EEOC Sues Over Refusal to Accommodate First Responders' Need to Wear Beards

The EEOC announced yesterday that it has filed a Title VII and ADA suit against Global Medical Response, Inc. and American Medical Response, Inc. which operate one of the largest medical transport companies in the country. The suit alleges that the companies have refused to accommodate employees in EMT and paramedic positions who wish to wear facial hair for religious reasons or because of medical conditions. The companies contend that facial hair prevents respirators from fitting properly, but the EEOC says that the companies should have accommodated the religious and medical needs of employees by allowing them to wear the type of respirators that would have allowed them to maintain beards.

Texas Federal District Court Invalidates HHS and EEOC Guidance On Application Of Bostock Decision

In State of Texas v. EEOC, (ND TX, Oct. 1, 2022), a Texas federal district court held that Guidance documents issued by the EEOC and by the Department of Health and Human Services are unlawful. It vacated and set aside the Guidance documents. At issue are the HHS and EEOC applications of the Supreme Court's Bostock decision. Bostock held that sex discrimination in Title VII includes discrimination because of sexual orientation or gender identity. The HHS Guidance interprets the Affordable Care Act, the Rehabilitation Act and the ADA to prohibit denial of gender-affirming care by healthcare providers. The Texas federal district court says that Bostock  only bars discrimination based on sexual orientation or gender identity status, and does not extend to discrimination based on conduct related to those statuses. The court concluded that the HHS Guidance is arbitrary and capricious because it misstates the law (in part by suggesting that gender dysphoria is a disability under the ADA) and does not detail what went into the Department's decision making. The court held that the EEOC violated procedural rules in issuing its Guidance. Texas Attorney General Ken Paxton issued a press release reacting to the decision. Texas Tribune reports on the decision.

Christian Rescue Mission Charged With Religious Discrimination Files Suit

Suit was filed yesterday in a Wyoming federal district court by a Christian rescue mission challenging interpretations by the EEOC and the Wyoming Department of Workforce Services of the employment discrimination provisions of state and federal law.  The complaint (full text) in Rescue Mission v. EEOC, (D WY, filed 9/20/2022), contends that the Rescue Mission's free exercise and free expression rights were violated when the EEOC and WDWS found probable cause that the Mission engaged in religious discrimination in refusing to hire non-Christians as associates in its Thrift Stores.  The agencies took the position that a religious exemption was available only as to "ministerial" positions. The Rescue Mission's complaint alleges in part:

The [Thrift store] position has spiritual qualifications that require candidates to “[m]aintain a personal relationship with Jesus Christ,” “live a Godly life in public and private, thereby providing a Christian role model for those we seek to reach,” and “[a]gree with the WRM Statement of Faith.”

ADF issued a press release announcing the filing of the lawsuit.

Court Enjoins DOE and EEOC From Enforcing LGBT Anti-Discrimination Interpretations Because Of Procedural Issues

 In State of Tennessee v. U.S. Department of Education, (ED TN, July 15, 2022), a Tennessee federal district court enjoined the Department of Education and the EEOC from enforcing against 20 states that are plaintiffs in the case documents interpreting Title IX and Title VII as including prohibitions on discrimination on the basis of sexual orientation or gender identity. According to the court:

Plaintiffs have demonstrated that they are likely to succeed on their claim that Defendants’ guidance documents are legislative rules and that the guidance is invalid because Defendants failed to comply with the required notice and comment procedures under the APA.

CNN reports on the decision.

EEOC Sues Company Over Requiring Employees To Attend Prayer Meetings

The EEOC announced yesterday that it has filed a religious discrimination lawsuit against North Carolina-based Aurora Pro Services. It explained:

[T]he company required all employees to attend daily employer-led Christian prayer meetings. The meetings were conducted by the company owner and included Bible readings, Christian devotionals, and solicitation of prayer requests from employees. Aurora’s owner took roll before some of the meetings and reprimanded employees who did not attend. When a construction manager asked to be excused from the prayer portion of the meetings in the fall of 2020, the defendant company refused to accommodate the employee’s religious beliefs (atheist), cut his pay, and fired him. A few months later, in January 2021, Aurora terminated a customer service representative who stopped attending the prayer meetings because the meetings conflicted with her religious beliefs (agnostic).

Employees' Religious Objections To Apron Logo May Support Title VII Claim

In EEOC v. Kroger Limited Partnership I, (ED AR, June 23, 2022), an Arkansas federal district court refused to dismiss a religious discrimination claim brought by the EEOC against Kroger for failing to accommodate two employees who refused to wear the company's apron which features a four-color heart symbol. Kroger developed the symbol as part of a new campaign emphasizing the company's four service-based commitments. The employees insisted that the symbol promotes the LGBT community. Their religious beliefs prevent them from promoting homosexuality which they believe is a sin. The court said in part:

Kroger acknowledges that the Court can't sit in judgment of the objective reasonableness of a sincerely held religious belief ...  [But] according to Kroger ... it is objectively unreasonable to believe that the Our Promise symbol supports and promotes the LGBTQ community. Thus, Kroger concludes, there is no conflict at all between Lawson and Rickerd's religious beliefs and Kroger's dress code. ...

Kroger slices things far too thin by isolating the "religious belief" question from the "conflict" question.... [T]hose questions are too bound up with each other for Kroger's theory to be correct. Subjecting the "conflict" question to an objective-reasonableness review would inevitably subject some aspect of the employee's religious beliefs, practices, or observances to the same standard. And we know that isn't allowed....

In any event, even if Kroger was right ..., there's evidence in the record that would allow (but not require) a rational juror to conclude... that Lawson and Rickerd reasonably believed that wearing the multi-colored heart would communicate support for and promotion of the LGBTQ community....

Regardless of what Kroger intended for its Our Promise symbol to mean, Lawson and Rickerd object to being seen as supporting or promoting homosexuality. So, the real question would be whether it was objectively reasonable for Lawson and Rickerd to believe that other people (i.e., customers) would think that the multi-colored heart was a pro-LGBTQ symbol. And a rational juror could go either way on that question.

Title VII 90-Day Right To Sue Runs From Receipt Of Email, Not From Opening It

In Paniconi v. Abington Hospital- Jefferson Health, (ED PA, May 24, 2022), plaintiff, a 62-year-old white woman and a born-again Christian had filed a race and religious discrimination claim against her employer with the EEOC.  The EEOC sent both plaintiff and her attorney a right-to-sue letter on Sept. 8, 2021, but sent it through an e-mail which merely told the recipients to check their EEOC portal for an important document.  The e-mail to the attorney did not list the client's name or indicate that the important document was a right-to-sue letter. Title VII requires suit to be filed within 90 days after receipt of the right-to-sue letter.  Plaintiff's attorney did not access the portal or download the letter until Sept. 13.  Suit was filed on December 8, which is 91 days after receipt of the e-mail.  The court dismissed the suit, rejecting the argument that the 90-day period should run from the date the attorney accesses the portal and downloads the letter. Instead it held that the 90-day period runs from the date the e-mail reaches the attorney's inbox. JD Supra reports on the decision.

EEOC Sues Restaurant For Failing To Accommodate Employee's Church Attendance

The EEOC announced this week that it has filed suit against Del Frisco’s of Georgia, an Atlanta restaurant, for refusing to accommodate an employee's religious beliefs. The EEOC alleges:

[T]he employee requested and was granted an accommodation of not working on Tuesday evenings and Sunday mornings so she could attend prayer and church services. Del Frisco’s scheduled the employee to work on Tuesday, Dec. 31, 2019, in conflict with her existing religious accommodation and her need to attend prayer services that evening. The employee reminded her supervisors of her religious conflict, but she was not taken off the schedule. When the employee did not appear for work on that day, Del Frisco’s fired her.

Court Enjoins Application To Christian Employers Of Protections For Gender Transition Services

In Christian Employers Alliance v. U.S. Equal Opportunity Commission, (D ND, May 16, 2022), a North Dakota federal district court, responding to a suit by an employers' organization challenging federal agency interpretations of anti-discrimination requirements, issued a preliminary injunction barring the EEOC from interpreting Title VII to require plaintiff's members to provide insurance coverage for gender transition services. It also enjoined HHS from using Section 1557 of the Affordable Care Act to impose on plaintiff's members who are health care providers an obligation to furnish or facilitate gender transition services or to restrict their speech on gender identity issues. The court said in part:

Defendants argue they will comply with RFRA but cannot predict ahead of time how RFRA will apply to the facts of a particular matter.... Religious freedom cannot be encumbered on a case-by-case basis.... The Alliance maintains if the government interest is to increase access to gender transition services, the government itself could assume the costs for those unable to afford them or obtain them under their employer’s religious objections in the health insurance policies. The Alliance reiterates the government could also provide subsidies, reimbursements, tax credits or deductions. Defendants must demonstrate a compelling interest to the Alliance’s substantial burden and have failed to do so. Determining on a case-by-case basis if a religious exemption should apply is certainly not the least restrictive means.

Bloomberg Law reports on the decision. (See prior related posting.)

Biden Nominates Kalpana Kotagal For EEOC Commissioner

President Biden yesterday sent to the Senate the nomination of  Kalpana Kotagal to be a Member of the 5-member Equal Employment Opportunity, replacing Janet Dhillon whose term is expiring July 1. Kotagal is a partner at Washington, D.C. law firm of Cohen Milstein and is a member of the firm’s Civil Rights & Employment practice group. The EEOC enforces employment discrimination laws, including laws barring religious discrimination in employment.

Supreme Court GVR's Title VII Reasonable Accommodation Appeal

Yesterday in Hedican v. Walmart Stores East, (Docket No. 21-648, gvr'd 3/21/2022), (Order List), the U.S. Supreme Court granted certiorari, summarily vacated the judgment below and remanded the case to the Seventh Circuit for further consideration in light of Cameron v. EMW Women’s Surgical Center. In the Walmart case, the 7th Circuit held that accommodating the scheduling need of a Seventh Day Adventist would impose an undue burden on Walmart. After that decision, Edward Hedican, on whose behalf the EEOC had sued, sought to intervene in order to file a petition for certiorari. The Seventh Circuit held that the motion to intervene was untimely. Hedican's petition for certiorari said that it presents identical questions to Cameron.

Health Care Company Will Pay $75,000 To Settle Christian Nurse's Religious Accommodation Claim

The EEOC announced yesterday that Wellpath, a provider of health services in correctional institutions, has agreed to settle a religious discrimination claim brought by the EEOC on behalf an Apostolic Pentecostal Christian nurse who was hired for a Texas jail.  According to the EEOC:

Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer.

Under the settlement agreement, Wellpath will pay the nurse $75,000 in back pay and damages, and will provide anti-discrimination training and notice of rights to employees.

Delivery Service Settles EEOC Suit Charging Failure To Accommodate Church Attendance

The EEOC announced yesterday that Tampa Bay Delivery Service, an Amazon delivery provider, has settled a religious discrimination suit brought by the EEOC on behalf of a driver who was fired for refusing Sunday shifts in order to attend church services. The company will pay $50,000 in damages, will provide training on religious discrimination to managers and dispatchers, and will designate a religious accommodation coordinator.

Florida Hotel Settles EEOC Suit On Behalf Of 7th Day Adventist For $99,000

EEOC announced this week that a Sunny Isles Beach, Florida resort hotel, Noble House Solé, has agreed to settle a religious discrimination claim by paying $99,000 to a terminated employee, and also to create an anti-discrimination policy and to train employees regarding religious accommodation.  The complaint was brought by a Seventh Day Adventist employee who worked a room attendant. She needed Saturdays off. According to the EEOC:

Solé Miami accommodated the employee’s Sabbath observance for over ten months after she began her employment without incident.  Unfortunately, when a new supervisor came onboard, Solé Miami scheduled the employee to work on a Saturday.  When the employee missed work, Solé Miami immediately terminated her, even though employees that missed work for non-religious reasons were given multiple warnings prior to termination.

Insurance Brokerage Firm Settles EEOC Religious Discrimination Suit

EEOC announced yesterday that Arthur J. Gallagher & Co., an insurance brokerage firm, has agreed to settle a religious discrimination lawsuit by paying $40,000 in damages to an underwriting associate it fired, explaining:

According to the EEOC’s lawsuit, filed last year, Gallagher knew of Yu Rex Noda’s Christian religious practices, including fasting in conjunction with Lent. As set out in the EEOC’s complaint, a “Termination Memo” Gallagher issued cited “fasting” and “meditating” among reasons for firing Noda.

The company will also provide anti-discrimination training to Midwest regional managers.

Greyhound Settles EEOC Religious Accommodation Lawsuit

The EEOC announced this week that Greyhound Lines has agreed to settle a religious discrimination lawsuit brought against it on behalf of a Muslim woman who, after being accepted into the bus line's driver training program, was told she could not wear an abaya. The abaya is a loose fitting outer garment worn because of religious beliefs regarding modesty. Greyhound will pay $45,000 in damages, and will train its human resource and hiring personnel on handling of religious accommodations.

Christian Employers Group Challenges HHS And EEOC Protection for Transgender Health Care

Suit was filed this week in a North Dakota federal district court by a Christian membership ministry that serves for-profit and non-profit employers challenging two federal rules on health care coverage for gender transition surgery. At issue are (1) an EEOC interpretation of Title VII that requires employers to cover gender transition services in their health plans; and (2) An HHS non-discrimination requirement that forces religiously-affiliated healthcare providers to perform gender transition surgeries, procedures, counseling, and treatments. The complaint (full text) Christian Employers Alliance v. U.S. EEOC, (D ND, filed 10/18/21), alleges in part:

31. CEA members believe and teach that each human being bears the image and likeness of God, and that the two, distinct biological sexes of male and female are complementary and together reflect the image and nature of God.

32. CEA members believe and teach that rejection of one’s biological sex is a rejection of the image of God within that person.

The suit alleges violations of RFRA, free exercise and free speech protections. ADF issued a press release announcing the filing of the lawsuit.

Texas Sues EEOC Over Interpretation of Transgender Rights

The state of Texas this week filed suit in federal district court challenging an EEOC Guidance document (full text) issued in June interpreting the application of the Supreme Court's Bostock decision to rights of transgender employees under Title VII.  The complaint (full text) in State of Texas v. EEOC, (ND TX, filed 9/20/2021), contends that the EEOC's interpretation of requirements for  usage of bathrooms, dress codes and pronoun usage misstates the law, violates the First Amendment and was adopted without following proper procedures. The Texas Attorney General's office issued a press release announcing the filing of the lawsuit.

EEOC Suit Protecting Religious Objector To Fingerprinting Is Settled

The EEOC announced last week that Minnesota- based AscensionPoint Recovery Services has settled an EEOC religious discrimination lawsuit brought against it by agreeing to pay $65,000 in damages and implementing changes to its policies. According to the EEOC, the company fired a Christian employee who objected to being fingerprinted:

The fingerprinting requirement was prompted by a background check procedure requested by of one of the company’s clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him. APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting were available.

20 State AG's Sue Feds Over LGBTQ Anti-Discrimination Interpretations

A 20-state coalition led by Tennessee Attorney General Herbert Slattery filed suit in a Tennessee federal district court challenging interpretations of anti-discrimination laws by the Department of Education and the EEOC. In response to an Executive Order issued by President Biden, these two agencies issued interpretations protecting against discrimination on the basis of sexual orientation or gender identity. The complaint (full text) in State of  Tennessee v. U.S. Department of Education, (ED TN, filed 8/30/2021), contends in part:

[T]he Department of Education ... and Equal Employment Opportunity Commission ..., each flouting procedural requirements in their rush to overreach, issued “interpretations” of federal antidiscrimination law far beyond what the statutory text, regulatory requirements, judicial precedent, and the Constitution permit.

The relief requested by plaintiffs particularly focuses on concerns over transgender rights under Title VII and Title IX. 

Tennessee's Attorney General issued a press release announcing the filing of the lawsuit.