EEOC Sues United Methodist's Global Ministries

The EEOC announced Friday that it has filed a federal lawsuit against  the Atlanta-based Global Ministries of the United Methodist Church, claiming that it fired an employee for complaining about racial discrimination. The lawsuit alleges that an employee who was hired to write articles for Global Ministries' website was fired after she complained several times to the human resources department about discriminatory and retaliatory treatment.

SDNY: Title VII Anti-Retaliation Provision Does Not Apply To Critic of Religious Group's Gender Discrimination

In Aparicio v. Christian Union, Inc., (SD NY, March 29, 2019), a New York federal district court dismissed a Title VII retaliation claim brought by an employee of a religious organization. Christian Union is a non-profit organization that operates student leadership organizations at Ivy League colleges. Plaintiff, CUI's former Director of Public Affairs, claims that he was fired because he complained that CUI's policy of excluding women from leadership positions in the organization violates Title VII's anti-discrimination provision. Title VII explicitly allows religious organizations to discriminate on the basis of religion (but not on other bases).  The court here, however, went further. While concluding that the ministerial exception doctrine does not apply, it held:

... CUI's "complementarian" policy, which reserves executive positions for men, reflects its right to choose who performs certain religious roles within the organization. Therefore, in this case, the Free Exercise Clause bars the Court from asserting Title VII's secular sensibilities on who CUI allows to perform its highest religious roles.

Furthermore, Title VII's anti-retaliation provision does not apply when the basis for the alleged retaliation are an employee's objections to his or her employer's religious discrimination.... Essentially, Title VII "permits religious organizations to advance their religious missions by discriminating based on religion in employment," and, where a retaliation claim is based on complaints directed toward that permissible discrimination, Title VII's anti-retaliation provision "does not apply." Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 246, 254 (S.D.N.Y. 2005).

Accordingly, applying Title VII's discrimination and retaliation provisions to CUI's "complementarian" policy violate the Free Exercise Clause. For that reason, Plaintiff's Title VII anti-retaliation claim must be dismissed.

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.

Atlanta Agrees To $1.2M Settlement With Fired Fire Chief

A $1.2 million settlement has been reached in Cochran v. City of Atlanta, Georgia, the suit brought by a former Atlanta fire chief who was dismissed from his position over a book which he wrote.  The book, designed as a religious guide for men, called those who engage in extramarital or in homosexual sex "wicked" and "ungodly." A court found the city's pre-clearance rules for outside employment unconstitutional. (See prior posting.) The Atlanta Journal-Constitution reported that the settlement amount was approved by an 11-3 vote at Atlanta City Council meeting Monday.

Fired Atlanta Fire Chief Wins Challenge To Outside Employment Rules

In Cochran v. City of Atlanta, Georgia, (ND GA, Dec. 20, 2017), a Georgia federal district court gave a partial victory to a former Atlanta fire chief who was dismissed from his position over a book which he wrote.  The book, designed as a religious guide for men, called those who engage in extramarital or in homosexual sex "wicked" and "ungodly."  Plaintiff Kevin Cochran contends that he was fired because of his religious speech.  The city says Cochran was fired for ignoring the city's pre-clearance rules for outside employment, facilitating a public relations campaign against the mayor and the city, and also creating city vulnerability for employment discrimination claims. (See prior related posting.)

The court dismissed plaintiff's retaliation, free speech and free exercise claims.  However the court refused to dismiss plaintiff's challenges to the city's pre-clearance rules for outside employment.  The court granted plaintiff summary judgment on his prior restraint challenge to the pre-clearance rules, as well as on his claim that the rules are unconstitutional content-based restrictions that invite unbridled discretion by the city.  AP reports on the decision, indicating that the two sides have different views as to what issues remain to be determined in the case.

6th Circuit Rejects Law Prof's Claim That $666 Raise Was Retaliatory As "Mark of the Beast"

In Lifter v. Cleveland State University, (6th Cir., Sept. 12, 2017), the U.S. 6th Circuit Court of Appeals affirmed an Ohio federal district court's dismissal of a lawsuit by two former Cleveland State University Law School professors (husband and wife) who claim that the dean had retaliated against them because of the husband's activity in unionizing the faculty.  Plaintiff Sheldon Gelman argued that part of the retaliation was awarding him a raise of only $666 for the year.  He contended that not only did he deserve more, but that the dean chose the $666 figure as an intentional invocation of the biblical "mark of the beast."  The court dismissed Gelman's claim, saying:

Construing the facts in the light most favorable to Gelman, he cannot show that his union organizing activities were a substantial or motivating factor in these alleged injuries.

Law.com reports on the decision.

Retaliation Suit By Dismissed Nursing Student Moves Ahead

In Brown v. William Rainey Harper College, 2017 U.S. Dist. LEXIS 121333 (ND IL, Aug. 1, 2017), an Illinois federal district court allowed a student who was dismissed from the Practical Nursing Certificate Program at William Rainey Harper College to move ahead with her complaint that the action taken against her resulted from her practice of praying with her patients, as well as because of her complaints to the Department of Education's Office of Civil Rights.

3rd Circuit Gives Muslim Inmate Victory On Retaliation and RFRA Claims

In Mack v. Warden, (3d Cir., Oct. 11, 2016), the U.S. 3rd Circuit Court of Appeals in a lengthy opinion gave an unusual victory to an inmate who claims that anti-Muslim harassment by two correctional officers caused him to refrain from praying while at his paid work assignment at a federal prison commissary.  He contends that he was terminated from his work assignment for orally complaining to a supervisor about the harassment.  The suit was filed pro se, and inmate Charles Mack lost at the trial court level.  However he prevailed on a number of his claims on appeal at which he was represented by law students from Duke University's Appellate Litigation Clinic.

One of the defendant officers slapped Mack on his back, sticking an "I Love Bacon" sign on him, and then threatened to have him fired when he later objected.  The appeals court held 2-1 that Mack's oral complaint to a prison guard about the mistreatment qualifies as a petition for the redress of grievances protected by the 1st and 14th Amendments.  It thus supports a 1st Amendment retaliation claim. Second the appeals court held unanimously that a claim for damages under RFRA (as opposed to RLUIPA) lies against individual officers for their ultra vires acts, even though a prison policy or regulation is not being challenged, and that the alleged conduct substantially burdened plaintiff's religious exercise. The court however refused to extend a Bivens damage remedy for 1st Amendment free exercise violations and also dismissed plaintiff's equal protection claim. Penn Live reports on the decision.

EEOC Seeks Comment On Proposed Guidance On Retaliation

The EEOC yesterday announced that it is seeking public comment on a proposed Enforcement Guidance on Retaliation and Related Issues.  The 76-page Guidance document (full text) includes examples of retaliatory conduct, remedies and best practices for employers.  In connection with religious discrimination in employment, the Guidance says in part:

[P]ersons requesting religious accommodation under Title VII are protected against retaliation for making such requests.  Although a person making such a request might not literally “oppose” discrimination or “participate” in a complaint process, s/he is protected against retaliation for making the request.