA is “reasonably construed to require” a federal agency to categorically exempt a religiously affiliated organization from a grant program’s explicit statutory nondiscrimination provision, thus permitting the grantee to discriminate in hiring with taxpayer funds without regard to the government’s compelling interest in prohibiting such discrimination....

...[S]ome have cited the OLC Memo in arguing that RFRA should broadly exempt religiously affiliated contractors from the nondiscrimination requirements in Executive Order 11246, including those you added just last year that bar government contractors from discriminating against LGBT workers. And, some are trying to extend its reach beyond the context of hiring: Several grantees and contractors have cited the OLC Memo to support their arguments that the government should create a blanket exemption that would allow them to refuse to provide services or referrals required under those funding agreements, specifically in the context of medical care for unaccompanied immigrant children who have suffered sexual abuse. 

 ADL and Americans United each issued its own press release on the letter.

Guam Legislature Passes Marriage Equality and LGBT Employment Discrimination Laws

Pacific Daily News reports that the Guam legislature yesterday passed the Guam Marriage Equality Act (full text), aligning the U.S. Territory's laws with the a district court's decision in June specifically striking down Guam's same-sex marriage ban. (See prior posting.)

The legislature this week also passed the Guam Employment Nondiscrimination Act of 2015 (full text), adding bans on employment discrimination based on gender identity or expression; sexual orientation; and veteran or military status. The law includes an exemption for religious and educational institutions that are exempt from the religious discrimination provisions of Title VII of the 1964 federal Civil Rights Act. HRC Blog has more on the new law.

Suit Challenges Prof's Firing For Becoming Pregnant Out of Wedlock

A former Assistant Professor of Exercise Science at Northwest Christian University in Eugene, Oregon filed a discrimination suit this week after she was fired for becoming pregnant out of wedlock.  The complaint (full text) in Richardson v. Northwest Christian University, (OR Cir. Ct., filed 8/4/2015), contends that when plaintiff Coty Richardson became pregnant by her partner with whom she has had a 12 year relationship. the University gave her an ultimatum:

she had to either (1) proclaim the pregnancy a mistake and dissociate with the father of her child or (2) marry him immediately and provide proof of their union. Dr. Lindsay [Vice President for Academic Affairs] told Ms. Richardson that having a child out of wedlock while still continuing a relationship with the father was inconsistent with the University’s core values and mission and set a “bad example” for the students. When Ms. Richardson refused the University’s demands and requested privacy in her personal life, she was locked out of the University and her employment was terminated.

Among other things, the suit claims violations of Oregon's ban on employment discrimination on the basis of  pregnancy, gender and marital status. It also claims discrimination on the basis of religion, i.e. her belief that it is appropriate for her, as a Christian, to wait until she and her partner are financially, practically, and emotionally ready for marriage. Wall Street Journal reports on the lawsuit.

Sportscaster Sues Fox Sports Claiming Religious Discrimination

Yesterday former NFL player and sportscaster Craig James filed suit in a Texas state court against Fox Sports and various of its affiliates claiming religious discrimination in violation of the Texas Commission on Human Rights Act and breach of contract.  The complaint (redacted full text) in James v. Fox Sports, Inc., (TX Dist. Ct., filed 8/3/2015), claims that James' firing in September 2013, just days after he was hired by Fox, was "due to a short Christianity-focused statement" opposing same-sex marriage on Biblical grounds that he made during a political debate when he ran unsuccessfully for United States Senate some 18 months earlier. Liberty Institute has more information on the case along with links to depositions, the demand letter and media coverage.  According to The Wrap yesterday, Fox Sports issued a statement saying in part:

... Craig James is a polarizing figure in the college sports community and the decision not to use him in our college football coverage was based on the perception that he abused a previous on-air position to further a personal agenda.  The decision had nothing to do with Mr. James’ religious beliefs and we did not discriminate against Mr. James in any way.

James, in 2009 while at ESPN, was involved in a controversy stemming from his comments about the Texas Tech coach Mike Leach's treatment of James' son. (Background.) James resigned from ESPN in Dec. 2011 to run for the U.S. Senate. [This paragraph has been corrected. An earlier more cryptic version gave an incorrect impression.]

British Employment Tribunal Vindicates Christian Woman Fired For Comments About Homosexuality

In Mbuyi v. Newpark Childcare (Shepherds Bush) Ltd., (Empl. Trib., June 4, 2015), a British Employment Tribunal in Watford held that Sarah Mbuyi, a 31-year old nursery assistant who was a Belgian national and and evangelical Christian, was the victim of religious discrimination when she was fired because of a conversation she had with a lesbian co-worker who was in a civil partnership. In the course of the conversation, Mbuyi told her co-worker that she believes homosexuality is a sin.  The conversation upset the co-worker sufficiently that she asked to be transferred to a different room where she would not be working with Mbuyi. The Tribunal concluded that under the circumstances the firing of Mbuyi was a disproportionate response.  The Tribunal said in part:

The respondent was not anti-Christian.... The issues in this case arose out of the claimant's belief that homosexuality is a sin.... It is a belief worthy of respect in a democratic society, is not incompatible with human dignity and is not in conflict with the fundamental rights of others.  Whilst some may dispute those propositions, we are considering here the belief itself.  When, whether and how such belief maybe manifested, however, is one of the issues in this case, given the inherent interplay with the right not to be discriminated against because of sexual orientation.

The decision has been widely reported in the British media. (The Guardian, Mirror, Christian Concern, Christianity Today, National Secular Society).

Madison, Wisconsin Bars Discrimination Against Atheists, Agnostics, and Nonbelievers

As reported recently by AP, last month the city of Madison, Wisconsin enacted amendments (full text) to its Equal Opportunities Ordinance adding "nonreligion"  to the protected classes covered by its employment, housing and public accommodation anti-discrimination law (final action 3/31, enactment date 4/9). The ordinance defines "nonreligion" as "atheism, agnosticism, or other disbelief or lack of belief in the existence of God or gods."  Under the ordinance, non-profit religious organizations can still give preference to members of their own, or similar, denominations in hiring for instructional or policy-making positions, including hiring chaplains or counselors. According to a Freedom From Religion Foundation attorney, one of the reasons for enactment of the amendments is the recent increase in Madison of religiously-owned housing.

Court Says Sun Worshipping Atheism Is Not A "Religion"

In Copple v. California Department of Corrections and Rehabilitation, (CA App., March 24, 2015), a California appeals court affirmed a trial court decision holding that Sun Worshipping Atheism is not a "religion" for purposes of California's Fair Employment and Housing Act.  Plaintiff Marshel Copple who had been hired as a correctional officer claimed that the California Department of Corrections and Rehabilitation’s requirement that he work overtime violated a tenet of his belief system that he sleep at least eight hours per day.  He sued for religious discrimination and harassment, failure to accommodate religious practices, retaliation based on his religion, and constructive discharge for his religious practices. The court held that Sun Worshipping Atheism, which Copple created and of which he is the only member does not address fundamental and ultimate questions. Instead it merely deals with living a healthy lifestyle. Raw Story last week reported on the decision.

Former NYPD Officer Sues Claiming Anti-Semitic Harassment From Co-Workers

JNS.org reported yesterday on a federal lawsuit filed last month by a former New York City Police Department officer charging that he was forced out of his position by six years of anti-Semitic comments and harassment from fellow officers.  The 26-page complaint (full text) in Attali v. City of New York, (SD NY, filed 1/21/2015), says that the abuse became particularly bad after plaintiff was assigned to the World Trade Center command in 2011.  It alleges, among other incidents, that beginning in January 2013:

Plaintiff ATTALI's co-workers, repeatedly, and without provocation, vandalized Plaintiff's locker at the WTC Command by writing hateful and abusive language and messages consisting of swastikas, newspaper clippings of pork, ham, salami and bacon advertisements, the word "DIRTY JEW" carved into an orange sticker and the following letters cut out of various newspaper headlines: "HAIL HITLER."

Kansas Governor Eliminates Anti-Discrimination Protection For LGBT State Employees

Yesterday Kansas Gov. Sam Brownback issued executive orders narrowing employment discrimination protections for state employees.  As reported by the Wichita Eagle and a press release from the governor's office, Brownback replaced former Gov. Kathleen Sebelius' employment practices order with a new one.  The new executive order eliminates the former ban on state employment discrimination on the basis of sexual orientation and gender identity, while continuing to ban various other types of discrimination.  According to the Governor:

This Executive Order ensures that state employees enjoy the same civil rights as all Kansans without creating additional ‘protected classes’ as the previous order did, Any such expansion of ‘protected classes’ should be done by the legislature and not through unilateral action.

Suit Challenges Dismissal For Praying At Work By Speaking In Tongues

The New York Daily News reports on a federal lawsuit filed in Brooklyn yesterday by a former New York Department of Environmental Protection police officer.  Plaintiff Jerome Boswell was taken in handcuffs to a hospital for psychiatric evaluation and dismissed from his position after he began to pray by "speaking in tongues."  Boswell, a Pentecostal Christian, was discussing with a fellow employee their lack of a labor contract.  Boswell said he was leaving the issue to God, and his co-worker responded that they had no contract because God is not powerful.  Boswell took this as blasphemy, told his co-worker to repent and began the prayer in question. Boswell's lawsuit asks for back pay and $2 million in punitive damages for religious and perceived mental illness discrimination.

Dismissal of Atlanta Fire Chief Over Anti-Gay Book Riles Religious Conservatives

As reported by GA Voice, last week Atlanta Mayor Kasim Reed dismissed Fire Chief Kelvin Cochran for publishing a book reflecting Cochran's anti-gay views, without discussing the matter with the mayor. Reed says that the publication is inconsistent with the city's policy that bars discrimination, among other things, on the basis of sexual orientation, and casts doubt on Cochran's ability to lead a diverse work force.  However yesterday's New York Times reports that the firing has generated a backlash:

[C]onservatives and religious organizations were outraged. The Georgia Baptist Convention has organized an online petition demanding that the firing be reversed. The evangelist Franklin Graham, in an opinion piece for a religious news site, called Mr. Cochran the “latest target of politically correct bullying against Bible-believing Christians.”

The firing may give impetus to a religious freedom bill that has again been proposed in the Georgia legislature. Summarizing the situation, Mayor Reed said:  "I hired him to put out fires. Not to create them."

Employment Discrimination Claim Filed By Muslims Against Hertz In Minneapolis

The Minneapolis Star-Tribune reports on an employment discrimination lawsuit filed Tuesday against Hertz Corp. by five Somali-American Muslims and an Ethiopian Muslim, all of whom were fired in 2007 from their jobs cleaning and servicing Hertz vehicles at Minneapolis-St. Paul International Airport after a dispute about overtime. The suit claims that Hertz managers interrupted their prayers, regularly demeaned their religion and imposed arbitrary prayer times and rules on Muslims. The EEOC issued plaintiffs a right-to-sue letter in September after years reviewing complaints.

In Reversal, Kentucky Denies Tax Incentives To Noah's Ark Theme Park

The Louisville Courier-Journal reported yesterday that Kentucky's Tourism, Arts and Heritage Cabinet has now turned down a request by a proposed Noah's Ark theme park for $18 million in sales tax rebate incentives, despite earlier preliminary approval of the request. The state says that Ark Encounter has changed it position on hiring and now intends to discriminate in hiring on the basis of religion. The state also says that the park has evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. The state's Tourism Secretary said:

State tourism tax incentives cannot be used to fund religious indoctrination or otherwise be used to advance religion.

Attorneys for Ark Encounter say that federal and state law allow it, as a religious institution, to hire on the basis of religion, and that refusing to allow it to participate in tax incentives amounts to unconstitutional viewpoint discrimination. They say they will have no choice but to sue. (See prior related posting.)

Nuns Volunteering For Red Cross Were Not "Employees" Under Title VII

In Marie v. American Red Cross, (6th Cir., Nov. 14, 2014), the U.S. 6th Circuit Court of Appeals rejected Title VII as well as 1st and 14th Amendment claims by two Catholic nuns who were dismissed from their long-time volunteer positions as disaster relief workers for the American Red Cross and the Ross County (Ohio) Emergency Management Agency.  The court rejected plaintiffs' Title VII religious discrimination claims because "their volunteer relationship does not fairly approximate employment and is not covered by Title VII."

The court also concluded that plaintiffs had not produced evidence to support their 1st Amendment claim that they were terminated in retaliation for expressing their traditional Catholic beliefs and wearing traditional habits, rosaries, and crosses. Nor did they show disparate treatment in violation of their equal protection rights. In addition, the court found that neither the American Red Cross nor its district executive director were engaged in "state action."