Christian School May Use Oregon's Religious Exemption To Reject Jewish Faculty Applicant

In King v. Warner Pacific College, (OR App, Feb. 21, 2019), an Oregon state appellate court held that a Christian college's refusal to hire a Jewish applicant for a position as adjunct professor of psychology falls within the religious preference exemption to Oregon's non-discrimination law.  ORS 659A.006(4)provides:

It is not an unlawful employment practice for a bona fide ... religious institution, including ... a school... to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:  (a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the ... institution; ... [and]  (c) The employment involved is closely connected with or related to the primary purposes of the ... institution....

The court held that the exemption allows the school to reject a non-Christian applicant and await a later hiring cycle to fill the position, or to assign the work to an existing Christian employee.  A majority of the judges also held that this particular faculty position met the requirement of being closely connected to the school's religious purpose.

European Court: Austria's Law Giving Good Friday Off Only For Christians Violates EU Directive

In Cresco Investigation GmbH v. Achatzi, (ECJ, Jan. 22, 2019), the European Court of Justice held that Austria's law which makes Good Friday a holiday only for employees who are members of specified Christian churches and which requires additional pay for them if they must work that day violates European Council Directive 2000/78/EC on equal treatment in employment. The Court went on to hold:

Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, until [Austria] has amended its legislation ..., in order to restore equal treatment, a private employer who is subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday....

Courthouse News Service reports on the decision.

Florida Jury Gives Large Award To Worker Fired For Refusing To Work on Sunday

Law 360 reports [subscription required] that a Florida federal court jury on Monday awarded $36,000 for lost wages, $500,000 for emotional pain and $21 million in punitive damages to a Hilton Hotel dishwasher who was fired for swapping shifts with co-workers to allow her to have Sundays off for religious reasons.  Plaintiff was a member of the Catholic missionary group, Soldiers of Christ Church.  Florida has a statutory cap on damages which will lead to the court's reducing punitive damages. [Thanks to Douglas Laycock via Religionlaw for the lead.]

Ohio Governor Signs Broad State Employment Non-Discrimination Executive Order

Yesterday, Ohio Governor Mike DeWine signed Executive Order 2019-05D prohibiting discrimination by any state agency, board or commission.  The Order prohibits discrimination on the basis of race, color, religion, gender, gender identity or expression, national origin (ancestry), military status (past, present or future), disability, age (40 years or older), status as a parent during pregnancy and immediately after the birth of a child, status as a parent of a young child, status as a foster parent, genetic information, or sexual orientation. Washington Blade reports on the governor's action, saying in part:

DeWine’s action stands in contrast to the executive order signed by Florida Gov. Ron DeSantis, who excluded LGBT people in a non-discrimination that included other categories, including race, religion and sex....

The Ohio Republican’s action may come as a surprise to observers who know his history as a President Trump-supported candidate and an Ohio state attorney general who defended the state’s marriage ban in court.

California City Settles Officer's Religious Discrimination Suit Against Police Chief For $2.3M

AP reports that last Friday the city of Beverly Hills, California agreed to pay $2.3 million to settle a religious discrimination lawsuit brought against it by Police Capt. Mark Rosen.  Rosen, who is Jewish, contends that Police Chief Sandra Spagnoli, through restructuring of the command staff, denied him opportunities for promotion because of his religion.  At least 20 other complaints of discrimination of various sorts have been filed against Chief Spagnoli since 2016. Rosen retired immediately after the suit was settled.

2 Philadelphia Police Officers Claim Anti-Semitic Harassment

Two Philadelphia police officers filed suit on Monday against the Philadelphia Police Department and Department supervisors alleging the creation and sanctioning of a racist, anti-Semitic and anti-Jewish environment. The complaint (full text) in Gonzalez v. City of Philadelphia, (ED PA, filed 11/19/2018) seeks damages for harassment, discrimination and hostile work environment in violation of 42 USC Secs. 1981, 1983 and 1985. WHYY News further summarizes the complaint:

The federal civil rights lawsuit claims an array of abuse — that the officers were not given time off to celebrate Jewish holidays, that a Nazi “SS” symbol and a German phrase meaning “skull and crossbones” were scratched onto their lockers, and that a police patrol car was marked with the Star of David with the words “Hebrew Hammer.”

Civil rights lawyers Brian Mildenberg, who is representing the officers, said those acts were intended to “scare and harass” Reznik, a Jewish immigrant born in Russia who is a 12-year veteran of the force.

8th Circuit: Title VII Failure To Accommodate Does Not Equal Retaliation

In EEOC v. North Memorial Health Care, (8th Cir., Nov. 13, 2018), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, interpreted Title VII's unlawful retaliation provision. At issue is the interpretation of 42 U.S.C. § 2000e-3(a) that makes it illegal to discriminate against an employee or applicant for employment because the person "has opposed" an employer's discriminatory practices. In the case, an employment offer to a Seventh Day Adventist registered nurse was withdrawn because she was unable to work Friday night shifts and an accommodation was not feasible.  The majority held that merely requesting religious accommodation is not necessarily an expression of opposition to a denial of the accommodation.  Judge Grasz dissenting explained the opposing views:

I do share the Court’s apparent concern that Title VII not be read so that meritless discrimination claims based on a failure to accommodate may simply be repackaged and resurrected as retaliation claims. In my view, however, it is the causation element that properly does the work of weeding out such claims, not the opposition requirement. Where an employer, after denying an accommodation request that it is not legally obligated to grant, refuses to hire an applicant because the applicant cannot or will not perform the job without accommodation, the employer can show the legitimacy of the action.... Unlike such repackaged claims, the claim here should survive because there is evidence of retaliation, namely the evidence that Sure-Ondara told North Memorial she would work the job even without the accommodation and would show up for work if she could not find a replacement. Despite her willingness to work without accommodation, North Memorial withdrew its job offer, making it reasonable for a fact-finder to infer that it did so because she had requested an accommodation.

Jury Awards $3.2M To Muslim Employee For Religious Discrimination

According to the Press-Enterprise, last week a jury in a San Bernardino, California trial court awarded $3.2 million in damages for religious discrimination to a former warehouse employee at Loma Linda University Medical Center.  Muslim former employee Hugo Lizzaraga claimed that he was harassed for four years and ultimately was dismissed because of his Muslim religious beliefs.  Lizzaraga claimed that the harassment began after he converted to Islam and also broke his thumb and was placed on modified duty by his physician. A month before he was fired, he was suspended-- accused of telling a co-worker what he would have done differently in the 2015 San Bernardino terrorist shooting.

Second Broad Challenge To Austin's Anti- Discrimination Ordinances Filed

Following a federal court lawsuit filed last week by churches challenging Austin, Texas' ban on employment discrimination (see prior posting), a broader lawsuit has been filed in state court challenging the application of Austin's public accommodation, housing and employment discrimination ordinances to any individual or business that has religious objections to homosexual or transgender behavior.  The complaint (full text) in Texas Values v. City of Austin, (TX Dist. Ct., filed 10/8/2018) asks the court to declare that the ordinances violate Texas Religious Freedom Restoration Act and the Texas Constitution

to the extent that they: (a) prohibit individuals and entities from refusing to hire or retain practicing homosexuals or transgendered people as employees for reasons based in sincere religious belief; (b) prohibit individuals and entities from refusing to rent their property to tenants who are engaged in non-marital sex of any sort, including homosexual behavior, for reasons based in sincere religious belief; (c) prohibit individuals and entities from declining to participate in or lend support to homosexual marriage or commitment ceremonies, for reasons based in sincere religious belief; and (d) prohibit individuals and entities from declining to provide spousal employment benefits to the same-sex partners or spouses of employees, for reasons based in sincere religious belief; (e) prohibit individuals and entities from establishing sex-specific restrooms and limiting them to members of the appropriate biological sex, for reasons based in sincere religious belief.

Austin Statesman reports on the lawsuit.

Churches Sue For Exemptions From City's Employment Non-Discrimination Ordinance

A Texas-based organization of churches has filed suit against the city of Austin claiming that the city's non-discrimination ordinance violates member churches' federal and state constitutional rights and Texas' Religious Freedom Restoration Act. The complaint (full text) in U.S. Pastor Council v. City of Austin, (WD TX, filed 10/6/2018), contends that the Austin ordinance which bans employment discrimination on the basis of sex, sexual orientation or gender identity infringes the rights of churches that will not hire women as senior pastors or which will not hire practicing homosexuals or transgendered individuals for any church position.  The only religious exemptions set out in the Austin ordinance are for religious institutions' hiring on the basis of religion.  The complaint declares that objecting churches "rely on the Bible rather than modern-day cultural fads for religious and moral guidance." KXAN News reports on the decision.

EEOC Sues Over Religious Objections To Flu Shot

The EEOC announced last week that it has filed suit against Saint Thomas Rutherford Hospital in Murfreesboro, Tennessee, for requiring an employee of the contractor providing food and environmental services to have a flu shot if the employee wished to continue to work there. The employee refused on religious grounds.  In prior years accommodation was provided by allowing employees to wear a protective mask instead.

Ban Against Reproductive Choice Discrimination Enjoined As To Defendants With Religious Objections

In Our Lady's Inn v. City of St. Louis, (ED MO, Sept. 30, 2018), a Missouri federal district court enjoined enforcement against plaintiffs of a St. Louis ordinance enacted last year that prohibits discrimination in housing and employment because of a person's reproductive health decisions or pregnancy.  Plaintiffs were a non-profit agency that provides housing to pregnant, low-income women who seek an alternative to abortion; a group of Catholic elementary schools; and a closely held company whose principal owner adheres to Catholic teachings on birth control.

Construing exemptive language of the ordinance narrowly, the court concluded that the ordinance would require businesses to provide health insurance for reproductive services, and that the ordinance would thus be invalid under Missouri's RFRA.  The court went on to invalidate the employment and housing discrimination provisions, finding that they violate the expressive association rights of the women's shelter and the Catholic schools.  The Thomas More Society issued a press release announcing the decision.

European Court Says Catholic Hospital May Have Illegally Fired Doctor

In IR v. JQ, (COJ, Sept. 11, 2018) the Court of Justice of the European Union held that in Germany, a Catholic hospital may have discriminated illegally when it dismissed the head of its Internal Medicine Department for remarrying in a civil ceremony without his first marriage being annulled. According to the press release summarizing the Grand Chamber's holding:

[T]he national court hearing the action must satisfy itself that ... the religion or belief is a genuine, legitimate and justified occupational requirement in the light of the ethos in question.

... [T]he Court observes that adherence to the notion of marriage advocated by the Catholic Church does not appear to be necessary for the promotion of IR’s ethos due to the importance of the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed. Therefore, that does not appear to be a genuine requirement of that occupational activity. This is corroborated by the fact that similar posts were entrusted to employees who were not of the Catholic faith and, consequently, not subject to the same requirement to act in good faith and with loyalty to IR’s ethos....

However, it is for the Bundesarbeitsgericht to determine whether IR has established that, in the light of the circumstances of the case, there is a probable and substantial risk that its ethos or its right of autonomy will be undermined.

National Secular Society reported on the decision.

Appeals Court Remands Employment Discrimination Claim Against NJ Corrections Department

In Roseus v. State of New Jersey, (NJ App., Sept. 10, 2018), a New Jersey state appeals court remanded to the trial court a suit in which plaintiff claimed the Department of Corrections (DOC) violated the state's Law Against Discrimination when it dismissed him from a training program for corrections officers. DOC refused to grant  Marven Roseus, who for religious reasons does not shave his face or head, a religious accommodation to depart from the Department's grooming rules. The appeals court held:

[D]efendants moved for dismissal... Consequently, there is no record.... [W]e do not have a record of the DOC's actual grooming policy, the rationale for that policy, whether the DOC has granted accommodations to others from its grooming policy, whether the DOC engaged in a "bona fide effort" to accommodate plaintiff, and whether an accommodation to plaintiff would impose an "undue hardship" on the DOC. 

UK Employment Tribunal Says Scottish Independence Is Protected Philosophical Belief

The United Kingdom's Equality Act prohibits not just religious discrimination, but also discrimination on the basis of any philosophical belief.  Scotland's Sunday Herald reports that a Scottish Employment Tribunal has held that Scottish independence qualifies as a philosophical belief under the statute.  The case was brought by Christopher McEleny, a Scottish National Party member of a local Council who was planning to run for an SNP leadership position.  McEleny contended that the Ministry of Defense illegally discriminated against because of his independence beliefs when it suspended. his security clearance.  This led to his being fired from his position as an electrician at a munitions site.  Law & Religion UK has more on the decision.

Connecticut RFRA Does Not Immunize Against Employment Discrimination Suits

In Trinity Christian School v. Commission on Human Rights and Opportunities,  (CT Sup. Ct., Aug. 7, 2018 [official release date]), the Connecticut Supreme Court held that the state's Religious Freedom Restoration Act does not confer complete immunity to religious institutions for employment discrimination suits, and does not operate as a jurisdictional bar to such actions. Thus an interlocutory appeals of an administrative agency's refusal to dismiss a suit is not permitted.

Haliburton Sued By EEOC For Religious and National Origin Discrimination

The EEOC announced on Tuesday that it has filed suit against the large multinational Haliburton Energy Services, Inc., charging that the company subjected two of its employees to religious and national origin discrimination.  According to the EEOC:

Hassan Snoubar, of Syrian national origin, began working for Halliburton as an operator-assistant oil field worker.... During his employment, Snoubar, a U.S. citizen, was subjected to taunts and name calling regarding both his national origin and his Muslim religion. He was frequently called derogatory names ... and was accused of being associated with ISIS and terrorism by supervisors and co-workers. Mir Ali, a Muslim co-worker of Indian national origin, was similarly subjected to the hostile environment.

... After being continually criticized about their cultural attire, appearance and even claims that "their people" engaged in bestiality, Snoubar expressed his concerns to management and human resources, but was then fired.

European Court Interprets Provision Allowing Churches To Hire On Basis of Religion

In Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief.  The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief."  It provides that in such organizations:

a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified.  It went on to define how national courts should interpret the exception:

 Thus the lawfulness ... of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....

... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.

.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.

Law & Religion UK has more on the decision.

Religious Organizations Challenge City's New Anti-Discrimination Law

Five churches and a Christian radio station filed suit last week in a Wisconsin state trial court challenging a De Pere city anti-discrimination ordinance that does not clearly exempt religious organizations.  The complaint (full text) in Hope Lutheran Church v. City of De Pere, (WI Cir. Ct., filed 2/22/2018) says that the city has not been willing to assure churches and religious organizations that they will be exempt from the employment and public accommodation provisions of the law that takes effect next month.  The complaint contends:

As a result, the ordinance is likely to be imposed on churches and other religious organizations in a manner that would mandate government orthodoxy in core religious functions, communication, and conduct.

While the law does permit religious organizations to hire on the basis of religion, it does not exempt them from prohibitions on hiring on the basis of sex, marital status, sexual orientation or gender identity.  Fox 11 News reports on the law suit.

Christmas As Legal Holiday Does Not Violate County Employee's Rights

In Edelstein v. Stephens, (SD OH, Feb. 16, 2018), a Ohio federal magistrate judge recommended dismissing many of the claims of a state court staff attorney/magistrate who was fired after she requested eight days off for Jewish holidays. One of plaintiff's claims was that the county violated her free exercise and equal protection rights by designating Christmas as a legal holiday without similarly protecting the rights of non-Christians to celebrate their holidays.  The court said in part:

Butler County's policy establishing Christmas as a paid legal holiday for county employees is a neutral law that does not discriminate against a particular religion or set of religious beliefs or prohibit any conduct because it is undertaken for religious reasons.... The Sixth Circuit has acknowledged that because there are "legitimate secular purposes for establishing Christmas as a legal public holiday," it follows that the establishment of Christmas day as a legal public holiday neither violates an individual's fundamental rights nor discriminates against her based on her religion.

The Butler County Journal-News reports on the decision.