Jewish Nursing Home Is Exempt From Title VII's Religious Discrimination Provision

In Shand v. Charles E. Smith Life Communities, (D MD, Sept. 23, 2019), a Maryland federal district court held that a Jewish nursing home, Hebrew Home of Greater Washington, is a religious organization for purposes of in Title VII. Under 42 U.S.C. § 2000e-1, religious organizations are exempt from the employment discrimination provisions of Title VII "with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [organization] ... of its activities."  In the lawsuit, a geriatric nursing assistant claimed the nursing home had failed to grant her request for a religious accommodation.

Amicus Briefs In SCOTUS Gay and Transgender Title VII Discrimination Cases Now Available

Dozens of amicus briefs have been filed with the U.S. Supreme Court and are now available from the SCOTUSblog case page in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At issue is whether Title VII of the 1964 Civil Rightts Act prohibits discrimination against transgender people based on their transgender status or on a "sex stereotyping" theory.  The 6th Circuit held that discrimination on the basis of transgender status violates Title VII. (See prior posting.) the Supreme Court will hear oral arguments in the case on Oct. 8.

Similarly, numerous amicus briefs are available in Bostock v. Clayton County, Georgia, (consolidated with Altitude Express, Inc. v. Zarda) which will also be argued on Oct. 8. These cases raise the question of whether Title VII prohibits sexual orientation discrimination. The 2nd Circuit in Altitude Express  held that Title VII does cover such discrimination. (See prior posting.) In the Clayton County case, the 11th Circuit held that Title VII does not ban sexual orientation discrimination.

EEOC Wins Settlement For Jehovah's Witness Employee

In a July 31 press release, the EEOC announced that American Medical Response of Tennessee, Inc., a medical transportation service company, has settled a religious discrimination lawsuit filed against it by the EEOC. The company will pay $40,000 in damages for refusing to continue accommodating a Jehovah's Witness employee's request for Sundays off for worship.  The company also entered a 2-year consent decree requiring it to develop a religious accommodation policy and train its employees regarding Title VII.

EEOC Sues McDonald's Franchisee For Failure To Compromise On Grooming Policy

The EEOC announced yesterday that it has filed a lawsuit in a Florida federal district court charging the owner of several McDonald's restaurant franchises in central Florida with religious discrimination.  McDonald's grooming policy requires all employees to be clean shaven.  The restaurant refused to grant an accommodation to a Hasidic Jew who was applying for a part-time maintenance position. The job applicant offered to wear a beard net, but said his religious beliefs preclude shaving.

UPDATE: Here is the full text of the complaint in EEOC v. Chalfont & Associates Group, Inc., (MD FL, filed 7/16/2019). [Thanks to Tom Rutledge.]

Religious Discrimination Claim By Security Guard Is Rejected

In Murphy v. Secretary, U.S. Department of Homeland Security, (ND WV, July 11, 2019), a West Virginia federal district court rejected religious discrimination claims brought plaintiff who was removed as a security guard at a U.S. Customs and Border Protection facility. Plaintiff who is Roman Catholic and whose wife is Buddhist claims he was removed because of a conversation about his religion that he had with a fellow employee. That fellow employee, a Southern Baptist, claimed that plaintiff had created a hostile work environment when plaintiff "placed his hands up, did a short dance, and asked ‘are you the ones that dance with snakes?'" Rejecting plaintiff's Title VII claim, the court said in part:

The Plaintiff fails to present any evidence that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of other employees outside the protected class who received less severe discipline. Accordingly, he has not shown a prima facie case of discrimination.

The court also rejected plaintiff's 1st Amendment claims.

SCOTUS Amicus Briefs Supporting Title VII Coverage of LGBTQ Discrimination Now Available

As previously reported, on Oct. 8 the Supreme Court will hear oral arguments in three cases posing the question of whether Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sexual orientation or gender identity. Wednesday was the deadline for amicus briefs supporting the parties asserting that Title VII bars such discrimination. More than 40 amicus briefs have been filed, and may be found through links to them on the SCOTUSblog case pages: here. here and here. Amicus briefs supporting the position of the employers in the cases are due Aug. 23.

Supreme Court Says Title VII Charge-Filing Prerequisite Is Not Jurisdictional

In Fort Bend County v. Davis, (US Sup. Ct., June 3, 2019) today the U.S. Supreme Court in a Title VII religious discrimination case held unanimously that the statutory requirement that an EEOC claim be filed before commencing suit in court is not jurisdictional.  Therefore defendant may forfeit this defense through undue delay in asserting it. Courthouse News Service reports on the decision.

Muslim Employees Sue Amazon Over Religious Accommodation and Discrimination

On Tuesday, Muslim Advocates filed a complaint (full text) with the EEOC charging that Amazon.com, Inc.'s Minneapolis facility discriminates against its Muslim Somali and east African workers. The complaint charges that, among other things, Amazon fails to reasonably accommodate employees' religious practices. It claims the company provides inadequate space and time for employees to pray, and does not accommodate Ramadan observance. Daily Caller reports on the lawsuit.

Supreme Court Hears Oral Arguments In Title VII Case

Yesterday the U.S. Supreme Court heard oral arguments (transcript of oral arguments) in Fort Bend County, Texas v. Davis. In the case, the 5th Circuit held that the the requirement a person exhaust administrative remedies before bringing a Title VII employment discrimination action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. Charlotte Garden at SCOTUSblog reports on the oral arguments.

8th Circuit Hears Arguments Over Title VII's Applicability To Sexual Orientation

Yesterday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Horton  v.  Midwest Geriatric Management (audio of full oral argument). As reported by the National Law Journal, at issue is whether Title VII's prohibition on discrimination "because of sex" covers discrimination on the basis of sexual orientation. In the case, a health care specialist sued after his offer of employment was rescinded, claiming the rescission came because his employer discovered he was gay.

SDNY: Title VII Anti-Retaliation Provision Does Not Apply To Critic of Religious Group's Gender Discrimination

In Aparicio v. Christian Union, Inc., (SD NY, March 29, 2019), a New York federal district court dismissed a Title VII retaliation claim brought by an employee of a religious organization. Christian Union is a non-profit organization that operates student leadership organizations at Ivy League colleges. Plaintiff, CUI's former Director of Public Affairs, claims that he was fired because he complained that CUI's policy of excluding women from leadership positions in the organization violates Title VII's anti-discrimination provision. Title VII explicitly allows religious organizations to discriminate on the basis of religion (but not on other bases).  The court here, however, went further. While concluding that the ministerial exception doctrine does not apply, it held:

... CUI's "complementarian" policy, which reserves executive positions for men, reflects its right to choose who performs certain religious roles within the organization. Therefore, in this case, the Free Exercise Clause bars the Court from asserting Title VII's secular sensibilities on who CUI allows to perform its highest religious roles.

Furthermore, Title VII's anti-retaliation provision does not apply when the basis for the alleged retaliation are an employee's objections to his or her employer's religious discrimination.... Essentially, Title VII "permits religious organizations to advance their religious missions by discriminating based on religion in employment," and, where a retaliation claim is based on complaints directed toward that permissible discrimination, Title VII's anti-retaliation provision "does not apply." Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 246, 254 (S.D.N.Y. 2005).

Accordingly, applying Title VII's discrimination and retaliation provisions to CUI's "complementarian" policy violate the Free Exercise Clause. For that reason, Plaintiff's Title VII anti-retaliation claim must be dismissed.

Failure To Provide Employee Religious Accommodation Upheld

In Dockery v. Maryville Academy, (ND IL, March 29, 2019), an Illinois federal district court dismissed an employee's Title VII failure to accommodate and religious discrimination claims. Plaintiff, a youth care worker at a child welfare agency, wanted Fridays and Saturdays off for religious reasons. According to the court:

It remains unclear to the Court what religion Plaintiff claims to belong. Some evidence indicates that Plaintiff is Jewish. Plaintiff identified himself as a “Jew” on his employee information sheet. Plaintiff refereed to his culture as Judaism during his deposition. Yet Plaintiff also testified that his culture believes that Jesus Christ is the savior....  Still, the Court recognizes that “sincerity rather than orthodoxy is the touchstone” for determining whether a belief is sincerely held.

The court concluded however:

Defendant had an objective basis for questioning whether Plaintiff sincerely believed that it was against his religion to work during the sabbath. Plaintiff’s failure to provide more information to his employer as requested is grounds for granting summary judgment.

Firefighter Not Entitled To Religious Exemption From Grooming Policy

In Smith v. City of Atlantic City, (D NJ, March 22, 2019), a New Jersey federal district court upheld the refusal by the Atlantic City Fire Department to grant a long-time employee a religious exemption from the Department's grooming policy.  Plaintiff is an African American male and a Christian who has recently decided to grow a 3-inch beard as an expression of his religious faith. Rejecting plaintiff's application for a temporary restraining order, the court concluded that he was unlikely to succeed on the merits of his free exercise, equal protection or Title VII claim.

CORRECTION: SG's Views Sought In Title VII Religious Accommodation Case

The U.S. Supreme Court today asked for the Solicitor General to file a brief in Patterson v. Walgreen Co., (Docket No. 18-349, 3/18/2019). (Order List). In the Title VII case, the 11th Circuit held that Walgreens had offered reasonable accommodation for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting.) A prior posting incorrectly reported that cert. had been denied in the case.

Supreme Court Grants Cert. In Title VII Religious Discrimination Jurisdictional Case

The U.S. Supreme Court today granted review on a procedural issue in a Title VII religious discrimination case--  Fort Bend County, Texas v. Davis, (Docket No. 18-525, certiorari granted, 1/11/2019). (Order List). In the case, the U.S. 5th Circuit Court of Appeals held that the the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. (See prior posting.) Here is SCOTUSblog's case page giving links to the filings with the Supreme Court in the case.

9th Circuit Hears Oral Arguments In Title VII Case Against Salvation Army

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Garcia v. Salvation Army (video of full arguments). In the case, an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army. Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending Salvation Army services.  The court held that Title VII's religious organization exemption applies and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense. (See prior posting.) [Thanks to John Jackson for the lead.]

8th Circuit: Title VII Failure To Accommodate Does Not Equal Retaliation

In EEOC v. North Memorial Health Care, (8th Cir., Nov. 13, 2018), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, interpreted Title VII's unlawful retaliation provision. At issue is the interpretation of 42 U.S.C. § 2000e-3(a) that makes it illegal to discriminate against an employee or applicant for employment because the person "has opposed" an employer's discriminatory practices. In the case, an employment offer to a Seventh Day Adventist registered nurse was withdrawn because she was unable to work Friday night shifts and an accommodation was not feasible.  The majority held that merely requesting religious accommodation is not necessarily an expression of opposition to a denial of the accommodation.  Judge Grasz dissenting explained the opposing views:

I do share the Court’s apparent concern that Title VII not be read so that meritless discrimination claims based on a failure to accommodate may simply be repackaged and resurrected as retaliation claims. In my view, however, it is the causation element that properly does the work of weeding out such claims, not the opposition requirement. Where an employer, after denying an accommodation request that it is not legally obligated to grant, refuses to hire an applicant because the applicant cannot or will not perform the job without accommodation, the employer can show the legitimacy of the action.... Unlike such repackaged claims, the claim here should survive because there is evidence of retaliation, namely the evidence that Sure-Ondara told North Memorial she would work the job even without the accommodation and would show up for work if she could not find a replacement. Despite her willingness to work without accommodation, North Memorial withdrew its job offer, making it reasonable for a fact-finder to infer that it did so because she had requested an accommodation.

Government Brief To SCOTUS Says Title VII Does Not Ban Transgender Discrimination

On Wednesday, the Justice Department filed a brief (full text) with the U.S. Supreme Court arguing that Title VII of the 1964 Civil Rights Act does not cover discrimination against an individual based on gender identity. The brief follows the position taken by the Trump Administration in an Oct. 2017 Justice Department Memo.  The brief was filed in response to the petition for certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, in which the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. (See prior posting.) The government's brief ultimately urges the court to hold the petition in this case pending its decision on whether to grant review in two other cases raising similar issues. NBC News reports on the DOJ brief. SCOTUS blog has links to all the briefs filed with the Supreme Court in the case.

EEOC Sued Over Enforcement of LGBT Protections Without Religious Exemption

A class action lawsuit was filed last week in a Texas federal district court against the EEOC on behalf of all churches that oppose homosexual or transgender behavior for sincere religious reasons and on behalf of all businesses with similar beliefs.  The complaint (full text) in U.S. Pastor Council v. EEOC, (ND TX, filed 10/6/2018), says that the EEOC interprets Title VII as covering employment discrimination on the basis of sexual orientation or gender identity, without a religious exemption. It contends that this violates RFRA and the First Amendment.  the suit seeks to enjoin the federal government from interpreting or enforcing Title VII in a manner that requires churches or businesses with religious objections to recognize same-sex marriage or extend spousal benefits to same-sex partners, or to require objecting businesses to allow employees to use rest rooms reserved for persons of the opposite biological sex.  It also asks the court to require that any future EEOC guidance on Title VII's application to gay or transgender individuals include a religious exemption. The lawsuit was filed by the same law firm that has recently filed two challenges to Austin, Texas' anti-discrimination ordinances. (See prior posting.) [Thanks to Jeff Pasek for the lead.]

EEOC Sues Over Religious Objections To Flu Shot

The EEOC announced last week that it has filed suit against Saint Thomas Rutherford Hospital in Murfreesboro, Tennessee, for requiring an employee of the contractor providing food and environmental services to have a flu shot if the employee wished to continue to work there. The employee refused on religious grounds.  In prior years accommodation was provided by allowing employees to wear a protective mask instead.