No Title VII Claim Based on "Perceived" Religion

In Cole v. Cobb County School District, (ND GA, Jan. 18, 2018), a Georgia federal district court dismissed Title VII religious discrimination claims brought by a school principal who was transferred to a low performing school far from her home after parents complained about her introduction of mindfulness practices, including yoga, at her school.  The principal is Christian, but parents complained to the school board falsely claiming that the she was a Buddhist and was attempting to indoctrinate their children with Buddhism.  The court held that Title VII does not cover discrimination or reverse discrimination claims based on an individual's perceived, rather than their actual, religion,  The court however did permit plaintiff to move ahead with her Establishment Clause claim.

10th Circuit Reverses Summary Judgment In Title VII Suit By Seventh Day Adventists

In Tabura v. Kellogg USA, (10th Cir., Jan. 17, 2018), the U.S. 10th Circuit Court of Appeals reversed a district court's grant of summary judgment to employer Kellogg in a Title VII suit brought by Seventh Day Adventists who were seeking an accommodation for their Sabbath observance.  The court held:

Title VII required Kellogg reasonably to accommodate Plaintiffs’ religious practice, if Kellogg could do so without incurring undue hardship to its business. Whether Kellogg reasonably accommodated Plaintiffs’ Sabbath observance and, if not, whether Kellogg could do so without undue hardship, must await further proceedings.

In reaching this conclusion, the court rejected arguments that it should adopt per se rules defining reasonable accommodation, and instead emphasized that these issues must be decided on a case specific basis.  Business Insurance reports on the decision.  [Thanks to Steven H. Sholk for the lead.]

EEOC Sues Over Dress Code Accommodation

EEOC announced Monday that it has filed suit against Georgia Blue, a Mississippi- based chain of restaurants which refused to grant an employee a religious accommodation to allow her to wear a blue skirt instead of the required blue jeans.  A job offer to Kaetoya Watkins to work as a restaurant server was rescinded when she told the company that her Apostolic Pentecostal religious belief requires her to wear only skirts or dresses.  AP reports on the lawsuit.

EEOC Sues Doctor Over Required Bible Sessions For Employees

The EEOC last week filed suit against a Texas physician who required employees to attend daily meetings involving Bible study and the application of religious principles to employees' personal lives.  The complaint (full text) in EEOC v. Shepherd, (ND TX, filed 9/20/2017) seeks relief on behalf of 4 employees who were dismissed over objections to the meetings or over personal lifestyles. Courthouse News Service reports on the lawsuit.

2nd Circuit: Pregnancy Discrimination Claim Against Synagogue Can Proceed

In Shultz v. Congregation Shearith Israel of the City of New York, (2d Cir., Aug. 10, 2017), the U.S. 2nd Circuit Court of Appeals held that giving an employee a notice of termination of employment can be an "adverse employment action" under Title VII of the 1964 Civil Rights Act even though the notice is rescinded before the date that the firing becomes effective.  The court thus allowed a long-time Program Director for a New York synagogue to move ahead with her claim that she was given a termination notice because of disapproval of the fact that she was pregnant at the time of her recent marriage.  The court also allowed her to move ahead with her claim under the Family Medical Leave Act. [Thanks to Rabbi Michael Simon for the lead.]

DOJ, EEOC File Opposing Briefs On Title VII and LGBT Discrimination

On Wednesday, the Department of Justice filed an amicus brief (full text) with the U.S. Second Circuit Court of Appeals in the court's en banc rehearing in Zarda v. Altitude Express, Inc.  In the case the Justice Department argued that "Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination."  That position directly contradicts the position taken by the EEOC in an amicus brief (full text) filed last month in the same case.  The EEOC argued that sexual orientation discrimination claims "fall squarely within Title VII’s prohibition against discrimination on the basis of sex." BuzzFeed reports on the Justice Department's brief.

EEOC Files Two Religious Discrimination Suits

Last week, the EEOC filed two religious discrimination cases.  In Michigan, it filed suit against a Tim Horton's franchise for refusing to accommodate an employee who for religious reasons wanted to wear a skirt instead of the pants that are a standard part of the company's uniform. According to the EEOC, the Romulus, Michigan Tim Horton's refused to accept the explanation in a letter from the employee's  Pentecostal Apostolic minister, and fired the employee.

In Maryland, the EEOC filed suit against a security services firm because of its treatment of Muslim security guard Kelvin Davis.  According to an EEOC press release, when Davis complained to management about a racial slur directed at him by his supervisor, the company retaliated against him, among other ways, by revoking the prior accommodation it had granted to allow Davis to wear a beard. Ultimately intolerable working conditions led Davis to resign.

Diocese and Parishes May Be Single Employer For Purposes of Title VII

In Clement v. Roman Catholic Diocese of Erie, (WD PA, June 16, 2017), a Pennsylvania federal magistrate judge refused to dismiss a Title VII sexual hostile work environment claim against two Catholic parishes and the Catholic Diocese of Erie.  Plaintiff served as Facilitator of Religious Education Programs in three parishes. In the case, the Diocese contended that plaintiff was employed only by the parishes, and the parishes claimed that individually each does not employ at least 15 individuals, the minimum number required before Title VII applies.  The court concluded that at this early stage of the litigation, evidence of the dual chain of command over defendant's position and the intermingling of parish and Diocese business affairs raises a reasonable expectation that discovery could reveal sufficient evidence to treat the Diocese and parishes as a single employer.  GoErie reports on the decision.

Staffing Agency Settles EEOC Suit Over Accommodation of Rastafarian

HospitalityStaff, a company that places employees in central Florida's hotel industry, has settled a religious discrimination claim filed against it by the EEOC. According to EEOC's June 14 press release:

The EEOC's lawsuit charged that HospitalityStaff violated religious discrimination law by failing to provide a reasonable accommodation to Courtnay B. Joseph, a Rastafarian, when it required him to cut his dreadlocks to comply with its client's grooming standards in order to keep his position at an Orlando-area hotel. The EEOC said that HospitalityStaff took Joseph off his assignment and never reassigned him.

Under the settlement, the company will pay Joseph $30,000 in damages, will adopt a clear policy on religious and disability accommodation, will provide training to managerial and HR personnel, and will report to the EEOC for 3 years.

Long Skirts, Title II vs. Title VII

In Jalal v. Lucille Roberts Health Clubs, Inc., (SD NY, May 22, 2017), a New York federal district court dismissed a suit brought by a Jewish woman against a health club which refused to allow her to wear a long skirt while using gym equipment.  In the suit, plaintiff Yosefa Jalal alleged that by refusing to allow her to dress as required by her religious beliefs, the health club violated the public accommodation provisions (Title II) of the 1964 Civil Rights Act. The court disagreed, saying in part:

Here, plaintiff fails to allege facts plausibly supporting a minimal inference of discriminatory motivation. Although plaintiff contends that she was treated differently than other Lucille Roberts members on the basis of her religion, the factual allegations only suggest that she was treated differently because she insisted on wearing an article of clothing that, according to defendant, was inappropriate gym attire.... Nowhere does the complaint allege that defendant selectively enforced its dress code against Jewish women.... There is no indication ... that claims grounded solely in disparate impact—and lacking any allegation of discriminatory intent—are cognizable under Title II.

Consumerist reports on the decision.

Meanwhile, JTA reported yesterday on a religious discrimination in employment lawsuit filed in New York state court.  Plaintiff Hadas Goldfarb, an Orthodox Jewish woman who was hired by New York Presbyterian Hospital as a paramedic, was dismissed when when she insisted on wearing a skirt instead of pants as required by the hospital's dress code.  Unlike the public accommodation section of the 1964 Civil Rights Act, the employment discrimination provisions (Title VII) require employers to reasonably accommodate an employee's religious exercise. [Thanks to Steven H. Sholk for the lead.]

EEOC Sues Over Refusing To Accommodate Jewish Employee's Holiday Observance

The EEOC announced on Tuesday that it has filed a Title VII lawsuit against XPO Last Mile, Inc., a delivery company, for rescinding a job offer to Tzvi McCloud who refused to report for his first day of work on Rosh Hashanah.  A company vice president allegedly told McCloud that if he gave him a religious accommodation for his Jewish religious beliefs, he would have to extend accommodations to other employees as well.

7th Circuit En Banc: Title VII Bars Sexual Orientation Discrimination

In an important decision handed down yesterday, the U.S. 7th Circuit Court of Appeals sitting en banc held in an 8-3 decision that under title VII of the 1964 Civil Rights Act, discrimination on the basis of sexual orientation is a form of sex discrimination.  In Hively v. Ivy Tech Community College of Indiana, (7th Cir., April 4, 2017), Chief Judge Wood in her majority opinion stated in part:

The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that have endeavored to find and observe that line.

The lawsuit was filed by an adjunct professor who was rejected for full time positions and whose part-time contract was not renewed. She believes these actions were taken because she is a lesbian.

Judge Posner filed an interesting concurring opinion focusing on the issue of originalism in statutory interpretation.  He said in part:

It is well-nigh certain that homosexuality, male or female, did not figure in the minds of the legislators who enacted Title VII. I had graduated from law school two years before the law was enacted. Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of À la recherche du temps perdu.” Homosexuality was almost invisible in the 1960s. It became visible in the 1980s as a consequence of the AIDS epidemic; today it is regarded by a large swathe of the American population as normal. But what is certain is that the word “sex” in Title VII had no immediate reference to homosexuality; many years would elapse before it could be understood to include homosexuality.

A diehard “originalist” would argue that what was believed in 1964 defines the scope of the statute for as long as the statutory text remains unchanged, and therefore until changed by Congress’s amending or replacing the statute. But as I noted earlier, statutory and constitutional provisions frequently are interpreted on the basis of present need and understanding rather than original meaning.

Judge Flaum joined by Judge Ripple also filed a concurring opinion.

Judge Sykes, joined by Judges Bauer and Kanne dissented, saying in part:

The majority deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion. So does Judge Posner in his concurrence. Neither is faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges. Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.

Advocate reports on the decision.

Fired Hospice Chaplain Loses Title VII Claim In 9th Circuit

In Blair v. Shulkin, (9th Cir., March 28, 2017), the U.S. 9th Circuit Court of Appeals agreed with the district court that a Title VII religious discrimination claim against the Department of Veterans Affairs should be dismissed. Plaintiff, Carmen Blair, claimed that she was fired from her position as a chaplain because of her Christian religious beliefs, alleging that her dismissal stemmed from discriminatory and biased attitudes on the part of her hospice team towards her as a conservative Charismatic Christian.  The court accepted the VA's explanation that the firing was because Blair was unable to integrate into the hospice unit team.  It pointed out that "the very basis upon which Blair claims she was
discriminated against—her Christian faith—was a prerequisite for her initial employment."  Courthouse News Service reports on the decision.

11th Circuit: Title VII Does Not Bar Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, (11th Cir., March 10, 2017), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that Title VII of the 1964 Civil rights Act does not protect against employment discrimination on the basis of sexual orientation. Jude Martinez, in his majority opinion, held:

Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)4 (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.”

Judge Pryor concurring wrote in part:

I write separately to explain the error of the argument of the Equal Employment Opportunity Commission and the dissent that a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes.  Although a person who experiences the former will sometimes also experience the latter, the two concepts are legally distinct. And the insistence otherwise by the Commission and the dissent relies on false stereotypes of gay individuals.

Judge Rosenbaum, dissenting in part, wrote:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and it clearly violates Title VII under Price Waterhouse [v. Hopkins, 490 U.S. 228 (1989)].

Atlanta Journal Constitution reports on the decision.

Trump Administration Withdraws Obama Title IX Transgender Guidance

Today the Trump Administration withdrew the controversial Obama Administration's Guidance on rights of transgender students under Title IX. In a Joint Letter (full text) from the Department of Justice and Department of Education, the Trump Administration formally took no position on whether Title IX protects transgender students.  The Letter reads in part:

These [Obama Administration] guidance documents take the position that the prohibitions on discrimination “on the basis of sex” in Title IX ... and its implementing regulations ... require access to sex-segregated facilities based on gender identity. These guidance documents do not, however, contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.

This interpretation has given rise to significant litigation regarding school restrooms and locker rooms....

In addition, the Departments believe that, in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.

In these circumstances, the Department of Education and the Department of Justice have decided to withdraw and rescind the above-referenced guidance documents in order to further and more completely consider the legal issues involved. The Departments thus will not rely on the views expressed within them.

The Solicitor General's Office also sent a letter (full text) to the Supreme Court notifying it of the Guidance withdrawal.  Oral argument is scheduled March 28 in the Gloucester County School Board case involving the Obama Administration's interpretation of Title IX.  The Supreme Court specifically granted certiorari on two issues (see prior posting), only one of which would appear to be mooted by yesterday's action.  The two issues are:

... [S]hould deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?

... With or without deference to the agency, should the Department’s specific interpretation of Title IX and 34 C.F.R. § 106.33 be given effect?

The New York Times reports that Education Secretary Betsy DeVos had opposed withdrawal of the Guidance that protected transgender students, but that the President sided with Attorney General Sessions.  The new Joint Letter does contain a paragraph expressing concern for student rights:

Please note that this withdrawal of these guidance documents does not leave students without protections from discrimination, bullying, or harassment. All schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment. The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all students and to encourage civility in our classrooms. The Department of Education and the Department of Justice are committed to the application of Title IX and other federal laws to ensure such protection.

Both Attorney General Sessions and Secretary DeVos issued separate statements as well.  Sessions' statement (full text) reads in part:

The Department of Justice remains committed to the proper interpretation and enforcement of Title IX and to its protections for all students, including LGBTQ students, from discrimination, bullying, and harassment.

DeVos' statement (full text) reads in part:

I have dedicated my career to advocating for and fighting on behalf of students, and as Secretary of Education, I consider protecting all students, including LGBTQ students, not only a key priority for the Department, but for every school in America.

Today's Joint Letter only refers to the interpretation of Title IX.  It is unclear how this will affect the similar interpretation of Title VII of the 1964 Civil Rights Act.  The EEOC has interpreted the reference to sex discrimination in Title VII to protect transgender employees. Indeed, a December 15, 2014 Memorandum (full text) from Attorney General Holder to U.S. Attorneys takes the same position on Title VII.

Fired Doctor Settles Suit Against Georgia Health Department [Corrected]

In a press release yesterday, First Liberty announced that a settlement has been reached in Walsh v. Georgia Department of Public Health.  In the case, a doctor and public health expert who was dismissed from his position with the Georgia Department of Public Health within two weeks of his hiring claimed that he was terminated because of the content of sermons he had given as a Seventh Day Adventist lay minister. (See prior posting). The settlement agreement (full text) provides for the payment of $225,000 to plaintiff's lawyers.  I am informed by plaintiff's lawyers that the checks were deposited in an attorney trust account to be disbursed from there to the client, and that the majority of the settlement amount went to the client.  [An earlier version of this posting incorrectly concluded that the payment was entirely for attorneys' fees.] Atlanta Journal Constitution reports on developments.

4th Circuit: No Title VII Claim Where Employee Failed To Follow Leave Procedures

In Abeles v. Metropolitan Washington Airports Authority, (4th Cir., Jan. 26, 2017), the U.S. 4th Circuit Court of Appeals rejected a religious discrimination claim by an Orthodox Jewish Airports Authority employee who was suspended for five days for taking off work for the last two days of Passover.  The employee gave only informal notice of her intention to take off those days and did not comply with the formal leave request procedure.  The court, responding to plaintiff's argument that under Title VII she should have been granted religious accommodation, said in part:

[N]o conflict existed between Plaintiff observing religious holidays and following MWAA’s neutral rules requiring advance approval of leave following specified procedures. Nor could she establish such a conflict. The Leave Policy merely requires employees to request leave by form or email, and obtain advance approval.

The court also rejected plaintiff's disparate treatment argument.  Discussion of the decision from plaintiff's perspective is provided by a Huffington Post contributor.

Former NYPD Officer Sues Over Anti-Muslim Discrimination

A suit was filed last week in a New York federal district court by a former NYPD officer. Plaintiff, a Muslim, claims she suffered retaliation and a hostile work environment when she began to wear a hijab while on duty.  The complaint (full text) in Alamrani v. City of New York, (SD NY, filed 2/2/2017),  alleges in part:

From 2009 until 2012, Plaintiff Alamrani was ... constantly assigned to posts which do not allow her to earn overtime and was called discriminatory names on a daily basis like terrorist and Taliban. Also on a daily basis she would be told that she should not be a police officer, that she should not be allowed to wear the Hijab, that nobody wanted to work with her, that she was a disgrace to the NYPD and that nobody liked her along with other deriding comments.

In late 2012, fellow-officers tried to rip her hijab off her head. In subsequent years she was limited to working the night shift, and other retaliatory actions allegedly occurred. The suit claims violations of Title VII as well as of New York City and New York state law.  The Gothamist reports on the lawsuit.

Teacher Fired For Marrying Same-Sex Partner Sues Catholic High School

The North Carolina ACLU yesterday announced the filing of a federal lawsuit on behalf of a teacher who was fired by a Catholic high school in Charlotte after the teacher announced on Facebook that he planned to marry his long-time same-sex partner. Plaintiff Lonnie Billard had taught for over ten years at the school and in 2012 was named the Teacher of the Year. The lawsuit alleges that the firing violates Title VII of the 1964 Civil Rights Act. WFAE reports on the lawsuit.

Federal Employee Fired For Conducting Baptism Must Rely On Title VII, Not 1st Amendment

In Holly v. Jewell, (ND CA, Jan. 3, 2017), a California federal magistrate judge dismissed a 1st Amendment religious discrimination claim by a former maintenance worker at the San Francisco Maritime National Historic Park. Plaintiff Roger Holly, an African American Baptist Minister who was employed by the Park was fired because, while on break out of uniform, he performed a baptism on the seashore adjoining the Park.  The court held that Title VII provides the sole remedy for discrimination in federal employment, and "Plaintiff has not asserted a First Amendment violation that is distinct from his claim that he suffered employment discrimination and retaliation based on his religion."