Insurance Brokerage Firm Settles EEOC Religious Discrimination Suit

EEOC announced yesterday that Arthur J. Gallagher & Co., an insurance brokerage firm, has agreed to settle a religious discrimination lawsuit by paying $40,000 in damages to an underwriting associate it fired, explaining:

According to the EEOC’s lawsuit, filed last year, Gallagher knew of Yu Rex Noda’s Christian religious practices, including fasting in conjunction with Lent. As set out in the EEOC’s complaint, a “Termination Memo” Gallagher issued cited “fasting” and “meditating” among reasons for firing Noda.

The company will also provide anti-discrimination training to Midwest regional managers.

Court Upholds Testing Requirement For Employees Granted Religious Exemption From Vaccination

In Federoff v. Geisinger Clinic, (MD PA, No. 23, 2021), a Pennsylvania federal district court refused to issue a preliminary injunction in a suit by 100 clinic employees who had been granted religious exemptions from the COVID vaccine mandate so long as they submit to tests twice per week. The employees sue seeking to eliminate the testing requirement or, alternatively, to require vaccinated employees as well to submit to testing. The court, in rejecting plaintiffs' constitutional and statutory claims, said in part:

First, they assert constitutional claims against a private entity without so much as a paragraph describing how Geisinger could be considered a state actor....

Second, while the Geisinger Employees are in the right area code in alleging that Geisinger violated their rights under federal and state antidiscrimination law ... their allegations fail to touch on these statutes’ most basic requirements. To make out a prima facie case of religious discrimination, the Geisinger Employees must tell the Court what their religious belief is. They have not done so....

[Also] the antidiscrimination statutes require that employees first file their complaint with either the Pennsylvania Human Relations Commission or the Equal Employment Opportunity Commission. The Geisinger Employees have not done so..... 

[T]he Employees also fail to show that they would suffer irreparable harm...

Labor Department Proposes Rescinding Trump Era's Broad Religious Employer Exemption Rule

The Department of Labor yesterday released a proposal (full text) to rescind a Trump Administration rule (see prior posting) that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. Yesterday's Release says in part:

OFCCP believes that the 2020 rule creates a lack of clarity regarding the scope and application of the exemption because ... it misstates the law in key respects. In addition, as a threshold matter, OFCCP has reevaluated the need for the rule. For the 17 years prior to 2020, OFCCP implemented the Executive Order 11246 religious exemption without seeking to codify its scope and application in specific regulatory language....

[T]he 2020 rule creates its own religious employer test, independent of Title VII case law interpreting the identical term. The test adopted in the 2020 rule permits a contractor whose purpose and/or character is not primarily religious to qualify for the Executive Order 11246 religious exemption....

In addition, the 2020 rule retreats from the general principle that qualifying religious employers are prohibited from taking employment actions that amount to discrimination on the basis of protected characteristics other than religion, even if the decisions are made for sincerely held religious reasons....

FCW reports on the proposed rule rescission.

Religious Exemptions From Title VII Allow LGBTQ Employment Discrimination

In Bear Creek Bible Church v. EEOC, (ND TX, Oct. 31, 2021), a Christian church and a Christian-owned business filed a class action in a Texas federal district court seeking religious exemptions from provisions of Title VII of the Civil Rights Act of 1964. Under the U.S. Supreme Court's Bostock case, Title VII's ban on sex discrimination prohibits employment discrimination based on sexual orientation or gender identity. The court, in a 70-page opinion, held that as to churches and similar religious employers, the religious organization exemption in Title VII allows more than just religious discrimination:

[A] religious employer is not liable under Title VII when it refuses to employ an individual because of sexual orientation or gender expression, based on religious observance, practice, or belief.

As to businesses that assert a religious objection to homosexual and transgender behavior, the court held that Title VII substantially burdens their religious exercise in conducting business, in violation of the Religious Freedom Restoration Act as well as of the 1st Amendment's Free Exercise and Freedom of Association protections.

The court went on to rule on several other questions which the Supreme Court's Bostock decision arguably left unresolved. It concluded: 

• Title VII bars discrimination against bisexuals, just as it does against gays, lesbians and transgender individuals. 
• Policies that require employees to refrain from certain sexual activities, including sodomy, premarital sex, adultery, and other sexual activity outside of marriage between a man and a woman are permitted because they do not apply exclusively to bar homosexual conduct.
• Sex-specific dress codes based on biological sex are permitted because they apply evenly to those who identify with their biological sex and to transgender individuals.
• Policies that prohibit employees from obtaining genital modification surgery or hormone treatment for gender dysphoria violate Title VII.
• Title VII allows employers to have policies that promote privacy, such as requiring the use of separate bathrooms on the basis of biological sex.

Bloomberg Law reports on the decision.

Illinois Appeals Court Upholds $220,000 Damage Award For Denying Transgender Employee Correct Restroom Access

In Hobby Lobby Stores, Inc. v. Sommerville, (IL App., Aug. 13, 2021), an Illinois state appellate court upheld the Illinois Human Rights Commission's award of $220,000 in damages against Hobby Lobby for violating the Illinois Human Rights Act by refusing to allow a transgender woman employee to use the woman's restroom. The court said in part:

Hobby Lobby argues that the Commission misunderstood the Act, improperly conflating “sex” with “sexual orientation.” Specifically, it argues that it limited access to its bathrooms based on sex, not gender identity, and that the Act permitted it to do so. It also argues that “sex” means “reproductive organs and structures,” and thus Sommerville (who has not had a surgical vaginoplasty or labiaplasty) is of the male sex...

Hobby Lobby contends that an individual's “sex”—the status of being male or female—is an immutable condition. However, the plain language of the Act does not support this conception. There is simply no basis in the Act for treating the “status” of being male or female as eternally fixed....

[T]he record establishes that Sommerville's sex is unquestionably female. She has undergone years of effort and expense to transition, and she appears to be and comports herself as a woman. Of even greater significance, her status of being female has been recognized not only by the governments of this state and the nation but also by Hobby Lobby itself, all of which have changed their records to acknowledge her female sex....

Reason reports on the decision.

Cert. Filed In Case On Washington State's Religious Exemption From Anti-Discrimination Law

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Seattle's Union Gospel Mission v. Woods, (cert. filed 8/2/2020). In the case, Washington state's Supreme Court held that, as applied, the religious and non-profit exemption to the state's anti-discrimination law may be unconstitutional. Plaintiff in the case was denied employment as a staff attorney by a Christian legal aid program for the homeless because he was in a same-sex relationship. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

EU Court of Justice Says Neutral Ban On Employees Wearing Any Religious Or Political Symbols Is Permitted

In IX v. WABE eV, (CJ EU, July 15, 2021), the Court of Justice of the European Union gave preliminary rulings in two cases from German Labor Courts on the extent to which employers can ban employees from wearing visible political, religious or philosophical signs in the workplace.  At issue was whether applying such a ban to Islamic headscarves constitutes either direct discrimination or indirect discrimination. EU Directive 2000/78 allows apparently neutral rules that particularly impact persons of a specific religion or belief only if they are "objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."

In one case, at issue was whether a day care center could apply such a ban to a special needs teacher. The court held the ban does not constitute direct religious discrimination "provided that that rule is applied in a general and undifferentiated way." It held that the ban would not constitute prohibited indirect discrimination if the policy meets a genuine need on the part of that employer; the difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, and the ban is limited to what is strictly necessary.

The second case involves a sales assistant/ cashier at a drug store. The employer's policy only banned "conspicuous, large-sized political, philosophical or religious signs." The Court concluded that a ban limited to the wearing of conspicuous, large-sized signs cannot be a neutral policy since the wearing of any sign, even a small-sized one, undermines the ability ... to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality."

AP reports on the decision. [Thanks to Scott Mange for the lead.]

Texas Human Rights Act Bars LGBT Discrimination

In Tarrant County College District v. Sims, (TX App., March 10, 2021), a Texas state appellate court, in a 2-1 decision, held that the Texas Commission on Human Rights Act (TCHRA) should be read to prohibit discrimination on the basis of sexual orientation or gender identity. In the case, plaintiff, a community college employee, claimed that the college discriminated against her because she is a lesbian. The majority said in part:

In order to reconcile and conform the TCHRA with federal antidiscrimination and retaliation laws under Title VII, we conclude we must follow Bostock and read the TCHRA’s prohibition on discrimination “because of . . . sex” as prohibiting discrimination based on an individual’s status as a homosexual or transgender person. See Bostock, 140 S. Ct. at 1738–43; Chatha, 381 S.W.3d at 504–05.

The majority also refused to dismiss plaintiff's claims under the Texas constitution. 

Justice Schenck filed an opinion dissenting in part, contending that Bostock does not control the interpretation of the state anti-discrimination statute. Human Rights Campaign issued a press release on the decision.

Department of Labor Broadly Defines Religious Exemption From Anti-Discrimination Rules for Federal Contractors

Yesterday, the U.S. Department of Labor Office of Federal Contract Compliance Programs in a 159-page Release (full text) adopted amendments defining expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. The agency's rules incorporate Executive Order 11246 which imposes non-discrimination and equal treatment requirements for employees of the contractor or subcontractor.  The Executive Order bars discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. However there is an exemption for:

a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The amendments provide in part:

Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that: 

(i) Is organized for a religious purpose; 

(ii) Holds itself out to the public as carrying out a religious purpose;

(iii) Engages in activity consistent with, and in furtherance of, that religious purpose; and

(iv)(A) Operates on a not-for-profit basis; or 

     (B) Presents other strong evidence that its purpose is substantially religious.

(2) Whether an organization’s engagement in activity is consistent with, and in furtherance of, its religious purpose is determined by reference to the organization’s own sincere understanding of its religious tenets....

Reactions to the new rule varied. For example, First Liberty praised the new rule, saying in part:

Religious organizations should never be forced to abandon their religious identity and mission in order to be eligible to partner with the federal government.

On the other hand, Americans United said in part:

The constitutional right to religious freedom promises everyone the right to live their lives secure that the government will treat them equally, no matter what their belief system. The new Department of Labor rule, however, turns this core American value on its head and puts countless peoples’ jobs at risk because they do not share the religious views or meet the religious code of conduct of a government contractor. Like so many others issued by the Trump administration, this rule particularly puts at risk workers who are LGBTQ, women, religious minorities and non-religious people.

Recent Virginia Anti-Discrimination Statutes Challenged

 Two lawsuits filed this week challenge two recently enacted Virginia statutes-- SB 868 prohibiting discrimination in public accommodations and employment, and HB 1429 that prohibits discrimination against transgender individuals in health insurance policies.

The complaint (full text) in Calvary Road Baptist Church v. Herring, (VA Cir. Ct., filed 9/28/2020) was filed by churches, Christian schools and pregnancy centers and alleges that the laws require plaintiffs to hire employees, provide insurance coverage and offer services that violate their religious beliefs on marriage, sexuality and gender.

The complaint (full text) in Updegrove v. Herring, (ED VA, filed 9/28/2020) was filed by a photographer who will "not provide wedding photography that celebrates any marriage not between one man and one woman, such as same-sex, polygamous, or open engagements or marriages, because [he] believes that God created marriage to be an exclusive union between one man and one woman."

ADF issued a press release announcing the filing of the lawsuits.

Ministerial Exception Doctrine Leads To Dismissal of Music Director's Discrimination Suit

In Menard v. Archdiocese of Boston, (MA App., July 29. 2020), a Massachusetts state appellate court held that the ministerial exception doctrine requires dismissal of a sex and age discrimination suit against the the Archdiocese.  In the suit, a church's director of music ministries claimed that the church's pastor subjected her to harassment and that she was retaliated against when she notified the Archdiocese. The court said in part:

In this case, Menard's job duties place her squarely within the ministerial exception. As implied by her title, director of music ministries, Menard's role was a substantive one. She selected and played music at all parish events, taught and conducted multiple choirs, trained the church's cantors, and organized the cantors' schedule for Mass. Far more than the rote playing of an instrument, ... Menard's job required her to thoughtfully select the music for each event and train others to perform it. 

California Sues Cisco Alleging Caste-Based Discrimination

In a June 30 press release, the California Department of Fair Employment & Housing announced the filing of an unusual employment discrimination lawsuit against Cisco Systems, Inc. and two of its managers:

The lawsuit alleges that managers at Cisco’s San Jose headquarters campus, which employs a predominantly South Asian workforce, harassed, discriminated, and retaliated against an engineer because he is Dalit Indian, a population once known as the “untouchables” under India’s centuries-old caste system....

The lawsuit alleges that Complainant was expected to accept a caste hierarchy within the workplace where he held the lowest status within a team of higher-caste colleagues, receiving less pay, fewer opportunities, and other inferior terms and conditions of employment because of his religion, ancestry, national origin/ethnicity, and race/color.

The Print reports on the lawsuit.

Supreme Court: Title VII Bans LGBT Discrimination

The U.S. Supreme Court today in a 6-3 decision in Bostock v. Clayton County, Georgia, (Sup. Ct., June 15, 2020), held that the provisions of Title VII of the 1964 Civil Rights Act which prohibit discrimination in employment "because of sex" protect gay, lesbian and transgender individuals.  In an opinion written by Justice Gorsuch, and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, the court said in part:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.

Justice Alito filed a dissent, joined by Justice Thomas, saying in part:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.”  And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added)…. 

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

Justice Kavanaugh also filed a dissent, saying in part:

Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.

The Court's opinion covered three cases, Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes. Religion News Service reports on the decision.

Court Upholds Most of NY's Statute Barring Employer Reproductive Health Discrimination; Enjoins Notice Provision

In CompassCare v. Cuomo, (ND NY, June 5, 2020), a church and two pro-life organizations challenged the constitutionality of N.Y Labor Law § 203-e which prohibits employers from discriminating or taking retaliatory action against an employee because of the employee's reproductive decision making or use of any drug, device or medical service. It also requires employee handbooks to give notice to employees of their rights under the statute. According to the court:

Plaintiffs’ complaint, then, is that Labor Law § 203-e will alter their appearance and thus undermine their message. People will know that, even though they proclaim a public commitment to a particular message about religion, sexuality, abortion, and contraception, employees may engage in conduct contrary to their professions of faith....

The court, in a 67-page opinion, rejected plaintiffs' free speech and association claims, saying in part:

The limitations here are not on the speech for which the Plaintiffs contend they associate, but instead threaten to create a situation where hearers might perceive that not all employees ... of the Plaintiffs practiced what they preached. The danger that others be able to call the Plaintiffs hypocrites is not a significant limitation on Plaintiffs’ speech or right to associate. 

The court also rejected plaintiffs' free exercise claims, saying in part:

In the end, the Court cannot find that the evidence presented by the Plaintiffs establishes that the legislature’s purpose was “to challenge the plaintiffs’ religious beliefs” and instead finds that “there was a neutral, secular purpose” for Section 203-e: protecting New Yorkers’ right to make their own decisions about reproduction, including whether to have a child and whether to use birth control....

The court, however, did find that the notice provision amounts to unconstitutional compelled speech and enjoined enforcement of this portion of the law, saying in part:

The notice directed by the statute is language that the Plaintiffs would otherwise not use, and they contend that the prohibitions on discrimination because of “reproductive decision making” undermines their message that the only choices that persons should make on such matters are to carry a child to term, not use birth control, and conduct their sexual lives according to the standards Plaintiffs claim the Bible sets out. While the language in Section 203-e’s notice section does not mention abortion by name, does not suggest to anyone that abortion providers are available, and does not direct anyone to use birth control, the Court finds that the statute compels Defendants to use language they otherwise would not. The notice provision, therefore, is subject to strict scrutiny. No issue of professional speech applies here, which could raise an issue concerning some other level of scrutiny.

3rd Circuit Affirms Dismissal of Title VII Religious Discrimination Suit

In Darby v. Temple University, (3d Cir., Dec. 4, 2019), the U.S. Third Circuit Court of Appeals affirmed the dismissal of plaintiff's claim under Title VII that he was fired by Temple University because of his religion.  The court said in part:

[Plaintiff] states that he wore a cross on a chain around his neck, that he read the bible on breaks, that he spoke openly about attending church services, and that he was employed at Temple for a lengthy period of time. But none of the evidence he produced is sufficient to reasonably infer that his coworkers knew his Baptist identity. More important, none of it relates directly to the person, Thomas Johnston, who terminated his employment. He does not proffer any evidence to show that Johnston knew of his religious affiliation.

Penn Live reports on the decision.

Suit Challenges New York's Ban On Reproductive Health Care Employment Discrimination

A lawsuit was filed last week in a New York federal district court by a pro-life pregnancy care center, a religious pro-life pregnancy care center membership organization and a Baptist church challenging the constitutionality of  New York's SB 660 which was signed into law earlier this month. the new law prohibits employers from taking action against an employee because of reproductive health care decisions by the employee or their dependents.  It bars employers from accessing information about employees' reproductive health decision making or requiring waivers by employees of their right to make such decisions. The complaint (full text) in CompassCare v. Cuomo, ND NY, filed 11/14/2019), alleges in part:

SB 660 is a transparent attempt to meddle in the affairs of religious and pro-life organizations—including but not limited to pregnancy care centers, churches, and schools—by forcing them to employ and associate with those persons who do not share or live by the organizations’ beliefs regarding abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman.....

Taken together, these requirements compromise the very reason for being of these organizations, which is to promote life, oppose abortion, and teach and live a sexual ethic consistent with biblical principles.

The suit claims that the law violates their free speech and free exercise rights. CNA reports on the lawsuit.

Ministerial Exception Requires Dismissal of Elementary Teacher's Pregnancy Discrimination Suit

In Hutson v. Concord Christian School, LLC, (ED TN, Nov. 4, 2019), a Tennessee federal district court dismissed an employment discrimination suit brought by an elementary teacher at a Baptist school.  The teacher's contract was not renewed after she became pregnant out of wedlock. The court held that the ministerial exception doctrine requires dismissal of plaintiff's claims.

New York Legislature Passes Bill To Bar Employment Discrimination Based On Religious Attire

The New York State Legislature on Tuesday gave final passage to A4024 (full text) which adds to the state's anti-discrimination law a specific ban on employment discrimination because of a person's attire, clothing, or facial hair worn in accordance  with  the requirements  of  his  or her religion. The employer is excused from this obligation if reasonable accommodation is impossible. AP, reporting on the passage of the bill, says it was particularly supported by a coalition of Sikh houses of worship. [Thanks to Blog from the Capital or the lead.]

UPDATE: New York Gov. Andrew Cuomo signed the bill on Aug. 9.

Catholic School Challenges City's Anti-Discrimination Ordinance

A small Catholic college preparatory school in South Euclid, Ohio has filed suit in federal district court challenging the city's recently enacted anti-discrimination ordinance.  The complaint (full text) in The Lyceum v. City of South Euclid, Ohio, (ND OH, filed 4/3/2019), challenges the lack of any exemption for religious organizations in the ordinance that bars employment, housing and public accommodation discrimination on the basis of  religion, creed, marital status, gender identity or expression, or sexual orientation, among other categories. It also prohibits statements indication that individuals are unwelcome on these bases. The suit alleges that the ordinance violates the school's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit. Cleveland.com reports on the case.

Churches Withdraw Suit Against Austin's Non-Discrimination Ordinance.

Last week, plaintiffs in U.S Pastor Council v. City of Austin, (WD TX, March 19, 2019) filed a Notice of Dismissal of their lawsuit challenging Austin's anti-discrimination ordinance protecting against employment discrimination on the basis of sexual orientation or gender identity. Plaintiffs argued that the ordinance infringes the rights of churches that will not hire women as senior pastors, or practicing homosexuals or transgendered individuals for any church position (See prior posting.) As reported by the Austin Statesman, the city had argued urged dismissal of the suit on standing and other grounds. (Motion to dismiss.)