National Federation of Blind Settles EEOC's Religious Accommodation Lawsuit

The EEOC announced Monday that the National Federation of the Blind has settled a religious discrimination lawsuit brought by the Commission on behalf of a Hebrew Pentecostal bookkeeper who was refused religious accommodation.  NFB fired Joseph R. Massey II after telling him that he must work on certain Saturdays.  NFB refused Massey's request to instead work Sundays or late on week nights. Under the settlement NFB will pay $25,000 in damages, and agreed to an injunction against religious discrimination, adoption of a non-discrimination policy and training of managers and supervisors.

Muslim Employees Walk Out of Meat Packing Plant In Dispute Over Prayer Breaks

Media are reporting this week on the firing of between 150 and 180 Somali Muslim workers at a Cargill meat packing plant in Fort Morgan, Colorado.  Denver 7 News and Minneapolis Star Tribune report that the action grew out of a dispute that developed when a new shift manager told 11 employees that they could not all take a prayer break at the same time. Ten of these workers resigned, and 177 other workers either did not show up, or clocked in and left, the next day in support.  When the protesters did not return or call in for three days they were terminated.  Apparently the parties are still in touch over the possibility of the employees getting their jobs back. [Thanks to Scott Mange for the lead.]

Cosmetologist Sues After Company Insists That In Training Class He Wear Women's Cosmetics

The Detroit Free Press reported yesterday on an unusual Title VII religious accommodation lawsuit filed Monday in a Michigan federal district court.  Barry Jones is an ordained elder in the Church of God in Christ where he has been preaching for 19 years. He is also trained in cosmetology and licensed by the Michigan Department of Licensing as an esthetician. In 2014 he took a position with an M.A.C. Cosmetics store in a now-closed Detroit area mall and began its training to become a full-time makeup artist.  As part of the training the company insisted that students apply makeup to each other, including blush, eye-shadow, lipstick and false eyelashes, so that they would know how those products feel when they apply them to customers.  Jones refused on religious grounds, quoting Deuteronomy 22:5 that prohibits a man from wearing women's clothing. He said that doing anything that makes him look like a woman would undermine his integrity as a preacher.  The company demoted Jones to be a freelance makeup artist, and he could not find work.  After obtaining a right to sue letter from the EEOC, Jones filed suit.

Jury Awards Fired Muslim Drivers $240,000 In Damages

According to the Peoria Star Journal , an Illinois federal district court jury this week awarded $240,000 in damages to two Muslim men who were fired by the Illinois-based Star Transport, Inc. when the men refused on religious grounds to deliver alcohol.  In March, a federal judge held that the company's failure to accommodate the drivers' religious practices violated Title VII.  The 2-day jury trial focused on the amount of damages.  However it is unclear whether the judgment is collectible since the company went out of business earlier this year. (See prior related posting.)

Court Denies Class Certification In Title VII Religious Accommodation Suit Against GM

In Robinson v. General Motors Company, (ND TX, Oct. 21, 2015), a Texas federal district court  refused to certify as a class action a Title VII suit seeking to require General Motors to allow unpaid days off for observance of holy days by employees whose religious beliefs prohibit them from working or receiving compensation (e.g., vacation pay) on their holidays.  The suit was brought by two employees, one a member of the Tyler Sabbath Fellowship and the other a member of a Messianic Jewish congregation. The court dismissed the suit, saying:

Here, the Court has no way to ascertain the class under Plaintiffs’ definition since the requested class includes any GM employee who might request unpaid religious leave in the future....  Such a class is not adequately defined or ascertainable.

However plaintiffs were given leave to file an amended complaint.  Reuters reports on the decision.

EEOC Sues Health Care System For Denying Religious Accommodation

The EEOC announced that it filed suit yesterday against the Minnesota-based North Memorial Health Care for withdrawing a job offer to a Seventh Day Adventist nurse after she requested an accommodation for religious practices.The federal court lawsuit seeks damages for nurse Emily Sure-Ondara, as well as an injunction barring retaliation against employees or job applicants who request religious accommodations.

EEOC Complaint Alleges Failure To Accommodate Muslim Flight Attendant

According to Michigan Radio, a complaint was filed this week with the EEOC by  Charee Stanley, a Muslim flight attendant now on unpaid leave from ExpressJet.  When Stanley converted to Islam two years ago, she arranged for fellow flight attendants to serve alcohol on her behalf.  However last month another employee filed a complaint that this arrangement required the employee to perform extra work. This led to the airline placing Stanley on leave. The same person allegedly made comments to Stanley about her head covering and expressed anti-Muslim sentiments to her. Stanley seeks reasonable accommodation of her religious beliefs.

Kentucky County Clerk Continues To Refuse To Issue Marriage Licences; Contempt Motion Filed

As reported by the New York Times, Rowan County, Kentucky Clerk Kim Davis yesterday continued to refuse to allow her office to issue marriage licenses because of her religious objections to same-sex marriage, even though the U.S. Supreme Court refused to extend the stay of a district court's ruling against Davis. She told protesters that in refusing to issue licences, she was acting "under God's authority."  In a statement (full text) issued through her lawyers, Davis explained:

To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience. I have no animosity toward anyone and harbor no ill will. To me this has never been a gay or lesbian issue. It is about marriage and God’s word.

So, as announced by the ACLU, yesterday same-sex couples filed a motion (full text) asking the federal district court to hold Davis in contempt.  Plaintiffs also filed a second motion (full text) asking the district court to clarify that its original preliminary injunction requires Davis to issue marriage licenses not just to the named plaintiffs in the lawsuit, but to all individuals who are legally eligible to marry in Kentucky.  The district court has scheduled a contempt hearing for Thursday.

UPDATE: Here is Davis' formal court filing responding to the motion to hold her in contempt.

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

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

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

Court Refuses To Dismiss EEOC's Suit Against Meat Plant Alleging Failure To Accommodate Muslim Employees

In Equal Employment Opportunity Commission v. JBS USA, LLC, (D CO, July 17, 2015), a Colorado federal district court refused to dismiss a suit brought by the EEOC charging that a Swift & Co. beef processing plant in Colorado failed to reasonably accommodate Muslim employees' need to leave the production line to pray at or near sundown. A large number of Muslim employees were terminated in 2008 after they and the company could not reach agreement for accommodations during Ramadan. The suit also charged a pattern of retaliation, discriminatory discipline and discharge.The EEOC previously lost a similar suit involving the same company's processing plant in Nebraska. The court held that the EEOC is not collaterally estopped by that case. Moving to the substantive issues, the court concluded that genuine issues of material fact remain both as to the reasonableness of the company's and the EEOC's proposed accommodations and as to whether the EEOC's proposal imposes an undue hardship on the company. Similarly disputes of fact remain as to the EEOC's discrimination and retaliation claims-- including issues of whether a one-time layoff of numerous employees amounts to a pattern or practice of discrimination. An EEOC press release summarizes the decision which is discussed at greater length at Workplace Class Action Blog.

Indiana Deputy Clerk, Fired For Refusing To Issue Same-Sex Marriage Licences, Sues [UPDATED]

Linda Summers, a former deputy clerk in the Harrison County, Indiana Superior Court Clerk's Office, last week filed a federal court lawsuit alleging violation of her First Amendment free exercise rights. religious discrimination in employment.  The Louisville Courier Journal reports that after the U.S. Supreme Court denied review of a case from Indiana upholding marriage equality, County Clerk Sally Whitis sent an e-mail to all employees telling them that even if it conflicted with their religious beliefs, they were required to process licenses for same-sex couples. Summers responded with a hand-delivered letter asking that she not be required to do so based on her religious beliefs.  She was fired for insubordination. The lawsuit seeks damages and a change in employment practices.

UPDATE: Despite the Courier Journal's quote from plaintiff's counsel that the lawsuit is "just a generic First Amendment free exercise case", now that I have a copy of the complaint it appears that the suit is based on Title VII of the 1964 Civil Rights Act.  Here is the full text of the complaint in Summers v. Whitis, (SD IN, (filed 7/17/2015).  [Thanks to Greg Lipper for the copy of the complaint.]

Employee Who Refused Work In Unit Performing Abortions Loses Title VII Suit

In Montgomery v. Cook County, (ND IL, July 1, 2015), an Illinois federal district court dismissed a Title VII religious discrimination and retaliation lawsuit brought by a medical center employee who was fired after she refused an assignment change that would require her to spend half her time in the reproductive health unit of the Planned Parenthood facility at which she was employed.  She objected on religious grounds to work in the unit that performed abortions, and said she understood from the time she was hired that this concern would be respected. The court held that plaintiff had not alleged facts showing that she was fired "because of" her religious beliefs.  The court conceded that "even if an employer does not intentionally discriminate against an employee, an employer may still be liable under Title VII for failure to accommodate the religious needs of its employees." However here, according to the court:

[Plaintiff] failed to allege any facts regarding whether a request to accommodate [her] beliefs was made... and whether Defendants tried to accommodate [them].... Based on these allegations, I cannot reasonably infer that Defendants failed to try to accommodate Plaintiff's religious beliefs to keep her employed.

It thus dismissed the discrimination claim without prejudice.

The court also rejected Plaintiff's retaliation claim, holding: "Plaintiff has neither plead that she engaged in protected activity nor alleged a substantial link between any protected expression and her termination."

Another Suit Against Local Michigan Police For Forcing Removal of Hijab During Booking

MLive reports that a federal lawsuit was filed yesterday against the Dearborn, Michigan police department for requiring a Muslim woman arrested on traffic charges to remove her headscarf (hijab) during the booking process.  The complaint (full text) in Aldhalimi v. City of Dearborn, (ED MI, filed 6/30/2015), contends that when police booked plaintiff for an unpaid parking violation, they required her to remove her hijab to be photographed despite her religious objections.  This is the third similar suit against local Michigan law enforcement officials this year.

Ohio Police Department Will Continue Hijab Ban

The Columbus, Ohio Police Division has decided to continue its ban on officers wearing headscarves, despite publicity earlier this year about a Somali-American Muslim recruit who dropped out of the department's police academy because of the ban on her wearing a hijab.  According to yesterday's Columbus Dispatch, Deputy Police Chief Michael Woods explained the decision:

We want to interact with all members of the community without a preconceived notion of who we are. We strive to be a nonpolitical, nonreligious organization.

The assistant city attorney representing the Police Division says that case law supports the continued headscarf ban, pointing to the 2007 Pennsylvania federal district court decision in Webb v. City of Philadelphia. (See prior posting).

Taxi Commission Rule Requiring Black Pants Violates Muslim Driver's Religious Freedom

In Naeem v. Metropolitan Taxicab Commission, (MO Cir. Ct., June 22, 2015), a Missouri trial court reversed a license suspension (which had previously been stayed by the court pending litigation) and fines that the St.Louis area taxicab commission had imposed on Muslim taxicab driver Raja Naeem who violated the commission's regulation requiring drivers to wear white shirts and black pants.  Naeem believes that his religion requires him to wear certain clothing, including white pants. The court held that the commission rule violates Naeem's religious liberty. As reported by the St. Louis Post-Dispatch, the Taxicab Commission had granted Naeem a compromise. He could wear a loose-fitting kurta instead of a shirt, if it was white and did not go below his thighs. However his pants or shalwar had to be black. The court held:

In the case at bar, Mr. Naeem's right to express his religious beliefs by his mode of dress is directly infringed by the Commission's dress code. The Missouri Constitution clearly prohibits such infringement. Further commentary would be superfluous.

The court also held that the regulation, even though a generally applicable rule, violates Naeem's First Amendment rights:

No interest other than esthetics is served by the uniform code....  Even under the reasoning of Smith... the regulation must fail. Wearing particular clothing as part of the practice of one's religion also implicates the First Amendment guaranty of freedom of speech. When both speech and religion are affected by a regulation, there must be a compelling justification. 

Muslim Woman Sues Over Required Removal of Hijab During Traffic Offense Booking

WZZM reported yesterday on a federal lawsuit filed last month in Grand Rapids, Michigan by a Muslim woman who was forced by Oceana County Sheriff's officials to remove her hijab (religious head covering) while being processed at the county jail for a minor traffic violation.  On May 17, Fatme Dakroub was falsely arrested for driving with an expired license while vacationing with her family at Lake Michigan sand dunes.  Her request to have a female officer handle her booking was denied, and she was forced to sit for 3 hours bare headed in a holding cell in front of male officers and inmates.

Court Orders Religious Accommodation For Sikh Student Seeking To Enter ROTC Program

In Singh v. McHugh, (D DC, June 12, 2015), the D.C. federal district court ordered the Army to grant a religious accommodation to dress and grooming requirements to allow a Sikh college student to enroll in the ROTC program at Hofstra University.  The court relied heavily on the Supreme Court's decision this term in Holt v. Hobbs in refusing to completely defer to military judgment, saying in part:

The Court finds that defendants have failed to show that the application of the Army’s regulations to this plaintiff and the denial of the particular religious accommodation he seeks further a compelling government interest by the least restrictive means. Therefore ... judgment will be entered in favor of the plaintiff. The Court accords substantial deference to the Army’s judgments concerning the essential role that uniformity plays in military training and effectiveness. But given the tens of thousands of exceptions the Army has already made to its grooming and uniform policies, its successful accommodation of observant Sikhs in the past, and the fact that, at this time, plaintiff is seeking only to enroll in the ROTC program, the Army’s refusal to permit him to do so while adhering to his faith cannot survive the strict scrutiny that RFRA demands. This decision is limited to the narrow issue presently before the Court – plaintiff’s ability to enroll in ROTC with his turban, unshorn hair, and beard – and it does not address plaintiff’s eventual receipt of a contract or an Army commission.

New Manual Suggests Strategies For Churches To Fend Off LGBT Lawsuits

Baptist Press reported yesterday:

The Ethics & Religious Liberty Commission (ERLC) and Alliance Defending Freedom (ADF) have published "Protecting Your Ministry," a legal manual for Southern Baptist churches, schools and ministries. The 44-page booklet is designed to equip SBC and other evangelical churches and institutions with legal protection against sexual orientation and gender identity lawsuits.

The manual includes checklists to guide Christian institutions on maximizing their religious liberty protections under the law and maintaining their freedom to proclaim the Gospel of Jesus. It also provides sample documents -- such as a membership agreement, facility use policy and article for a statement of faith -- to assist churches and other ministries.

The manual is available as an e-book free of charge from the ERLC website.

Supreme Court Rules Against Abercrombie In Title VII Religious Accommodation Case

In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., (Sup. Ct., June 1, 2015), the U.S. Supreme Court today reversed the 10th Circuit's holding on when employers must offer a reasonable accommodation for an employee's religious practices.  The 10th Circuit had held that Abercrombie & Fitch did not violate Title VII of the 1964 Civil Rights Act when it failed to reasonably accommodate Samantha Elauf's need to wear a headscarf because Elauf had not informed the company that she wore the hijab for religious reasons and would need an accommodation. (See prior posting.)  In an opinion by Justice Scalia, 7 justices held:

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions....

A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.

Justice Alito concurred only in the judgment, urging a different test for liability.  He concluded that Abercrombie is liable only if it had knowledge that Elauf wore her headscarf for religious reasons, but that there was sufficient evidence that Abercrombie had such knowledge that the court should not have granted summary judgment to defendants.

Justice Thomas dissented, arguing that Abercrombie's actions did not amount to disparate treatment (or intentional discrimination):

Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf.... In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact.

Politico reports on the decision.

North Carolina Governor Vetoes Bill Allowing Magistrates To Refuse To Perform Same-Sex Marriages

As reported by The Advocate, yesterday North Carolina Governor Pat McCrory, a Republican, announced he would veto Senate Bill 2 (full text), which was sent to him earlier in the day by the state legislature. The bill provides that individual magistrates have the right to recuse themselves from performing all lawful marriages based on any sincerely held religious beliefs and that individual register of deeds personnel similarly may opt out of issuing marriage licenses. The Governor in a statement said (full text):

I recognize that for many North Carolinians, including myself,  opinions on same-sex marriage come from sincerely held religious beliefs that marriage is between a man and a woman. However, we are a nation and a state of laws. Whether it is the president, governor, mayor, a law enforcement officer, or magistrate, no public official who voluntarily swears to support and defend the Constitution and to discharge all duties of their office should be exempt from upholding that oath; therefore, I will veto Senate Bill 2.

According to WITN News, a half hour after issuing the statement, he formally vetoed the bill.  In North Carolina, the Administrative Office of the Courts had previously issued a memo to judges and magistrates stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples, and magistrates have filed suit challenging the absence of a religious liberty exception. (See prior posting.) The Gaston Gazette has reactions from various state legislators to the governor's veto.