7th Circuit: Hebrew Teacher Covered By "Ministerial Exception" Doctrine

In Grussgott v. Milwaukee Jewish Day School, Inc., (7th Cir., Feb. 13, 2018), the U.S. 7th Circuit Court of Appeals held that the ministerial exception applies to prevent a former Hebrew teacher in a Jewish day school from suing for her firing in violation of the Americans With Disabilities Act.  Plaintiff taught first and second graders. In concluding that plaintiff should be classified as a "ministerial" employee, the court said in part:

... it is sufficient that the school clearly intended for her role to be connected to the school’s Jewish mission....  Milwaukee Jewish Day School expected Grussgott to follow its expressly religious mission and to teach the Tal Am curriculum, which is designed to “develop Jewish knowledge and identity in [its] learners.”.... This, combined with the importance of Grussgott’s Judaic teaching experience in her being hired, confirms that the school expected her to play an important role in “transmitting the [Jewish] faith to the next generation.”.... Even if Grussgott did not know this, the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith. Thus, it is the school’s expectation—that Grussgott would convey religious teachings to her students— that matters.

Israeli Court Fines Online "Jews-Only" Job Site

In Israel yesterday a Jerusalem trial court fined the online "Jewish Job List" NIS 40,000 ($11,371) for violating employment discrimination laws.  The site which lists jobs for employers who want to only hire Jews was found by the court to violate Israeli laws against employment discrimination on the basis of nationality or religion.  According to a report on the case in Hamodia:

The lawsuit received backing from the official government ombudsman for equality in the Labor Ministry, who said in a statement to the court that attempts to persuade the public to hire Jews, and not to hire Arabs, is “a serious violation of civil rights. The message is clear that promoting this kind of discrimination is against the values of the State of Israel, and removing this will be another step in providing an equal-opportunity job market,” he added.

California Governor Vetoes Expanded Labor Protections For Employees of Religious Organizations

On Oct. 15, California Governor Jerry Brown vetoed AB-569 (full text of bill) that would have expanded the employees who are protected against dismissal for their reproductive health choices.  The bill provides in part:

The Legislature finds that employees of religiously affiliated institutions are entitled to the same protections as any other employee under the California Labor Code, unless the employee is the functional equivalent of minister, and therefore subject to a “ministerial exception” as developed in First Amendment case law.

California's current Fair Employment and Housing Act does not cover any employees of non-profit religious associations or corporations (Sec. 12940(j)(4)).  Governor Brown's veto message said:

The California Fair Employment and Housing Act has long banned such adverse actions, except for religious institutions. I believe these types of claims should remain within the jurisdiction of the Department of Fair Employment and Housing.

In a press release on the governor's veto, ADF described the vetoed bill as one that "would have prohibited churches, religious colleges, religious non-profit organizations, and pro-life pregnancy care centers from having faith-based codes of conduct with regard to abortion and sexual behavior."

Quebec Tribunal Finds Discrimination When Jewish Owner Enforces Jewish Practice On Jewish Employees

In Canada, Quebec's Tribunal for Human Rights in a decision last month held that the Jewish owner of a hair salon violated the religious rights of a Jewish employee when she decided that none of the Jewish employees should work on Saturdays, the Jewish Sabbath.  Hair stylist  Richard Zilberg wanted to include Saturdays in his 6-day work week since this was the busiest day of the week, but Spa Liv Zen owner Iris Gressy prohibited it. Zilberg was fired after he revealed to a client the reason he was no longer available on Saturdays.  In Commission on Human Rights and Youth Rights v. 9220-3454 Quebec, Inc., (QCTDP, June 27, 2017), the Tribunal held that this violated Zilberg's rights under Quebec's Charter of Human Rights and Freedoms to equality in employment, freedom of conscience and religion, and dignity and respect for his private life.  According to the Tribunal:

[Zilberg] stated that the Defendants’ decision amounted to a hurtful determination of how he should practice his religion. He felt outraged that the Defendants could ... impose upon him a religious practice that violates his rights to freedom of conscience and religion.

... [H]e felt no less true to his faith because, for various personal reasons, he did not conform to the religious practice of observing the Sabbath; he in fact celebrated other important Jewish holidays with his family.

... Consequently, the interdiction to work on Saturdays imposed upon Mr. Zilberg genuinely affected him as he practiced his religion according to his own personal values.

The Tribunal awarded Zilberg $6,006 in material damages and $4,000 for the moral prejudice he suffered, and $2,500 in punitive damages. Neither Cressy nor her business contested the claims against them and neither were present at the Tribunal hearing. Canadian Press this week reported on the decision.

Suit Challenges Ordinance Barring Discrimination On Basis of Reproductive Health Services

In February 2017, the St. Louis (MO) Board of Aldermen enacted Ordinance 70459 which added to the city's existing laws against discrimination in employment and housing a prohibition on discrimination "because of ... reproductive health decisions or pregnancy status (including childbirth or a related medical condition)".  Yesterday suit was filed in a Missouri federal district court challenging the Ordinance which the lawsuit says was represented as barring discrimination against those who have had, or are planning to have, an abortion.  The complaint (full text) in Our Lady's Inn v. City of St. Louis, (ED MO, filed 5/22/2017) contends that in fact the Ordinance is much broader, saying in part:

Ordinance 70459 forbids Plaintiffs and others from making adverse employment, housing or realty decisions based on an individual or entity being an abortion activist, advocate or provider....  Thus, the Ordinance forbids Plaintiffs from refusing to sell or rent real property to individuals and corporate organizations that promote or provide abortions....

The complaint alleges that the Ordinance violates the speech and religion clauses of the 1st Amendment,  the due process and equal protection clauses of the 14th Amendment as well as various provisions of state law.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Missouri Legislature Restores Employment Discrimination Exemption For Religious Hospitals and Colleges

The Missouri legislature on Monday gave final passage to SB 43 (full text) which, among other things, restores the exemption for religiously affiliated hospitals and colleges from the state's employment discrimination law.  The existing version of the state's employment discrimination law excludes from the definition of "employer" any corporation or association "owned and operated by religious or sectarian groups." In a 2013 decision the Missouri Supreme Court in Farrow v. St. Francis Medical Center held that a Catholic hospital did not qualify for the exclusion because, while it may have been operated by a religious organization, it was not "owned" by a religious group. The statute just passed by the legislature (Sec. 213.010(8)) now provides an exclusion for "corporations and associations owned or operated by religious or sectarian organizations." The Pathway reporting on the bill says that Gov. Eric Greitens is expected to sign the bill in the near future.

Woman Sues Claiming Her Firing Was For Not Being Christian Enough

Suit was filed earlier this week in a Texas trial court by a managerial employee of Gulf Winds International who alleges that she was fired because she was not Christian enough.  The complaint (full text) in Thomson v. Gulf Winds International, Inc., (TX  Dist. Ct., filed 4/18/2017) alleges that the company "discriminated and retaliated against Plaintiff based on religion and because of her opposition of forced religious material in the work place in violation of the Texas Commission on Human rights Act...." Courthouse News Service reports on the lawsuit.

North Carolina Repeals "Bathroom Law", But Pre-Empts Local Regulation

North Carolina Governor Roy Cooper yesterday signed into law House Bill 142 (full text), a compromise bill that repeals H.B. 2, the state's controversial "bathroom law" that restricted use of restrooms and locker rooms in public schools and government offices by transgender individuals. (See prior posting.) The new law also repeals Session Law 2016-99, and thus apparently eliminates any private action under state law for employment discrimination. The new law prohibits local governments, state universities and state agencies from enacting their own regulation of access to multiple occupancy restrooms, showers, or changing facilities.  It also prohibits local governments until Dec. 1, 2020 from enacting or amending any ordinance regulating private employment practices or public accommodations.  In his remarks (full text) in signing H.B. 142, Gov. Cooper said in part:

This law I’m signing today is not just about North Carolina’s reputation – or jobs and sports. It’s about working to end discrimination. Under HB2, North Carolina had zero LGBT protections. Today’s law not only provides for LGBT protections, but opens the door for more.

 This is not a perfect deal or my preferred solution. It stops short of many things we need to do as a state.

 In a perfect world, we would have repealed HB2 today and added full statewide protections for LGBT North Carolinians. Unfortunately, our supermajority Republican legislature will not pass these protections. But this is an important goal that I will keep fighting for.

Washington Post reports on these developments.

European Court of Justice Upholds Neutral Employment Rules Barring Religious Dress

The Court of Justice of the European Union today decided two cases raising the question of whether private employers may prohibit Muslim employees from wearing a headscarf at work.  In a case from Belgium, Achbita v. G4S Secure Solutions NV, (CJEU, March 14, 2017), the Court's Grand Chamber ruled:

Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.

By contrast, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.

In a case from France, Bougnaoui v. Micropole SA,  (CJEU, March 14, 2017), however, the Court's Grand Chamber held that where an employer does not have a general rule on dress:

Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.

The Court issued a press release summarizing the decisions. The Guardian reports on the decision.

Administrative Law Judge Sues Over Requirement To Watch LGBT Diversity Training Video

According to yesterday's Houston Press, a Social Security Administrative Law Judge has filed a federal court lawsuit claiming religious discrimination after the agency refused to accede to his religious objections to viewing a 17-minute LGBT diversity training video.  In the lawsuit, ALJ Gary Suttles claims that the refusal by the Houston office's chief administrative law judge to grant him a religious accommodation and her insistence that he watch or read a transcript of the video created a hostile work environment.

Former Employees Sue Claiming They Were Required To Participate In Scientology Traininig

According to yesterday's Madison County Herald Bulletin, Paul and Chelsea Wysong who are former employees of the Anderson, Ohio-based Continental Design Co. filed a religious discrimination lawsuit in state court in Darke County, Ohio last week.  Plaintiffs charged that company CEO Judy Nagengast required them to participate in Scientology religious practices, such as audits and training. They were told to attend Scientology courses in California, Indiana and Florida. Nagengast denies the allegations and said she plans a counter-suit.

4th Circuit Hears Employment Discrimination Case

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments in Abeles v. Metropolitan Washington Airports Authority. (Audio of full oral argument.) In April, a Virginia federal district court rejected plaintiff's claim that she was discriminated against because of her Orthodox Jewish faith when she was suspended for five days after stayed off work on the last two days of Passover. (District court opinion.) Among the issues on appeal are whether plaintiff followed proper procedures in requesting time off, and whether RFRA and the Virginia Religious Freedom Act apply to the case.  Becket Fund has links to documents in the case.

Britain's Equality Commission Publishes New Study On Religion In the Workplace

On Friday, Britain's Equality and Human Rights Commission announced the publication of a lengthy new study titled Religion or Belief: Is the Law Working?. The report focuses on four questions: Is the legal approach to defining a religion or a belief effective? Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate? Does the law sufficiently protect employees wishing to manifest a religion or
belief at work? Does the law sufficiently protect service users and service providers in relation to religion or belief? The Commission also published an updated Guide for employers to religion and belief in the workplace.  Law & Religion UK has more on the Commission's conclusions.

Muslim Nanny Sues Actor Couple

According to The Wrap, in a suit filed in Los Angeles Superior Court on Thursday, Sarah Alaseri (a young Muslim woman) is seeking damages for religious discrimination (as well as sexual harassment) against actor Steve Howey and his wife Sarah Shahi.  Alaseri was employed by the couple as a nanny. The suit claims that Howey and Shahi ridiculed Alaseri's religious beliefa and practices-- including mocking her for dressing modestly, fasting and wearing a headscarf when praying.

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.

Georgia Drops Demands For Copies of Sermons In Discrimination Case

As previously reported, last month the Georgia Department of Public Health created significant controversy when, as part of its discovery requests in a religious discrimination lawsuit filed against it by a Seventh Day Adventist lay minister, it asked its former employee to furnish notes or transcripts of his sermons. Christian Post reported this week that Georgia has now dropped that demand, but is still asking for his ministerial credentials; proof he has served with the Seventh Day Adventist church; his contracts with the Church; and details any compensation for his sermons.

Discovery Demand For Pastor's Sermons Generates Controversy

As previously reported, last April Eric Walsh, a doctor and public health expert, filed a religious discrimination suit against the Georgia Department of Public Health alleging that his termination shortly after he was hired was based on the content of sermons he had given as a Seventh Day Adventist lay minister. Now the Georgia Department of Public Health's discovery requests (full text) in the case have generated a new religious freedom controversy. Among the 22 categories of documents that plaintiff was requested to produce was:

Please produce a copy of your sermon notes and/or transcripts.

According to a First Liberty press release yesterday, Walsh will not turn over his sermons unless he is forced to do so, saying that no government has the right to require a pastor to turn over his sermons. Other advocacy groups have reacted in even stronger terms.  For example, Concerned Women for America captioned its press release "Georgia 'Gestapo' Combing Through Pastor's Sermons."

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.

Muslim Caseworker Sues Charging Religious Discrimination

A Bangladeshi Muslim woman who was a social worker and had been employed as a case manager by a behavioral healthcare company filed suit in an Oregon state court last week charging religious, racial, national origin and disability discrimination in her termination.  The complaint (full text) in Rahman v. Cascade Behavioral Healthcare, Inc., (OR Cir., Ct., filed 10/7/2016), claims, in part, that adverse employment action against her stemmed from her refusing for religious reasons to shake hands with men (including her boss), her wearing of a hijab, and her praying at work up to three times per day. The Oregon Bureau of Labor & Industries had dismissed her complaint filed with them, finding inadequate evidence of discrimination. (Full text of OBLI order).  The Oregonian reports on the lawsuit.

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.