Christian Parents Challenge Virginia Ban On Religious Discrimination In Hiring Babysitter

Suit was filed last week in a Virginia state trial court by Christian parents of a developmentally disabled child who sought to employ a regular babysitter who is Christian to help raise their daughter in the Christian tradition. The Virginia Human Rights Act was amended in July 2021 to bars use of religion as a motivating factor in hiring domestic workers, including babysitters, and to bar expressing religious preferences in employment ads. The complaint (full text) in Woodruff v. Herring, (VA Cir. Ct., filed 10/28/2021) contends that application of this law to plaintiffs burdens their free exercise of religion in violation of the Virginia Religious Freedom Restoration Act. Foundation for Parental Rights issued a press release announcing the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

Canadian Court Upholds COVID Restrictions On Churches

In Gateway Bible Baptist Church v. Province of Manitoba, (MBQB, Oct. 21, 2021), a Manitoba (Canada) trial court, in a 156-page opinion, upheld against constitutional challenges the public health restrictions imposed by the province on gatherings at places of worship and at private homes.  Plaintiffs were several churches and individuals. The court concluded that while the restrictions infringed the rights to freedom of conscience and religion; freedom of thought, belief, opinion and expression; and freedom of peaceful assembly, the Public Health Orders are constitutionally justifiable as reasonable limits under Section 1 of the Charter of Rights and Freedoms. The court said in part:

[T]he decision to temporarily close places of worship and otherwise limit the size of gatherings, was rational, reasoned and defensible in the circumstances of an undeniable public health crisis.

The court went on to conclude that the restrictions did not infringe the rights of liberty or security and did not amount to religious discrimination. The court said in part:

It is the position of the applicants that the impugned PHOs discriminate on the basis of religion in that they classify liquour, cannabis and big-box retailers as “essential” and therefore allow them to remain open [while they] classify churches and religious gatherings as “non-essential”.... Put simply, the applicants submit that it is discriminatory to allow people to assemble in liquor and grocery stores, but not worship at church.... [T]he applicants have inaccurately described Manitoba’s use of the adjective “essential” as it relates to churches and religious gatherings just as they have also failed to appreciate that the distinction in question (between what is permitted to remain open and what must remain closed) is not based on religion.

The Justice Centre for Constitutional Freedoms issued a press release discussing the decision.

Supreme Court Denies Cert. In Case Alleging Religious Belief Discrimination

The U.S. Supreme Court on Tuesday denied review in Pasadena Republican Club v. Western Justice Center, (Docket No. 20-1773, certiorari denied 10/12/2021). (Order List). In the case, the U.S. 9th Circuit Court of Appeals dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC.  The 9th Circuit (full text of opinion) held that WJC was not a state actor for purposes of the Republican Club’s constitutional claims, and that the the government did not become vicariously liable for the discretionary decisions of its lessee. (See prior related posting.) Pasedena Now reports on the Court's action.

Religious Accommodation That Violates OSHA Rules Not Required

In Hamilton v. City of New York, (ED NY, Sept.28, 2021), a New York federal district court dismissed religious discrimination and failure to accommodate claims brought by a Jewish New York City firefighter. Plaintiff, who wore a beard for religious reasons, was transferred from full-duty to light duty because OSHA regulations preclude firefighters with beards from wearing close fitting respirators. The court held that NYFD cannot be held liable for failing to offer an accommodation that is expressly prohibited by federal law.

Suit Says Trader Joe's Failed To Accommodate Religious Objection To COVID Vaccination

Suit was filed earlier this month under Title VII and California state law by a 26-year Christian employee of Trader Joe's who was fired after the company refused to adequately accommodate his religious objections to being vaccinated against COVID. Plaintiff Gregg Crawford was initially granted a religious exemption from the company's mandatory vaccination policy. However an important management meeting was limited to vaccinated employees, and the company refused to arrange an accommodation that would allow Crawford to attend in person or remotely. He was told his non-attendance would negatively affect his performance review. Shortly after Crawford complained about this and consulted an attorney, he was fired. The complaint (full text) in Crawford v. Trader Joe's Company, (CD CA, filed 9/7/2021), alleges violations of Title VII of the 1964 Civil Rights Act and of state anti-discrimination laws. KTLA News reports on the lawsuit.

After 20 Years Of Litigation, Suit On Religion In Child Placement Is Settled And Dismissed

This week, a Kentucky federal district court dismissed the remaining Establishment Clause claim in Pedreira v. Sunrise Children's Services, Inc., (WD KY, Sept. 8, 2021), after both plaintiffs and defendants filed a joint motion for voluntary dismissal with prejudice. The case, which involves a challenge to Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization, has been in litigation for 20 years. On Sept. 9, Americans United announced that in January the parties had entered an 18-page, single-spaced Settlement Agreement (full text) which sets out in detail provisions to prevent children in child care facilities and foster home placements from having unwanted religious activities imposed and assures respect for a child's religious preference.  It also requires respect for a child's sexual orientation and gender identity. Parts of the settlement were required to be incorporated into state regulations. A previous settlement agreement had been held unenforceable. (See prior posting.)

Muslim Police Officer Can Move Ahead With Complaint On Accommodation Of Beard

In Hashmi v. City of Jersey City, (D NJ, Sept. 7, 2021), a New Jersey federal district court allowed a Sunni Muslim police officer to move ahead on some, but not all, of his challenges to a Jersey City Police Department order. The Order (later amended) required officers who wear beards for religious reasons to maintain them at no more than one-half inch in length unmanicured. Plaintiff claims this conflicts with an accommodation letter previously issued to him which requires his beard to be "neat and clean." He also claims subsequent harassment and retaliation. The court rejected plaintiff's free exercise claim, finding that the Order is neutral and generally applicable. The court also rejected plaintiff's equal protection challenge, and his Title VII religious discrimination claim. However the court permitted him to move ahead with his Title VII failure-to-accommodate claim and his Title VII and state law retaliation claims.

Navy Chaplain's Claim Dismissed On Res Judicata Grounds

In Lancaster v. Secretary of the Navy, (ED VA, Aug. 30, 2021), a Virginia federal district court dismissed on res judicata grounds a suit by a former Navy chaplain (now deceased) who claims that his failure to receive a promotion in rank resulted from retaliation, hostility and prejudice toward non-liturgical Protestant chaplains. The court concluded that plaintiff's claims were previously adjudicated in a 2018 decision in In re Navy Chaplaincy.

Suit Challenges Vaccine Mandate Without Religious Exemption

Suit was filed yesterday in a Maine federal district court on behalf of over 2000 health care workers (all filing anonymously) challenging Maine Governor Janet Mills' order that all health care workers be vaccinated against COVID-19, without any accommodation or exception for religious objections. Medical exemptions are still available.  The complaint (full text) in Jane Does 1-6 v. Mills, (D ME, filed, 8/25/2021), alleges free exercise and religious discrimination violations, saying in part:

The dispute in this case is not about what accommodations are available to Plaintiffs or whether accommodation of Plaintiffs’ sincerely held religious objections can be conditioned on compliance with certain reasonable requirements....The dispute is about whether Defendants are required to even consider a request for reasonable accommodation of Plaintiffs’ sincerely held religious beliefs....

Plaintiffs all have sincerely held religious beliefs that preclude them from accepting or receiving any of the three available COVID-19 vaccines because of the connection between the various COVID-19 vaccines and the cell lines of aborted fetuses, whether in the vaccines’ origination, production, development, testing, or other inputs....

Plaintiffs have all informed their respective employers that they are willing to wear facial coverings, submit to reasonable testing and reporting requirements, monitor symptoms, and otherwise comply with reasonable conditions that were good enough to permit them to do their jobs for the last 18 months with no questions asked.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

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.]

8th Circuit: University of Iowa Discriminated Against Christian Student Group

In Intervarsity Christian Fellowship/ USA v. University of Iowa, (8th Cir., July 16, 2021), the U.S. 8th Circuit Court of Appeals held that the University of Iowa violated the 1st Amendment rights of Intervarsity Christian Fellowship when the University applied its Human Rights Policy against ICF in a discriminatory manner. ICF required students seeking leadership positions to affirm a statement of faith based on biblical Christianity-- including the belief that same-sex relationships were against the Bible. The court said in part:

For decades, the University permitted RSOs to base their membership and leadership on religious affirmations or other traits that are protected by the Human Rights Policy.... In fact, the University still permits this; but it didn’t for InterVarsity. The district court found that the defendants likely violated BLinC’s constitutional rights and ordered the University to apply the Human Rights Policy equally to all RSOs. But instead of doing that, the University started a compliance review that prioritized religious organizations. That review led to InterVarsity’s deregistration, along with other religious groups. The University’s fervor dissipated, however, once they finished with religious RSOs. Sororities and fraternities got exemptions from the Human Rights Policy. Other groups were permitted to base membership on sex, race, veteran status, and even some religious beliefs.

Take LoveWorks, for example. It was formed by the student who was denied a leadership role in BLinC. LoveWorks requires its members and leaders to sign a “gay-affirming statement of Christian faith.’” ... Despite that requirement—which violates the Human Rights Policy just as much as InterVarsity’s—the University did nothing. 

We are hard-pressed to find a clearer example of viewpoint discrimination.

Becket issued a press release announcing the decision.

DOJ's Special Counsel For Religious Discrimination Is Retiring

In an e-mail sent out yesterday, Eric Treene who has been the Justice Department's Special Counsel for Religious Discrimination since 2002 announced that he is retiring as of July 2.  Religious discrimination matters will apparently be handled by several individuals in DOJ's Civil Rights Division as part of their portfolios. Treene says:

The Civil Rights Division has consolidated its complaint interface for all types of claims.  Any civil rights complaint may be filed using the complaint portal here: https://civilrights.justice.gov/. This includes civil cases as well as hate crimes, whether against persons or property. As always, we encourage crime victims to call 911 or a local law enforcement non-emergency number before contacting the Department of Justice.   

Additionally, questions involving RLUIPA land matters use may be directed to Ryan Lee, RLUIPA coordinator at the Housing and Civil Enforcement Section, at Ryan.Lee@usdoj.gov. Questions regarding RLUIPA institutionalized persons cases and issues should be directed to Tim Mygatt, timothy.mygatt@usdoj.gov and Deena Fox, Deena.Fox@usdoj.gov in the Special Litigation Section.

Carrie Pagnucco, a career attorney with experience in RLUIPA litigation, is serving in the Office of the Assistant Attorney General for the Civil Rights Division, and has religion-related matters as part of her portfolio. She can be reached at Carrie.Pagnucco@usdoj.gov. She is the person to reach out to an all issues and matters other than RLUIPA (though she can help with RLUIPA too).

For policy related matters you also can reach out to Sheila Foran, Chief of the Policy Section at the Civil Rights Division, at Sheila.Foran@usdoj.gov.

Treene says that he will stay involved in the religious liberty field through teaching and writing, and furnishes his permanent contact information as etreene@gmail.com.

British Court Says Removal of Franklin Graham Bus Ads Violated Religion and Speech Rights

In Lancaster Festival of Hope With Franklin Graham v. Blackpool Borough Council, (Manchester Cty. Ct., April 1, 2021), a British trial court held that the Equality Act 2010 and the European Convention on Human Rights were violated when banner ads for the Lancaster Festival of Hope were removed from public buses. According to the court:

Upon the Defendants receiving complaints from members of the public about the advertisements, the advertisements were removed from the buses. The complaints related to Franklin Graham and his association with the Festival, and predominantly referred to his views on homosexuality and same-sex marriage as being offensive.

In finding a violation of the Equality Act, the court said in part:

The complaints arose from the objections of members of the public to the religious beliefs. The removal came about because of those complaints. I find it also came about because the Defendants allied themselves on the issue of the religious beliefs with the complainants, and against the Claimant and others holding them. If there were any doubt about that it is made explicit by the content of the press statement issued on behalf of the Second Defendant when the advertisements were removed....

Finding a violation of the European Convention, and thus of the Human Rights Act 1998, the court said in part:

Yes, the Claimant was still able to advertise its event and yes, it was still a success. But “it turned out all right in the end” cannot be an answer to the question of whether the interference with a fundamental right to freedom of expression can be justified. The Defendants had a wholesale disregard for the right to freedom of expression possessed by the Claimant. It gave a preference to the rights and opinions of one part of the community without having any regard for the rights of the Claimant or those who shared its religious beliefs. It made no effort to consider whether any less intrusive interference than removing the advertisements altogether would meet its legitimate aim.

Christianity Daily reports on the decision.

Court Rejects Claims of Discrimination Against Yemeni Family Members Of US Citizens

In Almakalani v. McAleenan, (ED NY, March 16, 2021), a New York federal district court rejected a number of challenges to alleged unreasonable delays by the federal government in adjudicating whether 86 family members of petitioners could lawfully immigrate from Yemen as family members of U.S. citizens. Special procedures were promulgated in 2012 for Yemeni family members because of the unreliability of documentation from Yemen. Plaintiffs alleged that the special procedures "are the result of a conspiracy between the Defendants—all members of former President Donald J. Trump’s administration, including former President Trump himself—to halt Yemeni Muslim immigration to the United States."  The court said in part:

Plaintiffs’ only specific factual allegations of animus or intentional discrimination evoke Islamophobic rhetoric in statements and actions attributable to former President Trump and his administration.... Those statements and actions do not specifically relate to the Yemen Guidance or the adjudication of Form I-130 petitions. Moreover, USCIS issued and implemented the Yemen Guidance in 2012, during the administration of former President Barack Obama and prior to any of the statements and actions that allegedly support Plaintiffs’ claims of discriminatory animus....

Plaintiffs claim that Defendants have violated the Establishment Clause of the First Amendment by subjecting Form I-130 petitions brought by and on behalf of Muslim individuals to higher burdens of proof than those petitions brought by or on behalf of non-Muslims....

To the extent that Form I-130 petitions on behalf of Yemeni beneficiaries are adjudicated differently than petitions on behalf of beneficiaries from other countries, Defendants have articulated a logical justification grounded in the unreliability of Yemen’s official processes for maintaining and issuing civil records. That justification is unrelated to matters of religious faith or affiliation, and it provides a rational explanation for the challenged policies and practices. Accordingly, Plaintiffs fail to state a claim under the Establishment Clause of the First Amendment.

Consent Decree Orders End To Village's Zoning Rules That Discriminate Against Orthodox Jewish Residents

Yesterday a New York federal district court in United States v. Village of Airmont, (SD NY, March 15, 2021), entered a consent decree requiring modification of the village's zoning code. A press release by the Department of Justice describes the order:

[The preliminary injunction mandates] that the Village... immediately cease enforcement of zoning code provisions enacted in 2018 that discriminate against Orthodox Jewish residents in violation of the Religious Land Use and Institutionalized Persons Act....  [T]he zoning code provisions at issue limit the amount of space in private homes that can be used as a Residential Place of Worship..., restrict whom residents are allowed to invite into their own homes to pray, and expand the use of an arbitrary, drawn-out application process designed to delay and effectively deny permits for even minor alterations to private houses.... [T]he Government presented evidence that the provisions had been motivated by discriminatory animus and served no legitimate governmental purpose....

EEOC General Counsel Fired By Biden

Yesterday morning, President Biden, through an e-mail (full text) from the White House Office of Personnel, requested the resignation of Equal Employment Opportunity Commission General Counsel Sharon Gustafson. Gustafson was a Trump appointee. As pointed out by the Washington Post in its report on these developments:

Gustafson was confirmed by the Senate to a four-year position in August 2019. She had raised the hackles of civil rights, LGBTQ and women’s groups during her confirmation hearing, by what they saw as “evasive” answers she gave about the rights of LGBTQ workers.

In a lengthy letter to the President (full text) just hours after the request for her resignation, Gustafson refused to resign. Her letter reads in part:

I am transmitting with this letter my Work Group's "Religious Discrimination in Employment: General Counsel Listening Sessions Final Report." This report and a related press release were published on the EEOC's website on January 13, 2021. On February 4. 2021-- shortly after your inauguration-- the report and press release were removed from the EEOC's website.... I can only assume that my resignation would be followed by similar suppression of our work promoting religious freedom.

The White House Office of Personnel responded yesterday to Gustafson with a brief e-mail (full text) informing her that her employment was terminated as of 5:00 pm that day.

2020 EEOC Enforcement Data Released

The EEOC last week released Fiscal Year 2020 Enforcement and Litigation Data. It shows that 3.6% of the claims filed by the EEOC allege religious discrimination. The agency has also published a detailed breakdown of how the EEOC resolved the charges.

Discrimination Claim By Muslim Employee of Sheriff's Office Is Dismissed

In Domino v. County of Essex, (D NJ, Feb. 11, 2021), a New Jersey federal district court dismissed, without prejudice, a religious discrimination and hostile work environment claim brought by an African American Muslim male who was employed by the Bureau of Criminal Identification in the Essex County (NJ) Sheriff's Office. Plaintiff complained that a series of actions by the sheriff that variously ordered no beards, limited the length of beards and required documentation from his Imam of plaintiff's religious observance infringed his rights under various statutes and constitutional provisions. The court dismissed plaintiff's Title VII claim for failure to exhaust administrative remedies. It dismissed his equal protection claim for failure to allege a discriminatory purpose. It also dismissed claims under New Jersey civil rights laws.

Jewish Camps Sue County Claiming Discrimination

Suit was filed last week in a New York federal district court by an Orthodox Jewish organization that operates two summer camps in the Catskill Mountains. The complaint (full text) in Oorah, Inc. v. Schoharie County, N.Y., (ND NY, filed 2/5/2021), alleges in part:

2. Over the past decade, Oorah has time and again been subjected to official action discriminating against it on the basis of its Orthodox Jewish character by Defendants. The goal of these arbitrary and discriminatory actions has been to thwart the operation of Oorah’s religious programs and to deter Oorah’s staff, volunteers and participants from the practice of their Jewish faith. Oorah has repeatedly been forced to obtain relief against Schoharie County in the state courts in order to allow it to operate its religious facilities.

3. This hostility rose to a crescendo in 2020, when Defendants... exploited the COVID-19 pandemic to shut down Oorah’s operations completely in an illegal,  premeditated, arbitrary and discriminatory manner.

Yeshiva World reports on the lawsuit.

Christian Student Group May Move Ahead With Damage Claim For School's Derecognition

In Roe v. San Jose Unified School District Board, 2021 U.S. Dist. LEXIS 16633 (ND CA, Jan. 28, 2021), a California federal district court, while dismissing a number of plaintiffs' claims, permitted the Fellowship of Christian Athletes (FCA) to move ahead on an "as applied" challenge to the school district's nondiscrimination policies. Plaintiffs allege that schools used those policies as a pretext to revoke recognition of student FCA chapters because of their religious beliefs and their speech. At issue is FCA's Sexual Purity Policy that requires FCA leaders to resign their positions if they engage in extramarital sex or homosexual acts. The court held that claims of the individual plaintiffs should be dismissed because they cannot proceed under pseudonyms. It held that individual plaintiffs' claims for prospective relief are moot because they have graduated, and that FCA failed to plead organizational standing for prospective relief. It concluded, however, that claims for damages against defendants in their personal capacities (but not their official capacities) survive a motion to dismiss.