Muslim Palestinian Teacher's Discrimination Claims Survive Motion To Dismiss

In Hashem v. Hunterdon County, (D NJ, Sept. 20, 2016), a New Jersey federal district court refused to dismiss certain claims by a New Jersey high school history teacher that her school and her supervisors discriminated and retaliated against her on the basis of religion, race and national origin.  The teacher, Sireen Hashem, a Muslim Arab of Palestinian descent, was reprimanded for showing a video, at the suggestion of another teacher who had also shown it, featuring the young Nobel laureate Malala Yousafzai, the Pakistani girl's education advocate. Subsequently Hashem's contract was not renewed.  According to the court:

Hashem alleges that she was instructed not to "teach current events in the same manner as her non-Arab, non-Palestinian and non-Muslim colleagues." ...On a separate occasion, Hashem was allegedly told "not [to] mention Islam or the Middle East in her class, and that she "should not bring her culture, life experience or background into the classroom."

While dismissing a number of her claims, the court allowed the teacher to move ahead with claims for employment discrimination, disparate treatment, retaliation and discriminatory discharge.

Two Recent Cases Charging Religious Discrimination In Employment

Two recent lawsuits charging religious discrimination in employment are in the news.  In Bowling Green, Kentucky, a former firefighter sued claiming questioning and harassment over his atheist beliefs as well as over his non-conformity to gender norms.  The complaint (full text) in Queen v. City of Bowling Green, (KY Cir. Ct., filed 8/10/2016) contends that plaintiff was subjected to a hostile work environment on the basis of his religious beliefs in violation of Kentucky law. WKU Herald reports on the lawsuit.

Separately, in Dallas, Texas, last Wednesday an Orthodox Jewish woman filed suit against the county after her job offer as data manager with the Dallas County sheriff's office was rescinded.  The sheriff's office acted after plaintiff, Isabel Balderas, told them that she would need an accommodation allowing her to leave 30 minutes early on Fridays during the winter months in order to be home for the beginning of the Sabbath. The sheriff's office said that the data manager position requires that the person be on call 24/7. Dallas News reports on the lawsuit.

Fired Lobbyist Sues Catholic Advocacy Group For Religious Discrimination

Albuquerque Journal reports on a religious discrimination lawsuit filed last Thursday against the non-profit Catholic advocacy group CHI St. Joseph’s Children and against Allen Sanchez, the executive director of the New Mexico Council of Catholic Bishops.  Plaintiff Miguel Gómez worked as a lobbyist and policy advisor for the advocacy group from 2010 until he was fired earlier this year.  Gomez claims he was fired because Sanchez discovered he is not a Catholic, discovered Gomez considers abortion sometimes morally permissible and had encouraged his pregnant girlfriend to have an abortion.  The suit claims that because CHI is not affiliated with the Archdiocese of Santa Fe, it is subject to the prohibition on religious discrimination in employment found in federal and New Mexico law.

District Court Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Matavka v. Board of Education of J. Sterling Morton High School District 201, (N.D. Ill. 2016, Aug. 1, 2016), an Illinois federal district court dismissed a Title VII complaint by a former school employee alleging severe anti-gay harassment from his coworkers and supervisors.  The court indicated that it was required to follow the recent 7th Circuit decision in Hively v. Ivy Tech Comt. Coll that held Title VII does not cover discrimination on the basis of sexual orientation. (See prior posting.)  However the district judge expressed qualms about that conclusion similar to concerns expressed by two 7th Circuit judges in Hively.  Cook County Record reports on the decision.

Ministerial Exception Claim Requires Case-Specific Factual Analysis

In Collette v. Archdiocese of Chicago, (ND IL, July 29, 2016), an Illinois federal district court refused to dismiss an employment discrimination suit brought by plaintiff who for 17 years was employed as the Director of Worship and Director of Music at Holy Family Parish in Inverness, Illinois.  He was dismissed when it was learned he was planning to marry his same-sex partner.  When he sued claiming violations of federal, state and local law, defendants moved to dismiss on the basis of the ministerial exception doctrine.  They argued that he should be seen as a "ministerial" employee based solely on his titles. The court refused to dismiss solely on the pleadings, holding that whether plaintiff is a "ministerial" employee requires a fact-specific analysis.

7th Circuit Reluctantly Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, (7th Cir., July 28, 2016), the U.S. 7th Circuit Court of Appeals adhered to its past precedent and held that Title VII of the 1964 Civil Rights Act does not cover employment discrimination on the basis of sexual orientation. However two of the three judges (Judge Rovner who wrote the opinion and Judge Bauer) apparently did so hesitantly, joining in the lengthy portions of the opinion that review the anomalies produced by this conclusion.  They said in part:

As things stand now, ... our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up— but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight....

In addition to the inconsistent application of Title VII to gender non‐conformity, these  sexual orientation cases highlight another inconsistency in courts’ applications of Title VII to sex as opposed to race....  [C]ourts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship..... But ... Title VII ... has not protected women employees who are discriminated against because of their intimate associations with other women, and men with men....

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...; many of the federal courts to consider the matter have stated that they do not condone it...; and this court undoubtedly does not condone it.... But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent....

Judge Ripple concurred in the outcome, but did not join those part of the opinion expressing doubt about the continued viability of the past precedent.  The decision came in the case of a part-time adjunct professor at a community college who claimed that she was denied a full-time position. Indy Star reports on the decision.

Title VII Is Sole Basis For Claims of Religious Discrimination Against Federal Employee

In Holly v. Jewell, (ND CA, July 11, 2016), a California federal magistrate judge held that Title VII is the sole remedy for discrimination in federal employment.  Neither the First Amendment nor RFRA may be used as the basis for a religious discrimination claim by a federal employee.  In the case, plaintiff who was employed as a maintenance worker at the  San Francisco Maritime National Historic Park was also a Baptist minister.  While on a break and out of uniform, he performed a baptism at the seashore adjoining the park.  He was terminated for this-- though plaintiff also complained that he was questioned about a Bible that he kept to read on breaks.  The court dismissed plaintiff's RFRA claim, holding that recent Supreme Court RFRA decisions have not changed the rule that Title VII is the exclusive remedy for discrimination in federal employment.  The court also dismissed plaintiff's free exercise claim to the extent that it challenges conduct protected by Title VII, but held that plaintiff can file an amended complaint to the extent that he has a First Amendment claim that is separate from his Title VII claim.

Muslim Prof Says Administrators Discriminated In Favor of Nigerian Christians

The New Orleans Times-Picayne reports that on Tuesday a Muslim biology professor at Southern University in New Orleans sued in federal district court claiming that administrators discriminated against him and other Muslim professors in order to get rid of them and hire Nigerian Christians, favored by the school's Chancellor Victor Ukpolo. Plaintiff Ibrahim Ekaidi contends that administrators encouraged non-Nigerian faculty to leave by denying them committee assignments, pay raises promotion and tenure.

Suit Claims Employer Required Watching of Scientology Based Videos

Yesterday's Las Vegas Review-Journal reported on an employment discrimination lawsuit filed April 26 against Real Water, a water bottling company owned by a member of the Nevada legislature.  Former "brand ambassador" Grecia Echevarria-Hernandez, a Catholic, alleged that company owner Brent Jones required her to watch self-improvement courses based on Scientology in order to qualify for raises or promotion.  She refused to do so.  Eventually she was fired. She claims this was because of her differing religious views.

Qualified Immunity For Commissioners Asking Religious Questions To Constable Candidate

In Lloyd v. Birkman, (WD TX, April 1, 2016), a Texas federal district court held that members of the Williamson County (Texas) Commissioners' Court enjoyed qualified immunity in a suit by an unsuccessful candidate for County Constable.  The position was normally an elected one, but the current Constable resigned and the next election was over one year away. Thus under state law the Commissioners had the power to appoint a new Constable to serve until the next general election.  During interviews for the position, Commissioners asked candidates about their church membership, views on gay marriage and abortion, and political ideology. Plaintiff contended that these questions violated his rights of free expression and association, as well as the free exercise and establishment clauses. The court, however, concluded that there was not "clearly established law" that this line of questioning was improper in the context of private interviews for an interim appointment to a normally elective position. (See prior related posting.)

North Carolina Regulates Transgender Bathroom Use and Pre-Empts Local Anti-Discrimination Laws

In a hurriedly-called special session, the North Carolina General Assembly on Wednesday passed House Bill 2 (full text) regulating the use by transgender individuals of bathrooms and changing facilities in public schools and government offices.  The new law also pre-empts local employment and public accommodation anti-discrimination laws. Governor Pat McCrory signed the bill Wednesday night.

The new law requires any multiple occupancy bathroom or changing facility to be designated for and used only by individuals based on the biological sex that is stated on their birth certificate. However special accommodations, such as single occupancy bathrooms, may be made.  The law also declares that

the regulation of discriminatory practices in places of public accommodation is properly an issue of general, statewide concern, such that this Article and other applicable provisions of the General Statutes supersede and preempt any ordinance, regulation, resolution, or policy adopted or imposed by a unit of local government or other political subdivision of the State that regulates or imposes any requirement pertaining to the regulation of discriminatory practices in places of public accommodation.

The law includes a similar declaration regarding local employment discrimination ordinances, but permits local government regulations governing their own employees that are not in conflict with state law.

As previously reported, the hurried passage of the law was designed to prevent a recently enacted Charlotte non-discrimination ordinance from going into effect on April 1. In his signing statement (full text), Gov. McCrory said in part:

The basic expectation of privacy in the most personal of settings, a restroom or locker room, for each gender was violated by government overreach and intrusion by the mayor and city council of Charlotte. This radical breach of trust and security under the false argument of equal access not only impacts the citizens of Charlotte but people who come to Charlotte to work, visit or play. This new government regulation defies common sense and basic community norms by allowing, for example, a man to use a woman's bathroom, shower or locker room.

NBC News reports that many of the state's largest employers are opposed to the new law.

Suit Charges NY Community College With Anti-Semitic Hiring Practices

A lawsuit filed last month in federal district court in New York charges the Brooklyn-based Kingsborough Community College and Stuart Suss (who served variously as its Provost, Vice President for Academic Affairs and Interim President) with discrimination against faculty and faculty candidates whose dress or appearance was obviously Jewish (labeled in the complaint as "Outward Jews").  The complaint (full text) in Lax v. City University of New York, (ED NY, filed 2/16/2016) alleges that in 2000 Jews comprised a large percentage of department chairs and of the college-wide Personnel & Budget Committee, but that since then Suss has engaged in hiring and personnel practices designed to reduce or eliminate the number of outward Jews on the faculty and on the P&B Committee in violation of Title VII and New York state and city anti-discrimination laws. Yesterday's Algemeiner has more on the lawsuit.

Fired Gay Music Director Sues Chicago Archdiocese for Discrimination

Following an EEOC complaint filed last year (see prior posting), the former music director of a suburban Chicago Catholic parish has now filed an employment discrimination suit in federal district court against the parish and the Archdiocese of Chicago. The Chicago Tribune reported yesterday on the lawsuit by Colin Collette against the Holy Family Catholic Community in Inverness and the Archdiocese, alleging violations of the federal Civil Rights Act, the Illinois Human Rights Act and the Cook County Human Rights Ordinance.  Collette was fired last July after he announced that he was engaged to be married to his longtime partner Will Nifong.  Collette says church leaders knew he was gay long before he posted his engagement notice on Facebook, and his subsequent marriage to his partner.  Collette is seeking damages, back pay and reinstatement.

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.

Muslim Technician Sues Charging Employment Discrimination

CAIR-Michigan this week announced the filing of a religious discrimination lawsuit in federal district court against an Indiana-based healthcare technology management organization (with an office in Troy, Michigan) on behalf of an American Muslim Egyptian biomedical technician. The complaint (full text) in Hassane v. Trimedx, (ED MI, filed 2/15/2016) says that plaintiff was hired as a technician in a program that included extensive training. However, after he requested the use of two-weeks earned vacation time to travel to Egypt to celebrate Eid-al-Fitr with his family, he was removed from the training program, placed on probation and denied a promotion and salary increase that all others received. Detroit News reports on the lawsuit.

Dentist Sued For Harassing Staff With Constant Playing of Christian Music

According to yesterday's Clarkston News, four former employees of a Lake Orion, Michigan dentist have filed a religious discrimination and religious harassment lawsuit in state court against dentist Tina Marshall and her pastor.  After Marshall and her daughter joined the Christian ministry of Dr. Craig Stasio, Marshall increasingly insisted on playing Christian music in the dental office. Even though her employees objected, eventually she insisted on playing the music all the time, even when the building was empty, "to keep the demons out." The suit alleges that Marshall also conducted daily morning prayers with staff members, which eventually became mandatory.  She also prayed over patients receiving dental treatment.  Employees resisted the music, and some of them either resigned or were fired.  Eventually Marshall called on Stasio to restructure the office, and all but one of the current employees were fired and replaced by members of Stasio's ministry.  The lawsuit alleges discrimination in violation of Michigan's Elliott Larsen Civil Rights Act.

Catholic School Violates Mass. Law By Refusing To Hire Applicant Who Is In A Same-Sex Marriage

In Barrett v. Fontbonne Academy, (MA Super. Ct., Dec. 16, 2015), a Massachusetts state trial court held that a Catholic women's preparatory school unlawfully discriminated on the basis of sexual orientation and gender in violation of 21 MGL Chap. 151B when it withdrew an offer of employment as Food Services Director to Matthew Barrett after it discovered he was a spouse in a same-sex marriage.  The school said that same-sex marriage is inconsistent with the teachings of the Catholic Church.  In finding a statutory violation, the court rejected the school's argument that it came within the statutory exemption for religious organizations in Sec. 1(5) of the statute, because that exemption is limited to organizations that limit membership, enrollment, admission, or participation to members of the same religion. The court held that this limitation takes precedence over seemingly broader exemptive language for religious organizations in Sec. 4(18).  It also held that imposing these anti-discrimination provisions on the school did not violate the school's right of expressive association.  Finally the court rejected the school's reliance on the "ministerial exception" doctrine, concluding that Barrett would not be considered a minister "under any version of this doctrine." The Advocate reports on the decision.

Suit Says Faculty Applicant Was Blindsided By Religious Affiliation Requirement

AP reported yesterday on a lawsuit filed in state court in Portland, Oregon by a Jewish man who was ultimately not hired as an adjunct professor of psychology at the Christian-based Warner Pacific College.  While Oregon law allows a religious institution to hire on the basis of religion, applicant Noel M. King says that the school's job posting only said that applicants had to agree to respect Christ-centered values and Christian faith.  It did not say they had to be members of the Christian faith.  King says he went through a 4-month application process, three interviews and a teaching demonstration, and was recommended by the hiring committee who knew he was Jewish, before the school's president vetoed his hiring because of his religious affiliation. He asks for $268,000 in damages, claiming that he missed out on applying for other jobs while Warner Pacific strung him along.

British Court of Appeals Says Muslim Prison Chaplains Did Not Suffer Pay Discrimination

In Naeem v The Secretary of State for Justice, (EWCA, Dec. 9, 2015) , the England and Wales Court of Appeal held that discrimination was not the cause of the average pay of Muslim prison chaplains in British prisons being lower on average than that of Christian chaplains. Instead it was caused by the fact that the Prison Service only began employing Muslim chaplains in 2002.  Before that there were not enough Muslim prisoners to call for employing full-time Muslim chaplains.  Thus the average length of service for Muslim chaplains is less than for Christian chaplains.  Chaplains get pay raises based on length of service.

Petitioners, who originally brought their cases before an Employment Tribunal, argued that they were the victims of "indirect discrimination"-- which is defined in British law as a practice that operates with a disparate impact on a protected class.  The appeals court, relying on earlier precedent, held: "an employer can rebut a claim of indirect discrimination by showing that an apparent disparate impact is the result of non-discriminatory factors." Law & Religion UK reports further on the decision.

Muslim Former Employee Sues Bed Bath & Beyond For Discrimination

The New York Daily News reports on a religious discrimination lawsuit filed by a former department manager at a Manhattan Bed Bath & Beyond store. In his state court lawsuit, Jose Alcantara alleges that he was subjected to months of harassment after he grew a beard that reflected his deepening Muslim religious faith. That faith was prompted by watching his mother-in-law dying from cancer.  He says colleagues continually referred to him as "terrorist" and the HR department, pressed by the store manager, ignored his complaints. He was ultimately fired for not showing up for work on 3 days which he says were supposed to be vacation days, but his schedule was altered to make it appear he was to work. The EEOC issued Alcantara a right to sue letter last July.