Suit Says Trader Joe's Failed To Accommodate Religious Objection To COVID Vaccination

Suit was filed earlier this month under Title VII and California state law by a 26-year Christian employee of Trader Joe's who was fired after the company refused to adequately accommodate his religious objections to being vaccinated against COVID. Plaintiff Gregg Crawford was initially granted a religious exemption from the company's mandatory vaccination policy. However an important management meeting was limited to vaccinated employees, and the company refused to arrange an accommodation that would allow Crawford to attend in person or remotely. He was told his non-attendance would negatively affect his performance review. Shortly after Crawford complained about this and consulted an attorney, he was fired. The complaint (full text) in Crawford v. Trader Joe's Company, (CD CA, filed 9/7/2021), alleges violations of Title VII of the 1964 Civil Rights Act and of state anti-discrimination laws. KTLA News reports on 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.

Suit Challenges Absence Of Religious Exemptions In New York's Vaccine Mandate For Health Care Workers

Suit was filed Friday in a New York federal district court by New York health care workers challenging the absence of religious exemptions in New York state's mandate that all health care workers be vaccinated against COVID-19. The complaint (full text) in John Doe I v. Hochul, (ED NY, filed 9/10/2021) and the accompanying motion and memorandum of law (full text) seeking a temporary restraining order and preliminary injunction allege free exercise, equal protection and Title VII violations, among others. Plaintiffs allege in part:

Plaintiffs’ sincerely held religious beliefs, rooted in the above Scriptures, preclude them from accepting any one of the three currently available COVID-19 vaccines derived from, produced or manufactured by, tested on, developed with, or otherwise connected to aborted fetal cell lines.

The suit, filed by Liberty Counsel (press release) is similar to one filed by the same organization last month against the state of Maine. (See prior posting.) Yesterday's New York Times carried a lengthy article on the growing reliance on religious objections to COVID-19 vaccinations.

UPDATE: A similar suit was filed on Monday in the Northern District of New York on behalf of health care personnel, brought by the Thomas More Society.  Dr. A. v. Hochul, (ND NY, filed 9/13/2021) (full text of complaint).

Catholic High School Liable Under Title VII For Firing Gay Teacher

In Billard v. Charlotte Catholic High School, (WD NC, Sept. 3, 2021), a North Carolina federal district court held that a Catholic high school is liable under Title VII of the 1964 Civil Rights Act for firing a substitute drama teacher after he entered a gay marriage and stated on Facebook his disagreement with Catholic teaching on marriage. The court said in part:

Under Bostock, this Court finds that Plaintiff has raised a valid Title VII sex discrimination claim.... Defendants cannot escape Title VII liability by recharacterizing Plaintiff’s announcement of his engagement as “advocacy.” If Plaintiff were a woman who posted on Facebook that she was getting married to her husband, Defendants would not have interpreted her announcement as “advocacy” for or against the Catholic Church. Plaintiff’s engagement was only considered advocacy because of his sex.

The court went on to reject several defenses that were raised: the religious organization exemption in Title VII; the ministerial exception doctrine; the Religious Freedom Restoration Act; and 1st Amendment freedom of association.

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. 

Teacher Who Refused To Address Transgender Students By Preferred Names Loses Title VII Suit

In Kluge v. Brownsburg Community School Corporation, (SD IN, July 12, 2021), an Indiana federal district court dismissed a suit by a former teacher who resigned rather than comply with a school policy requiring him to address transgender students by their preferred names and pronouns. Plaintiff contended that it violated his Christian religious beliefs to comply with this policy. He sued under Title VII, claiming failure to accommodate his religious beliefs and retaliation. The court said in part:

[A]  name carries with it enough importance to overcome a public school corporation's duty to accommodate a teacher's sincerely held religious beliefs against a policy that requires staff to use transgender students' preferred names when supported by a parent and health care provider. Because BCSC ... could not accommodate Mr. Kluge's religious beliefs without sustaining undue hardship, and because Mr. Kluge has failed to make a meaningful argument or adduce evidence in support of a claim for retaliation, BCSC's Cross-Motion for Summary Judgment is GRANTED....

Indiana Lawyer reports on the decision.

EEOC Complaint Charges Stanford University With Anti-Jewish Hostile Work Environment

 As reported by The Forward, a complaint was filed last week with the EEOC (full text and summary of June 15 complaint) on behalf of a psychiatrist and a clinical social worker at Stanford University  Counseling & Psychological Services division charging that a hostile work environment has been created for Jewish employees.  The complaint alleges in part:

... Stanford University ... has permitted the DEI [Diversity, Equity and Inclusion] program to be perverted so that it accomplishes precisely the opposite of its intended aims....

... [T]he CAPS DEI program has maligned and marginalized Jews on the basis of religion, race and ethnic identity by castigating Jews as white, powerful and privileged members of society who contribute to systemic racism and denying and attempting to erase Jewish ancestral identity. In addition, the DEI program has denigrated the concept of Jewish victimhood and deliberately excluded anti-Semitism from the program’s agenda.... 

The CAPS DEI program... relies upon racial and ethnic stereotyping and scapegoating by describing all Jews as white or white-passing and therefore complicit in anti-Black racism. Jewish staff have been pressured to attend the DEI program’s racially segregated “whiteness accountability” affinity group, which was created for “staff who hold privilege via white identity” and “who are white identified, may be newly grappling with or realizing their white identity, or identify as or are perceived as white presenting or passing (aka seen as white by others even though you hold other identities).”

EEOC Sues Over Employer's Failure To Accommodate Religious Objection To Finger Printing

 The EEOC announced last week that it has filed suit in a Minnesota federal district court against AscensionPoint Recovery Services alleging religious discrimination:

APRS had requested that its employees be finger-printed as a result of a background check requirement of one of its 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 are available.

Meat Packing Company Settles EEOC Suit Charging Discrimination Against Somali Muslim Employees

The EEOC announced yesterday that the meat processing company JBS Swift & Co. has settled an EEOC lawsuit against it that charged discrimination against Muslim employees who were immigrants from Somalia and were black. The EEOC had charged that the prayer obligations of Muslim employees were not accommodated, and that these employees were harassed when they tried to pray during regular breaks and at other times. It also charged that JBS shut off water fountains during Ramadan 2008, which stopped Muslim employees from getting water after fasting and from washing before prayers. JBS will pay up to $5.5 million to the 300 employees who are eligible to share in the judgment. According to the EEOC:

JBS will make all former employees covered under the decree eligible for rehire. It will review, update, and post its anti-discrimination policies; maintain a 24-hour hotline for reporting discrimination; investigate employee complaints; support a diversity committee; and provide annual trainings to all employees on the laws prohibiting employment discrimination. JBS also must provide clean, quiet, and appropriate locations other than bathrooms for employees’ religious observances, including daily prayers, and must also allow employees to use locker rooms or other locations that do not pose a safety risk for observation of their religious practices.

Seventh Day Adventist Loses Failure To Accommodate Claim

In Staple v. School Board of Broward County, Florida, (SD FL, April 30, 2021), a Florida federal district court dismissed a Seventh Day Adventist's Title VII religious discrimination claim. Plaintiff was a shift supervisor for the county's school bus drivers.  He wanted to alter his hours in the winter months so he would not need to work after sundown on Fridays.  His supervisor instead insisted that he use his hours accrued for vacation and sick leave. The court held that this did not amount to discharge or discipline, which is a prerequisite to a failure to accommodate claim. Mere adverse employment action short of that, while it supports a disparate treatment claim, does not, according to the court, support a failure to accommodate claim. The court also dismissed his claim under the Florida Religious Freedom Restoration Act, finding that he did not allege a substantial burden on his religious exercise.

11th Circuit: Rastafarian Paramedic Was Offered Reasonable Accommodation

In Bailey v. Metro Ambulance Services, Inc., (11th Cir., April 6, 2021), the U.S. 11th Circuit Court of Appeals held that an ambulance company had offered a Rastafarian paramedic a reasonable accommodation of his religious beliefs as required by Title VII. The court said in part:

AMR offered Bailey a reasonable accommodation. It provided Bailey with the opportunity to maintain his beard and to work on the non-emergency-transport side of its operations, for which DeKalb County’s facial-hair policy did not apply. Had Bailey accepted the offer, his salary, hours, and job description would have remained the same as if he had worked either exclusively on the emergency side or on both the emergency and non-emergency sides of AMR’s operations. As a result, his terms and conditions of employment would not have been affected by the accommodation AMR offered.

Judge Rosenbaum filed a concurring opinion. [Thanks to Joshua Sarnoff via Religionlaw for the lead.]

Supreme Court Denies Review In Cases Seeking To Overturn Hardison's Interpretation Of Title VII

The U.S. Supreme Court today denied review in two Title VII religious discrimination cases. (Order List). In both, petitioners were asking the Supreme Court to overturn its 1977 decision in Trans World Airlines v. Hardison which, interpreting the statutory term "undue hardship", allows an employer to refuse to accommodate an employee's religious requirements if doing so would impose  anything more than a de minimis cost. In Dalberiste v. GLE Associates, Inc. (Docket No. 19-1461, certiorari denied 4/5/2021), a Seventh Day Adventist sought a religious accommodation for his Sabbath observance. (SCOTUSblog case page.)  In Small v. Memphis Gas, Light & Water, (Docket No. 19-1388, certiorari denied      4/5/2021), a Jehovah's Witness employee sought scheduling accommodations that would allow him to attend church services. (SCOTUSblog case page). 

Justice Gorsuch, joined by Justice Alito, dissented from the denial of certiorari in the Small case, saying that the statutory interpretation involved there is out of step with subsequently adopted federal civil rights laws in other areas. Their opinion contends in part:

... Title VII’s right to religious exercise has become the odd man out. Alone among comparable statutorily protected civil rights, an employer may dispense with it nearly at whim. As this case illustrates, even subpar employees may wind up receiving more favorable treatment than highly performing employees who seek only to attend church.

Reuters reports on the Court's actions.

9th Circuit: Football Coach's Past-Game Prayers Violate Establishment Clause

In Kennedy v. Bremerton School District, (9th Cir., March 18, 2021), the U.S. 9th Circuit Court of Appeals upheld a Washington state school board's dismissal of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. The long-running high-profile case was before the 9th Circuit for the second time. (See prior posting.) The court issued a Summary of its decision along with the opinion, saying in part:

The panel held that the record before it and binding Supreme Court precedent compelled the conclusion that the District would have violated the Establishment Clause by allowing Kennedy to engage in the religious activity he sought. Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties. The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students. The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.

The panel held that Kennedy’s Title VII claims alleging failure to rehire, disparate treatment, failure to accommodate and retaliation also failed.

Judge Christen also issued a concurring opinion, joined by Judge Nelson. Friendly Atheist blog has more on the decision. [Thanks to Mel Kaufman for the lead.]

2020 EEOC Enforcement Data Released

The EEOC last week released Fiscal Year 2020 Enforcement and Litigation Data. It shows that 3.6% of the claims filed by the EEOC allege religious discrimination. The agency has also published a detailed breakdown of how the EEOC resolved the charges.

Discrimination Claim By Muslim Employee of Sheriff's Office Is Dismissed

In Domino v. County of Essex, (D NJ, Feb. 11, 2021), a New Jersey federal district court dismissed, without prejudice, a religious discrimination and hostile work environment claim brought by an African American Muslim male who was employed by the Bureau of Criminal Identification in the Essex County (NJ) Sheriff's Office. Plaintiff complained that a series of actions by the sheriff that variously ordered no beards, limited the length of beards and required documentation from his Imam of plaintiff's religious observance infringed his rights under various statutes and constitutional provisions. The court dismissed plaintiff's Title VII claim for failure to exhaust administrative remedies. It dismissed his equal protection claim for failure to allege a discriminatory purpose. It also dismissed claims under New Jersey civil rights laws.

Funeral Home Settles Transgender Employment Discrimination Claim After SCOTUS Loss

In June, the U.S. Supreme Court's Bostock decision held that Title VII of the 1964 Civil Rights Act which prohibits discrimination in employment "because of sex" protects gay, lesbian and transgender individuals. The decision covered three separate employment discrimination cases, one of which was R. G. & G. R. Harris Funeral Homes, Inc. v. EEOC. That case involved a discrimination claim by a transgender employee.  Yesterday the Detroit News reported that a Michigan federal district court has approved a settlement in the case:

U.S. District Judge Sean Cox on Monday approved the terms of the settlement between the estate of Stephens, who died in May, and her former employer, R.G. & G.R. Harris Funeral Homes, which going forward is prohibited from firing employees on the basis of transgender status.

Under the terms of the agreement, Harris Homes is to pay $130,000 to Stephens' estate, including $63,724 in back pay with interest and $66,276 in damages.

The consent decree also says Harris Homes, which operates three funeral homes in southeast Michigan, must pay another $120,000 to the ACLU Foundation for costs and plaintiff attorney fees.

The settlement also contains other remedial provisions.

Title VII Religious Exemption Does Not Protect Against Suit Over Sexual Orientation Discrimination

 In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (SD IN, Oct. 21,2020), an Indiana federal district court held that a former Catholic school guidance counselor who was fired because of her same-sex marriage may bring a discrimination claim under Title VII. The court rejected the school's contention that the religious institution exemption in Title VII applies. The court said in part:

Sexual orientation is a protected class under Title VII, and the language and legislative history of Title VII indicate Congress intended that religious institutions remain subject to Title VII's prohibition on discrimination on the basis of a protected class. To be sure, this case requires a careful balancing of religious liberty and an employee's right to be free from discrimination. The proper balance is to interpret Title VII's religious exemption to allow a religious employer to make hiring decisions in favor of coreligionists without facing claims of religious discrimination, but to allow a plaintiff to bring claims of other forms of Title VII discrimination. The religious exemption does not bar Starkey's Title VII claims of discrimination on the basis of sexual orientation, retaliation, and hostile work environment....

So, the question then becomes: Does a religious reason for an employment decision bar a plaintiff's Title VII claim when the religious reason also implicates another protected class?  The exemption under Section 702 should not be read to swallow Title VII's rules. It should be narrowly construed to avoid reducing Title VII's expansive rights and protections.

 Indiana Lawyer reports on the decision.

Pretextual Religious Reasons For Firing Not Protected By Religious Autonomy Doctrine

In Garrick v. Moody Bible Institute, (ND IL, Oct. 13, 2020), an Illinois federal district court allowed a former Instructor of Communications at Moody Bible Institute (MBI) to move ahead with her Title VII disparate treatment and retaliation claims, but not her hostile work environment claim. Plaintiff Janay Garrick says she encountered rampant gender discrimination and harassment, and that MBI used disagreement with her religious views as a pretext for her firing. Rejecting in part MBI's religious autonomy defense, the court said:

Garrick alleges that Moody expected female teachers of secular subjects to perform more demanding duties and submit to more onerous performance reviews than similarly situated male teachers.... Under those circumstances, a reasonable inference can be made from the allegations that Moody fired Garrick because it held female teachers to higher standards than their male counterparts, not because it disapproved of her egalitarian religious views.

The court had dismissed an earlier version of plaintiff's complaint on church autonomy grounds. (See prior posting.)

EEOC Sues Over Failure To Accommodate Seventh Day Adventist

The EEOC announced this week that it has filed a Title VII lawsuit against Texas-based Frito-Lay, Inc. for failing to accommodate the religious needs of a Seventh Day Adventist employee working in Florida. The Commission explained:

[A] West Palm Beach Frito-Lay warehouse employee applied for and received a promotion to route sales representative. The employee completed approximately five weeks of training without having to train on Saturdays. However, despite learning he could not work on Saturdays be­cause of his Seventh-day Adventist religious beliefs, Frito-Lay sched­uled him to train on Saturdays and terminated him after he failed to report to training on two consecutive Saturdays.

EEOC Sues On Behalf of Employees Who Refuse To Wear Company Aprons That Contain Rainbow Emblem

The EEOC announced yesterday that it has filed suit against a Conway, Arkansas Kroger store charging that it violated Title VII when it disciplined and then discharged two women employees who refused to wear Kroger aprons that display a rainbow-colored heart emblem.  The women believe that the apron endorses LGBTQ values and that wearing it violates their religious beliefs. Kroger refused the women's offers to wear other aprons or to cover the emblem.