Ban on Firing Employee Because of Reproductive Health Decision May Violate Religious Employer's Expressive Association Rights

In CompassCare v. Hochul, (2nd Cir., Jan. 2, 2025), anti-abortion pregnancy centers and a Baptist Church challenge a New York statute which prohibits employers from discriminating against an employee based on any reproductive health care decision made by the employee or a dependent. Reviewing plaintiffs' expressive association claim, the court said in part:

[A]n entity like CompassCare, or another mission-based organization that advocates for a particular cause or set of beliefs, could plausibly allege that the compelled retention of a specific employee would impair its ability to express its message....

To sustain their challenge to the Act, each Plaintiff must adequately allege (and eventually prove) that the Act threatens “the very mission of its organization.”

However, the court rejected the claim that this provision violates free speech and free exercise rights.

The court also concluded that the law's notice provision which requires employee handbooks to include information on employees' rights under the New York labor law is subject only to rational basis review. The court said in part:

Requiring Plaintiffs to include among these wide-ranging provisions a notice informing employees of their available rights and remedies under a valid statute is not akin to requiring a crisis pregnancy center to distribute a notice about state-sponsored reproductive health services “at the same time [the centers] try to dissuade women from choosing that option.”... 

We conclude that the required notification does not interfere with Plaintiffs’ greater message and mission.

ADF issued a press release announcing the decision.

Ministerial Exception Is Affirmative Defense, Not Jurisdictional Bar

In Matter of Ibhawa v New York State Division of Human Rights, (NY Ct App, Nov. 26, 2024), New York's highest appellate court reversed a lower appellate court's dismissal of a priest's hostile work environment claim because the Appellate Division had treated the ministerial exception doctrine as a jurisdictional bar rather than as an affirmative defense.  The state Division of Human Rights had dismissed both the claim of racial and national origin discrimination and the hostile work environment claim by a Black Nigerian Catholic priest who was employed as a parish administrator. On appeal ultimately to the New York Court of Appeals, the court remanded the hostile work environment claim to the Division of Human Rights, saying in part:

... [O]nce the Diocese raised the ministerial exception as one of several affirmative defenses, the question confronting DHR was not whether the exception limited its power to consider Ibhawa's claim, but whether any of the Diocese's affirmative defenses—including the two statutory defenses raised by the Diocese—established that the case could not proceed beyond its current stage....

Because DHR erred in treating the ministerial exception as a jurisdictional bar rather than an affirmative defense, its determination was affected by an error of law. In reaching that conclusion, we express no view on whether any of the Diocese's defenses are meritorious.

[Thanks to John Melcon for the lead.]

Homeless Shelter Can Limit Hiring to Coreligionists

In Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, Nov. 1, 2024), a Washington federal district court granted a preliminary injunction to a religious organization that operates a homeless shelter and thrift stores. The injunction bars the state's attorney general from enforcing the Washington Law Against Discrimination (WLAD) against plaintiff for limiting all its hiring to coreligionists who adhere to the organization's religious tenets and behavior requirements. In 2021 the Washington Supreme Court interpreted the exemption in the WLAD for non-profit religious organizations to apply only to hiring for ministerial positions. The federal district court here held that the WLAD is subject to strict scrutiny since it is not a neutral, generally applicable law. It treats religious organizations differently than secular employers who are exempt if they have fewer than eight employees. According to the court, a less restrictive way of advancing the state's interest is to exempt all employees of nonprofit religious organizations as Washington had done before the state Supreme Court decision narrowing the interpretation of the WLAD exemption. An ADF press release has additional background.

7th Day Adventists Sue Maryland Over Narrow Interpretation of Fair Employment Practices Act Exemption

Last week, the Seventh Day Adventist Church filed suit against officials and members of the Maryland Civil Rights Commission challenging as unconstitutional the Maryland Supreme Court's narrow interpretation of the religious institution exemption from the anti-discrimination provisions of the Maryland Fair Employment Practices Act (FEPA). Last year in Doe v. Catholic Relief Services, the Maryland Supreme Court held that the religious institution exemption only applies to "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." (See prior posting.) The complaint (full text) in General Conference of the Seventh Day Adventists v. Horton, (D MD, filed Oct. 2, 2024), alleges that the Catholic Relief Services interpretation of FEPA exemption violates plaintiffs' rights under the Free Exercise and Establishment Clauses as well as other 1st and 14th Amendment rights. The complaint says in part:

Plaintiffs believe that all their employees are representatives of the Church and are responsible for sharing the Church’s faith with the world. It is therefore a critical component of Plaintiffs’ religious exercise that all their employees embrace the Church’s faith, support its religious mission, and share the faith with others. This is why Plaintiffs’ employment policies have long required all those they employ to be members of the Church in regular standing and to conduct themselves in accordance with the Church’s religious beliefs....

What is more, applying Catholic Relief Services’ gloss on MFEPA would require the government to engage in a “fact-intensive inquiry” to “determine[] what constitutes a core mission” for each Plaintiff, and then assess which roles “directly” further those mission(s)...."  Applying this amorphous standard would require courts to delve into entangling questions of religious doctrine.

Becket Fund issued a press release announcing the filing of the lawsuit.

6th Circuit Rules on Christian Plaintiffs' Standing to Challenge Michigan's Civil Rights Acts

In Christian Healthcare Centers, Inc. v. Nessel, (6th Cir., Sept. 20, 2024), a Christian membership-based medical service ministry and two Catholic K-12 schools challenged prohibitions on sexual orientation and gender-identity discrimination under Michigan's public accommodation law (EAA) and its Elliot-Larsen Civil Rights Act. The U.S. 6th Circuit Court of Appeals found that plaintiffs had standing to seek an injunction only as to some of their challenges. The court summarized its holding:

In these three related cases, Plaintiffs allege that Michigan’s laws chill their speech and conduct in violation of the First and Fourteenth Amendments.  The district court dismissed each case for want of standing, reasoning that no Plaintiff had shown that Michigan’s laws arguably proscribed its speech or conduct and that, in the alternative, there was no credible threat that Michigan would enforce its laws against any Plaintiff.

We agree only in part....

We express no view regarding the merits of any claim, the appropriate resolution on remand of the motions for preliminary relief, or what conclusions might be warranted concerning any issue after discovery.  We hold only that (a) no Plaintiff has established standing to challenge the EAA, (b) Christian Healthcare has plausibly established standing to challenge the ELCRA’s public-accommodation provision, employment provision, and the publication clauses of each provision, (c) Sacred Heart has plausibly established standing to challenge the same provisions, the ELCRA’s education provision, and the publication clause of that provision, and (d) St. Joseph has failed to plausibly establish standing.

Judge Murphy filed a concurring opinion.

18 States Sue EEOC Over Guidance on Transgender Sexual Harassment

Eighteen states filed suit this week in a Tennessee federal district court challenging an EEOC Enforcement Guidance on Harassment in the Workplace issued on April 29.  The lengthy Guidance includes the following:

[S]ex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed. Harassing conduct based on sexual orientation or gender identity includes epithets regarding sexual orientation or gender identity; physical assault due to sexual orientation or gender identity; outing (disclosure of an individual’s sexual orientation or gender identity without permission); harassing conduct because an individual does not present in a manner that would stereotypically be associated with that person’s sex; repeated and intentional use of a name or pronoun inconsistent with the individual’s known gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.

The complaint (full text) in State of Tennessee v. EEOC, (ED TN, filed 5/13/2024) among other things alleges that the Guidance violates the First Amendment, saying in part:

By purporting to require employers and their employees to convey the Administration’s preferred message on controversial gender-identity preferences— for example, requiring the use of pronouns that align with an employee’s self-professed gender identity and prohibiting the use of pronouns consistent with that employee’s biological sex—the Enforcement Document unconstitutionally compels and restrains speech, even if contrary to the regulated parties’ viewpoints....

Requiring that employers and their employees adhere to EEOC’s chosen gender ideology orthodoxy likewise treads on religious freedoms.  Because Title VII provides exemptions for small employers, it is not “generally applicable,” and the Enforcement Document triggers strict scrutiny under free-exercise caselaw.... EEOC’s gender-ideology-accommodation mandate impermissibly violates employers’ and employees’ free-exercise rights.... Thus, adopting the policies required by the Enforcement Document would cause Plaintiff States to violate their employee’s First Amendment rights.

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

Certiorari Denied in Case of Jurors Disqualified Because of Religious Beliefs

Today the Supreme Court denied review in Missouri Department of Corrections v. Finney, (certiorari denied, 2/20/2024). In the case a Missouri state appellate court (full text of state court opinion) upheld a trial court's striking of three potential jurors for cause. The suit involved claims against the Department of Corrections by a lesbian employee alleging sex discrimination and hostile work environment. The potential jurors were disqualified because of their strongly-held religious views that homosexuality is a sin. Homosexuality was an important issue in the case. Justice Alito filed a Statement respecting the denial of certiorari indicating that were it not for a complicating state law issue in the case, he would have voted to grant review, saying in part:

Before us, the Department of Corrections argues that these for-cause dismissals were unconstitutional, and I agree that the Court of Appeals’ reasoning raises a very serious and important question that we should address in an appropriate case. The judiciary, no less than the other branches of State and Federal Government, must respect people’s fundamental rights, and among these are the right to the free exercise of religion and the right to the equal protection of the laws. When a court, a quintessential state actor, finds that a person is ineligible to serve on a jury because of his or her religious beliefs, that decision implicates fundamental rights.

Religious Organization Lacks Standing to Challenge Interpretation of State Anti-Discrimination law

In Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, Sept. 1, 2023), a Washington federal district court dismissed for lack of standing a suit challenging the constitutionality of the Washington Supreme Court's interpretation of the state's anti-discrimination law. The state Supreme Court in a prior case interpreted the statute's exemption for non-profit religious organizations to be limited to situations covered by the ministerial exemption doctrine.  In this case, plaintiff that operates a homeless shelter and thrift store and also provides social services sought a declaration that religious organizations have a constitutional right to hire, even in non-ministerial positions, only those who agree with its religious beliefs and who will comply with its religious tenets and behavior requirements. In dismissing the lawsuit, the court found that there was no credible threat of enforcement against plaintiff, and that this suit was a disguised attempt to appeal a Washington Supreme Court decision in violation of the Rooker-Feldman Doctrine.

5th Circuit En Banc Expands Its Interpretation of Title VII

In Hamilton v. Dallas County, (5th Cir., Aug. 18, 2023), the U.S. 5th Circuit Court of appeals in an en banc decision overturned the Circuit's previous precedent that held employment discrimination violates Title VII only if the discrimination involved an ultimate employment decision such as hiring, granting leave, discharging, promoting or compensating. In this case, the Dallas County Sheriff's Department gave its detention service officers two days off each week.  However, only men could choose to take two weekend days; women officers could only have one weekend day and one weekday, or two weekdays. The majority said in part:

Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions. To be sure, the statute prohibits discrimination in ultimate employment decisions—“hir[ing],” “refus[ing] to hire,” “discharg[ing],” and “compensation”—but it also makes it unlawful for an employer “otherwise to discriminate against” an employee “with respect to [her] terms, conditions, or privileges of employment.”

Our ultimate-employment-decision test ignores this key language.

While the decision relates to a sex discrimination claim, the holding applies equally to religious discrimination.

Judge Ho filed a concurring opinion.

Judge Jones, joined by Judges Smith and Oldham concurred only in the judgment, saying in part:

The majority's incomplete ruling ... leaves the bench, bar, and employers and employees with no clue as to what this court will finally declare to be the minimum standard for Title VII liability....

... [A]s the majority recognizes, the Supreme Court emphasizes that Title VII does not effectuate a workplace “general civility code.”...Yet as written, the majority opinion has no baseline for “discrimination” based on terms or conditions of employment.

MD Supreme Court: State Law Sex Discrimination Ban Does Not Include Sexual Orientation Discrimination

In Doe v. Catholic Relief Services, (MD Sup. Ct., Aug. 14, 2023), the Maryland Supreme Court, responding to certified questions from a federal district court, refused in interpreting state law to follow the analogous holding of the U.S. Supreme Court in its Title VII Bostick decision.  The Maryland court held that, in light of the separate prohibition on sexual orientation discrimination in state law, the ban on sex discrimination in the Maryland Fair Employment Practices Act does not also cover discrimination on the basis of sexual orientation. It went on to hold that in light of the specific ban on pay disparities based on sex or gender identity, the Maryland Equal Pay for Equal Work Act does not bar pay disparities based on sexual orientation. Finally the court held that the exemption in the Maryland Fair Employment Practices Act for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion, sexual orientation, or gender identity to perform work connected with the activities of the religious entity" covers "claims brought by employees who perform duties that directly further the core mission (or missions) of the religious entity." It is not co-extensive with the ministerial exception doctrine.

Justice Hotten, joined by Justice Eaves, filed a dissenting opinion contending that the ban on sex discrimination in both statutes includes sexual orientation discrimination. They would also read the religious institution exemption more narrowly than the majority, contending that it only applies when a nexus exists between the employer’s religious activities and the work that an employee performs.

The underlying case that led to the certified questions involved a complaint by a Program Data Analyst employed by Catholic Relief Services who was denied spousal health benefits for his same-sex spouse.

[Thanks to Arthur Spitzer for the lead.]

NJ Anti-Discrimination Law Creates Defense for Catholic School That Requires Teachers to Follow Catholic Teachings

 In Cristello v. St. Theresa School, (NJ Sup. Ct., Aug. 14, 2023), the New Jersey Supreme Court dismissed a suit against a Catholic school which had fired an art teacher/ toddler room caregiver who was unmarried and become pregnant.  The teacher's employment agreement required her to abide by the teachings of the Catholic Church and prohibited employees from engaging in premarital sex. The teacher sued under the New Jersey Law Against Discrimination (LAD) alleging pregnancy and marital status discrimination.  The court's majority opinion held that the LAD provision creating an exception for religious organizations following the tenets of its religion in establishing employment criteria gives the school an affirmative defense. The majority said in part:

Determining whether a religious employer’s employment action was based exclusively on the tenets of its religion requires application of only neutral principles of law and does not impermissibly entangle the courts in ecclesiastical matters.

Justice Pierre-Louis filed a concurring opinion taking the position that the religious tenet provision does not create an affirmative defense, but instead shifts to plaintiff the requirement to show that the purported reason for the firing was a pretext for prohibited discrimination. However here plaintiff did not show that this was a pretext.

Washington Examiner reports on the decision.

Biden Announces Intent to Nominate Charlotte Burrows For Third Term on EEOC

Yesterday, President Biden announced his intent to nominate Charlotte A. Burrows for a third term as a Member of the Equal Employment Opportunity Commission. She has served as Chair of the Commission since 2021. Before her appointment to the EEOC, Burrows served as Associate Deputy Attorney General at the U.S. Department of Justice.  Burrows' nomination must be confirmed by the Senate. The EEOC enforces federal employment anti-discrimination laws, including the ban on religious discrimination.

New Michigan Law Bars Employment Discrimination Because of Abortion

Yesterday, Michigan Governor Gretchen Whitmer signed SB147 (full text) which amends the Elliott-Larsen Civil Rights Act to bar discrimination because the individual has had an abortion. Bridge Michigan reports on the new law.

Supreme Court Hears Oral Arguments Today In Title VII Religious Accommodation Case

The U.S. Supreme Court will hear oral arguments today in Groff v. DeJoy, an important religious liberty case testing the extent to which Title VII requires accommodation of employees' religious practices. In the case, the U.S. 3rd Circuit Court of Appeals, in a 2-1 decision, held that accommodating a Sunday sabbath observer by allowing him not to report for work on Sunday would cause an "undue hardship" to the U.S. Postal Service.  Thus, failure to grant that accommodation did not violate Title VII. (See prior posting.) In the case, petitioners are asking the Supreme Court to revisit and reject the "more than de minimis" test for "undue hardship" announced in TWA v. Hardison. SCOTUSblog has a Case Preview with more details on the parties' arguments. The SCOTUSblog Case Page has links to the filings by the parties as well as to the more than 50 amicus briefs that have been filed. The arguments will be streamed live from the Supreme Court today at 10:00 AM here. The transcript and audio of the full oral arguments will be available later today here on the Supreme Court's website.

Christian Mission Challenges Narrowing of Washington State's Religious Exemption From Employment Non-Discrimination Law

Suit was filed yesterday in a Washington federal district court by a Christian social service agency contending that the Washington Supreme Court's recent interpretation of the state's employment discrimination law violates the First Amendment. The complaint (full text) in Union Gospel Mission of Yakima, Wash. v. Ferguson, (ED WA, filed 3/3/3023) alleges in part:

The Mission’s employees must adhere to certain Christian belief and behavior requirements—including abstaining from any sexual conduct outside of biblical marriage between one man and one woman—in order to properly live out and represent a Christian lifestyle and to not undermine the Mission’s religious message....

The WLAD [Washington Law Against Discrimination] used to protect the Mission by exempting religious nonprofit organizations from its provisions, but the Washington Supreme Court recently gutted the religious employer exemption, reducing it to the “ministerial exception.” See Woods v. Seattle’s Union Gospel Mission, 197 Wash. 2d 231 (2021), cert. denied, 142 S. Ct. 1094 (2022).... 

Post-Woods, Defendant Ferguson has made clear the State’s position that the WLAD now prohibits religious organizations from considering sexual orientation in hiring their non-ministerial employees....

As a result of the judicially re-written WLAD, and Defendants’ enforcement of the WLAD, the Mission now faces significant penalties for using its religiously-based hiring criteria for “non-ministerial” employees.

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

Department of Labor Rescinds Trump Administration Rule Broadening Religious Exemptions from Non-Discrimination Rules

The Department of Labor published in today's Federal Register a release (full text) rescinding a Trump Administration rule that defined expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. According to DOL:

 [T]he 2020 rule increased confusion and uncertainty about the religious exemption, largely because it departed from and questioned longstanding Title VII precedents..... 

Commenters who supported rescission overwhelmingly agreed that the 2020 preamble raised a serious risk that the rule would be implemented to permit contractors to discriminate against individuals based on protected classes other than a preference for persons of a particular religion.....

OFCCP emphasizes that, absent strong evidence of insincerity, OFCCP would accept a religious organization’s own assertions regarding doctrinal questions. However, OFCCP believes it is important to clarify that it is not appropriate to construe the Executive Order 11246 religious exemption to permit a qualifying religious organization to discriminate against employees on the basis of any protected characteristics other than religion.

Bloomberg Law reports on the rule change, (See prior related posting.)

Seattle Becomes First U.S. City To Outlaw Caste Discrimination

Seattle, Washington this week became the first U.S. city to add "caste" discrimination to its anti-discrimination laws. The Ordinance (full text), enacted on Feb. 21, in Section 14.04.030 defines caste as:

a system of rigid social stratification characterized by hereditary status, endogamy, and social barriers sanctioned by custom, law, or religion.

The Ordinance begins with some two-dozen "Whereas" clauses. They assert in part that:

... caste discrimination is based on birth and descent, and occurs in the form of social segregation, physical and psychological abuse, and violence; and

... caste discrimination manifests in employment, education, and housing....

 Time has a lengthy background article on the new legislation.

Actor's Disparate-Impact Religious Discrimination Claim Is Dismissed

 In Dunbar v. Disney, (CD CA, Nov. 3, 2022), a California federal district court dismissed an amended complaint filed by "9-1-1" actor Rockmond Dunbar in his Title VII disparate-impact religious discrimination claim against Walt Disney Company. Dunbar was denied a religious exemption from Disney's Covid vaccine mandate and was fired when he refused to be vaccinated. He claimed that according to beliefs of his Universal Wisdom Church it is a sacrilege to ingest medication, chemicals, or other foreign matters that defy natural law. His disparate impact claim failed originally because he was unable to identify other Universal Wisdom Church members who were similarly impacted. He then amended the complaint to allege that three other employees of other religious denominations were impacted. The court held, however, that this was insufficient to identify a "protected group" that was impacted because the group he points to is identified solely by the existence of the alleged discriminatory business practices. Hollywood Reporter reports on the decision.

European Court OK's Company Rule Neutrally Banning Wearing of All Signs of Religious Belief

 In L.F. v. S.C.R.L., EU EDJ, Oct. 13, 2022), the Court of Justice of the European Communities, in a request from Belgium for a preliminary ruling, held that a private company may prohibit employees from wearing all visible signs of political, philosophical or religious belief in the workplace.  This would not constitute direct discrimination on the ground of religion or belief in violation of Council Directive 2000/78 so long as the company's policy covers any manifestation of religious, philosophical or spiritual beliefs without distinction and treats all employees alike by requiring them in a general and undifferentiated way to dress neutrally. Such a rule might constitute indirect discrimination if it had a disparate impact on persons of one religion, but would not if it were objectively justified by a legitimate aim and the means of achieving that aim were appropriate and necessary. The question arose in the context of a company's refusal to employ a Muslim woman as an intern because she insisted on wearing a hijab. The Court issued a press release announcing the decision. Law & Religion UK also has coverage.

Physician Assistant Sues Hospital That Fired Her Over Treatment Of Transgender Patients

 A suit was filed on Tuesday in a Michigan federal district court by a woman who had worked as a physician assistant for 17 years, but was then fired for refusing, on religious grounds, to refer patients for gender transitioning drugs and procedures and to use pronouns that correspond to a patient's gender identity rather than their biological sex. In a claim denied by the fired employee, it was also claimed she altered template pronouns on medical records.  The complaint (full text) in Kloosterman v. Metropolitan Hospital, (WD MI, filed 10/11/2022), alleges in part:

9. By exhibiting open hostility toward Ms. Kloosterman’s religious beliefs, University of Michigan Health-West officials violated the Free Exercise Clause.... 

10. By accommodating secular preferences while refusing to grant a religious accommodation to Ms. Kloosterman, University of Michigan Health-West’s actions trigger and fail strict scrutiny under the Free Exercise Clause.... 

11. By seeking to compel Ms. Kloosterman to speak biology-obscuring pronouns that would violate her conscience and her medical judgment, as doing so could cause patients to miss potentially life-saving screenings, University of Michigan Health-West also violated the Free Speech Clause.... 

12. When it engaged in the aforementioned actions and fired Ms. Kloosterman, University of Michigan Health-West also violated the Fourteenth Amendment’s Equal Protection Clause, as well as Article I, §§ 2, 4, and 5 of the Michigan Constitution and the Elliott-Larsen Civil Rights Act of 1976....

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