Cert Filed In Title VII Sabbath Accommodation Case

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Patterson v. Walgreen Co. (cert. filed 9/14/2018).  In the case, the U.S. 11th Circuit Court of Appeals held that Walgreens had offered reasonable accommodations under Title VII for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. The employee, a training instructor, was fired in the aftermath of his refusal to conduct an emergency training session on a Saturday. (See prior posting.)  The Seventh Day Adventist Church issued a press release announcing the filing of the petition for review.

EEOC Sues Over Hostile Treatment of Catholic Employee

The EEOC announced on Thursday that it had filed a Title VII lawsuit against New Jersey-based Hackensack Meridian Health alleging a manager's religious harassment of a Catholic employee. According to the press release:

Hackensack was aware of but failed to stop a hostile work environment at its Edison, N.J., facility. Shortly after the employee was hired to perform clinical data analytics work, his manager learned he was Catholic and reacted negatively upon seeing a crucifix in the employee's office. Since then, the manager regularly belittled him, screamed at him, and ridiculed his work in front of others.

11th Circuit: Jehovah's Witness Truck Driver Was Offered Reasonable Accommodation

In Walker v. Indian River Transport Co., (11th Cir., July 27, 2018), the U.S. 11th Circuit Court of Appeals affirmed the dismissal of Title VII claims brought by a Jehovah's Witness truck driver who resigned his job alleging a failure to accommodate his need to regularly attend Sunday church services. The milk route to which Bobby Walker, Jr. was assigned required flexibility that included Sunday availability.  The court concluded that Walker's employer, Indian River Transport, offered Walker a reasonable accommodation by offering him other local routes, even though they paid less than the milk route.  The court also rejected Walker's retaliation claim.  Land Line reports on the decision.

Cert. Filed In Funeral Home's Firing of Transgender Employee

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, (cert. filed 7/20/2018).  In the case, the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. The court, rejecting the employer's religious freedom defense, held that the employee was illegally fired because of her failure to conform to sex stereotypes. ADF issued a press release announcing the filing of the lawsuit.

Title VII Race Provisions Cover Anti-Jewish Discrimination

In Bonadona v. Louisiana College, (WD LA, July 13, 2018), a Louisiana federal magistrate judge held that Title VII's ban on racial discrimination in employment is broad enough to cover discrimination based on a person's Jewish heritage. At issue is a Title VII suit by an applicant for a coaching position who was not hired because of his Jewish heritage.  Plaintiff was born to a Jewish mother but converted to Christianity in college.The court said in part:

America is no stranger to anti-Semitism, which is often rooted in prejudice against a person based on his heritage/ethnicity without regard to the person’s particular religious beliefs. Jewish citizens have been excluded from certain clubs or neighborhoods, and they have been denied jobs and other opportunities based on the fact that they were Jewish, with no particular concern as to a given individual’s religious leanings. Thus, they have been treated like a racial or ethnic group that Title VII was designed to protect from employment discrimination based on membership in that group.

AP reports on the decision.

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.

5th Circuit: Title VII Exhaustion Requirement Is Not Jurisdictional

In Davis v. Fort Bend County, (5th Cir., June 20, 2018), the U.S. 5th Circuit Court of Appeals held that the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional. It held that in this case, defendant "forfeited its opportunity to assert this claim" by waiting 5 years and an entire round of appeals all the way to the Supreme Court to raise the defense.  At issue is whether plaintiff exhausted her remedies on her religious discrimination claim, which she had added to her sex discrimination and harassment allegations.  Reuters reports on the decision.

Muslim Woman Sues Under Title VII Over Failure To Accommodate Hijab

A lawsuit was filed in a Virginia federal district court last week against a Hanover, Virginia health care facility by a Muslim woman whose employment as a nursing assistant was terminated because she insisted on wearing a hijab. The complaint (full text) in Brooks v. Medical Facilities of America, Inc., (ED VA, filed 5/31/2018) contends that the employer's refusal to provide a reasonable accommodation violated Title VII of the 1964 Civil Rights Act.  The Richmond Times-Dispatch reports on the lawsuit.

Therapist Sues After Dismissal For Refusing To Counsel Gay Couple

A religious discrimination lawsuit was filed last week in Michigan federal district court by a licensed clinical social worker against her former employer, HealthSource Saginaw.  The complaint (full text) in Lorentzen v. Healthsource Saginaw, Inc., (ED MI, filed 5/11/2018) alleges that Kathleen Lorentzen was informed that she would be terminated, and was subjected to demeaning, threatening and abusive actions, after she insisted on referring a same-sex couple to a different therapist for marriage counseling. Lorentzen says that continuing to counsel the couple would violate her Catholic religious beliefs. The complaint alleges violations of Title VII and of various state law provisions. Thomas More Law Center issued a press release announcing the filing of the lawsuit.

EEOC Sues Company Over Refusal To Accommodate Muslim Women Employees' Dress Requirements

The EEOC announced this week that it has filed a Title VII lawsuit against Washington-state based Aviation Port Services, a  provider of support services to airlines.  The company fired six Muslim female passenger service agents at its Boston location for violating a requirement that they wear company-provided pants or knee-length skirts at work. It refused to accommodate the women's religious obligation to wear long skirts instead.

Factual Questions Remain On Ecclesiastical Abstention and Ministerial Exception

In Kelley v. Decatur Baptist Church, (ND AL, May 1, 2018), an Alabama federal magistrate judge refused to dismiss a Title VII pregnancy discrimination lawsuit brought by a maintenance and child care employee of a church.  The court held that factual questions exist as to whether the ecclesiastical abstention doctrine applies. Plaintiff claims she was fired because she was pregnant.  Defendant contends she was fired because she engaged in sexual conduct outside of marriage in violation of Biblical standards.  The court also held that factual questions exist as to whether the ministerial exception doctrine applies.  Plaintiff challenged defendant's characterization of her as a minister charged with equipping, training, and evangelizing the next  generation according to biblical standards and morals.

Jury Awards $5.1M In EEOC Suit For Religious Coercion of Employees

According to an EEOC press release, after a 3-week trial in federal district court in New York, a jury awarded $5.1 million in compensatory and punitive damages against United Health Programs of America, Inc. and its parent company for coercing ten employees to engage in religious practices, creating a hostile work environment for nine of them, and firing one employee for opposing these practices.  The EEOC, which filed suit on behalf of the employees, reports:

CCG employees were forced to engage in a variety of religious practices at work, including prayer, religious workshops, and spiritual cleansing rituals. These practices were part of a belief system called "Harnessing Happiness" or "Onionhead," created by the aunt of CCG's CEO's. The judge previously ruled such practices constituted a religion, for purposes of Title VII. The aunt, employed by CCG as a consultant and fully supported by CCG's upper management, spent substantial time in the company's offices from 2007, implemented the religious activities at the workplace and had a role in employee hiring and firing.

The EEOC also plans to seek injunctive relief and back pay for the fired employee.

Fired Mormon City Manger Can Move Ahead Under Title VII Against Some Defendants

In Fuqua v. City of Altus, (WD OK, April 6, 2018), an Oklahoma federal district court allowed the former City Manager of an Oklahoma city to proceed with his Title VII religious discrimination suit against the city and its mayor, but dismissed his claims against two other city officials.  Plaintiff David Fuqua alleges that he was fired from his position because he is a Mormon and because he hired Mormons for the positions of Assistant City Manager and Public Works Director.  The court dismissed two defendants, the Chief Financial Officer and the City Clerk, because they had no formal role in evaluating Fuqua or in the decision to fire him, saying in part:

There is plenty of evidence that they agitated against plaintiff, or for his removal, on the basis of his religion, but there is none that suggests they played some formal role in the City’s dealings with plaintiff. Complaints and gossip, even lots of it, do not arise to the level of involvement necessary to establish the necessary causative link.

Suit Over "In Christ" E-Mail Signature Moves Ahead

In Mial v. Foxhoven, (ND IA, April 4, 2018), an Iowa federal district court refused to dismiss Title VII and state religious discrimination claims brought by Michael Mial who had been fired from his position as a security specialist in the Civil Commitment Unit for Sexual Offenders (CCUSO) of the Iowa Department of Human Services.  Mial's dismissal resulted from his insistence on using the valediction "In Christ" on e-mails he sent on his CCUSO e-mail account, in violation of a rule against personal messages in e-mail signatures.  The court found that Mial's signature message was part of his "religious belief that he must proclaim his faith in everything he does." The court rejected CCUSO's claim that  Establishment Clause concerns justified its refusal to offer Mial a reasonable accommodation, saying in part:

there is scant evidence that Mial’s use of “In Christ” at the end of work-related email messages (such as in various requests for shift changes or time off) would lead the public to assume CCUSO was endorsing a religion. 

The court concluded:

[D]efendants have not shown as a matter of law that the Establishment Clause prevented them from offering an accommodation. Nor have they demonstrated, as a matter of law, that Mial’s email valediction caused any disruption in the workplace or violated any neutral, generally applicable rules or procedures. Of course, the jury could decide that Mial’s use of the valediction violated neutral policies about professional conduct and following supervisory directives. If so, then a duty to accommodate may not apply. However, I am not able to reach such a conclusion as a matter of law. Defendants’ motion for summary judgment must be denied.

11th Circuit: Employer Offered Reasonable Accommodation

In Patterson v. Walgreen Co., (11th Cir., March 9, 2018), the U.S. 11th Circuit Court of Appeals, in a suit alleging religious discrimination and retaliation, held that Walgreens had offered reasonable accommodations for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. The employee, a training instructor, was fired in the aftermath of his refusal to conduct an emergency training session on a Saturday.  The court said in part:

To comply with Title VII, an employer is not required to offer a choice of several accommodations or to prove that the employee’s proposed accommodation would pose an undue hardship; instead, the employer must show only “that the employee was offered a reasonable accommodation, ‘regardless of whether that accommodation is one which the employee suggested.’” ...

Walgreens decided to terminate his employment only after he failed to conduct the emergency training session, insisted that Walgreens guarantee that he would never have to work on his Sabbath, and refused to consider other employment options within the company without such a guarantee.

[Thanks to Steven H. Sholk for the lead.]

6th Circuit: Funeral Home Violated Title VII By Firing Transgender Employee

In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., (6th Cir., March 7, 2018), the U.S. 6th Circuit Court of Appeals reversed the dismissal of a Title VII religious discrimination suit against a Michigan funeral home that fired Aimee Stephens, a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a 49-page opinion, the court held first that Stephens was illegally fired because of her failure to conform to sex stereotypes.  The funeral home owner decided to fire Stephens "because Stephens was 'no longer going to represent himself as a man' and 'wanted to dress as a woman'."

The court also held that:

discrimination on the basis of transgender and transitioning status violates Title VII.

Moving to defenses raised by the funeral home, including its defense under RFRA which the district court had relied upon, the court held:

the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest.

Explaining its rejection of defendant's claim of a substantial burden under RFRA, the court said in part:

...simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” ... —constitutes “an honest conviction.”...  But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.

Slate reports on the decision. [Thanks to Steven H. Sholk and Tom Rutledge for the lead.] 

Inmate Is Not "Employee" Under Title VII

A Texas federal magistrate's decision in Smith v. Gonzales, 2018 U.S. Dist. LEXIS 31836 (ND TX, Feb. 2, 2018), adopted by the court at 2018 U.S. Dist. LEXIS 30160 (Feb. 26, 2018), rejected a Title VII religious discrimination claim filed by a state prison inmate.  Plaintiff David Wayne Smith alleged religious discrimination because he was required to work in his prison job on the Sabbath. The court, relying in part on a 1986 EEOC opinion, held that the inmate is not an "employee" for purposes of Title VII of the 1964 Civil Rights Act.

2nd Circuit En Banc: Title VII Covers Sexual Orientation Discrimination

In a 10-3 en banc decision yesterday, the U.S. 2nd Circuit Court of Appeals, overturning prior 2nd Circuit precedent, held that "sexual orientation discrimination constitutes a form of discrimination 'because of . . . sex,' in violation of Title VII" of the 1964 Civil Rights Act.  In Zarda v. Altitude Express, Inc., (2d Cir., Feb. 26, 2018), Chief Judge Katzmann filed the majority opinion which concluded that (1) sexual orientation discrimination is motivated in part by sex and thus is a subset of sex discrimination; (2) sexual orientation discrimination involves gender stereotyping; and (3) sexual orientation discrimination involves associational discrimination.  Only four other judges joined this opinion in full.

Judge Pooler, without a separate opinion, joined the gender stereotyping and associational discrimination rationales.  In concurring opinions, Judge Jacobs and Judge Sack agreed only with the associational discrimination approach.  Judge Cabranes concurred only in the judgment, saying sexual orientation is a function of sex.  Judge Lohier concurred on the basis of the majority's textualist approach.
Judges Lynch, Livingston and Raggi dissented based largely on legislative history and the intent of the drafters of Title VII. 

In the case, the Justice Department and the EEOC had filed amicus briefs taking opposite positions from each other.  (See prior posting.)  AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

College Coach Sues Alleging He Was Not Hired Because of His Jewish Heritage

A Title VII lawsuit was filed in Louisiana federal district court this week by a former assistant football coach at the Baptist-affiliated Louisiana College.  Plaintiff Joshua Bonadona, whose mother is Jewish, was raised in the Jewish religion.  He converted to Christianity while a student at Louisiana College, and was employed as an assistant football coach there for two years after he graduated.  He then went to Southeast Missouri State University for graduate work combined with a coaching position.  Two years after that he applied for an Assistant Coach opening that had arisen back at Louisiana College.  The complaint (full text) in Bonadona v. Louisiana College,  (WD LA, filed 2/21/2018), alleges that Bonadona received assurances from Louisiana College's head coach that he would be hired for the position.  In reliance on that he resigned his Southeast Missouri position.  However Louisiana College president, Dr. Rick Brewer, vetoed the hiring because of Bonadona's "Jewish blood." The lawsuit contends:

People of Jewish heritage are protected as a distinct race under Title VII of the Civil Rights Act of 1964.  Sharre Tefila Congregation v. Cobb, 481 U.S. 615 (1987).  As such, employment discrimination against an individual based upon his Jewish ethnic heritage is prohibited under 42 U.S.C. 2000e-2.

Yahoo Sports and the Bayou Brief report on the lawsuit.

UPDATE: Louisiana College issued a statement denying allegations in the lawsuit.

Suit Claims University Employee Dismissed Because of Anti-Muslim Discrimination

A former employee of Youngstown State University's Center for Student Progress filed suit this week claiming that his termination stemmed from discriminatory treatment against him because he is a Muslim.  The complaint (full text) in Jadun v. Youngstown Sate University, (ND OH, filed 1/23/2018) claims that the employee's dismissal violated Title VII of the 1964 Civil Rights Act as well as Ohio anti-discrimination law (ORC 4112.02). WFMJ News reports on the lawsuit.