7th Circuit Reluctantly Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Hively v. Ivy Tech Community College, (7th Cir., July 28, 2016), the U.S. 7th Circuit Court of Appeals adhered to its past precedent and held that Title VII of the 1964 Civil Rights Act does not cover employment discrimination on the basis of sexual orientation. However two of the three judges (Judge Rovner who wrote the opinion and Judge Bauer) apparently did so hesitantly, joining in the lengthy portions of the opinion that review the anomalies produced by this conclusion.  They said in part:

As things stand now, ... our understanding of Title VII leaves us with a somewhat odd body of case law that protects a lesbian who faces discrimination because she fails to meet some superficial gender norms—wearing pants instead of dresses, having short hair, not wearing make up— but not a lesbian who meets cosmetic gender norms, but violates the most essential of gender stereotypes by marrying another woman. We are left with a body of law that values the wearing of pants and earrings over marriage. It seems likely that neither the proponents nor the opponents of protecting employees from sexual orientation discrimination would be satisfied with a body of case law that protects “flamboyant” gay men and “butch” lesbians but not the lesbian or gay employee who act and appear straight....

In addition to the inconsistent application of Title VII to gender non‐conformity, these  sexual orientation cases highlight another inconsistency in courts’ applications of Title VII to sex as opposed to race....  [C]ourts and the Commission have consistently concluded that the statute prohibits discrimination based on an employee’s association with a person of another race, such as an interracial marriage or friendship..... But ... Title VII ... has not protected women employees who are discriminated against because of their intimate associations with other women, and men with men....

Perhaps the writing is on the wall. It seems unlikely that our society can continue to condone a legal structure in which employees can be fired, harassed, demeaned, singled out for undesirable tasks, paid lower wages, demoted, passed over for promotions, and otherwise discriminated against solely based on who they date, love, or marry. The agency tasked with enforcing Title VII does not condone it, ...; many of the federal courts to consider the matter have stated that they do not condone it...; and this court undoubtedly does not condone it.... But writing on the wall is not enough. Until the writing comes in the form of a Supreme Court opinion or new legislation, we must adhere to the writing of our prior precedent....

Judge Ripple concurred in the outcome, but did not join those part of the opinion expressing doubt about the continued viability of the past precedent.  The decision came in the case of a part-time adjunct professor at a community college who claimed that she was denied a full-time position. Indy Star reports on the decision.

Mormon Car Salesman Sues Claiming Religious Harassment By Employer

Arkansas Online reported yesterday on a religious discrimination lawsuit filed by a former auto salesman against a Fort Smith, Arkansas Ford dealership.  Richard Black says that about two weeks after he began working for Randall Ford, the used car manager began to question him intrusively about his religious beliefs. He particularly harassed him about his religious undergarments.  Black also complained that he was told to lie to customers about prices and deals in order to sell vehicles.  After 7 months he was fired, being told he did not fit in.  The suit was filed in state court in June and removed to federal court last week.

EEOC Sues For Rastafarian Fired From Disney World Hotel

The EEOC announced yesterday that it has filed a religious discrimination lawsuit against HospitalityStaff, an Orlando, Florida based staffing company that fired Courtney Joseph, a Rastafarian employee who was assigned to work as a prep cook at a Walt Disney World resort hotel.  Joseph grew his hair into dreadlocks because of his religious beliefs.  For over a year, he worked with his dreadlocks tucked under his hat. However after a 2013 inspection of the kitchen by a Disney staff member for compliance with the company's appearance standards, the staffing company told Joseph he must cut his hair. When he refused, he was fired. The lawsuit alleges that HospitalityStaff made no effort to accommodate Joseph's religious beliefs. Orlando Sentinel reports on the lawsuit.

Title VII Is Sole Basis For Claims of Religious Discrimination Against Federal Employee

In Holly v. Jewell, (ND CA, July 11, 2016), a California federal magistrate judge held that Title VII is the sole remedy for discrimination in federal employment.  Neither the First Amendment nor RFRA may be used as the basis for a religious discrimination claim by a federal employee.  In the case, plaintiff who was employed as a maintenance worker at the  San Francisco Maritime National Historic Park was also a Baptist minister.  While on a break and out of uniform, he performed a baptism at the seashore adjoining the park.  He was terminated for this-- though plaintiff also complained that he was questioned about a Bible that he kept to read on breaks.  The court dismissed plaintiff's RFRA claim, holding that recent Supreme Court RFRA decisions have not changed the rule that Title VII is the exclusive remedy for discrimination in federal employment.  The court also dismissed plaintiff's free exercise claim to the extent that it challenges conduct protected by Title VII, but held that plaintiff can file an amended complaint to the extent that he has a First Amendment claim that is separate from his Title VII claim.

In New Suit, 10 States Challenge Feds' Interpretation of Transgender Rights

Yesterday, Nebraska and nine other states filed suit against the federal government challenging interpretations of the anti-discrimination provisions of Title VII and Title IX by the Department of Justice, the Department of Education, OSHA and the EEOC.  Federal agencies have asserted that the ban on discrimination on the basis of "sex" includes a ban on discrimination based on gender identity. The complaint (full text) in State of Nebraska v. United States, (D NE, filed 7/8/2016) contends that these interpretations were adopted in violation of the Administrative Procedure Act and various constitutional provisions.  Joining Nebraska in the lawsuit are Arkansas, Kansas, Michigan, Montana, North Dakota, Ohio, South Carolina, South Dakota and Wyoming. Omaha World-Herald reports on the lawsuit. In May, eleven other states filed a similar lawsuit in federal district court in Texas. (See prior posting.)

DC Circuit In Procedural Reversal Allows Religious Discrimination Suit To Proceed

In Al-Saffy v. Vilsack, (DC Cir., July 1, 2016), the U.S. Court of Appeals for the D.C. Circuit reversed the district court and allowed a religious and national origin discrimination claim against both the Department of Agriculture and the Department of State to proceed.  As stated by the court, "Determining whether Al-Saffy’s lawsuit was properly brought requires us to navigate a quagmire of procedural rules."  BNA Daily Labor Report summarizes the court's holding:

Mohamed Tahwid Al-Saffy raised genuine factual issues about whether Agriculture and State were his joint employers when he directed the trade offices in Saudi Arabia and Yemen.... Although Al-Saffy wasn't “officially employed” by the State Department, he reported directly to the ambassadors of Saudi Arabia and Yemen, who are State employees, the court said.....

The court also rejected arguments that Al-Saffy did not file his lawsuit in a timely manner.  Again BNA summarizes the court's holding:

An EEOC order that omits that required information can't trigger the 90-day deadline, the court said. Al-Saffy therefore retained the option to sue at any time after 180 days had elapsed from his filing of the original administrative complaint....

EEOC Sues Over Firing of Seventh Day Adventist

The EEOC announced yesterday that it has filed suit against Greenville Ready Mix Concrete, Inc., a North Carolina based company, for refusing to accommodate the religious observances of a Seventh Day Adventist employee.  Michael Cole, a truck driver for the company, was baptized as a Seventh-Day Adventist in February 2014, after which he asked not to work on Saturdays.  The company nevertheless scheduled him for a Saturday, and fired him when he refused.

EEOC Sues Claiming Inadequate Accommodation of Refusal To Take Flu Shot

The EEOC announced last week that it has filed suit in a Massachusetts federal district court against Baystate Medical Center in Springfield, Massachusetts for failing to accommodate an employee who, for religious reasons, refused to get a flu vaccination.  The medical center allows employees with religious objections to instead wear a mask at work.  Stephanie Clarke, a recruiter in Baystate's human resources department, initially wore the mask, but job applicants could not understand her when they spoke to her. So she removed her mask and requested Baystate to find a different accommodation. Instead Baystate put her on indefinite, unpaid leave, and when she complained it terminated her employment. EEOC argues that an accommodation under Title VII must both respect the employee's religious beliefs and permit her to do her job effectively. Here she was terminated because she complained about religious discrimination. BNA Daily Labor Report has more on the suit.

11 States Sue Feds Over Transgender Rights

Nine states and officials from two others filed suit yesterday against the federal government, challenging various interpretations of the anti-discrimination provisions of Title VII and Title IX by the Obama Administration. Various guidance documents, the most recent or which was issued earlier this month (see prior posting), take the position that the ban on "sex" discrimination found in existing laws encompass a ban on discrimination against transgender individuals. The complaint (full text) in State of Texas v. Untied States, (ND TX, filed 5/25/2016), citing the Administrative Procedure Act and other constitutional and statutory provisions, alleges:

Defendants have conspired to turn workplaces and educational settings across the country into laboratories for a massive social experiment, flouting the democratic process, and running roughshod over commonsense policies protecting children and basic privacy rights. Defendants’ rewriting of Title VII and Title IX is wholly incompatible with Congressional text. Absent action in Congress, the States, or local communities, Defendants cannot foist these radical changes on the nation.

New York Times reports on the lawsuit.

Supreme Court Says Attorneys' Fees In Title VII Actions Available In Procedural Wins

Yesterday, in a case that has implications for religious discrimination cases brought by the EEOC, the U.S. Supreme Court held that successful defendants in employment discrimination cases can recover attorneys' fees when they win on procedural grounds, as well as when they succeed on the merits.  In CRST Van Expedited, Inc. v. EEOC, (Sup. Ct., May 19, 2016), the court held that "a defendant need not obtain a favorable judgment on the merits in order to be a 'prevailing party.'" SCOTUSblog has more on the decision.

North Carolina Sues Feds In Transgender Bathroom Dispute

As previously reported, last week the U.S. Department of Justice sent a letter to North Carolina Governor Pat McCrory warning that compliance with North Carolina's recently enacted House Bill 2 on transgender bathroom access places the state in violation of Title VII of the 1964 Civil Rights Act, and threatens millions of dollars in federal funding.  The letter called for a response from the state by today.  As reported by the Washington Post, this morning Gov. McCrory filed suit against the federal government challenging its interpretation of the federal civil rights laws.  The complaint (full text) in McCrory v. United States, (ED NC, filed 5/9/2016) asserts that the Justice Department's position constitutes "a baseless and blatant overreach."  It argues in part:

This is an attempt to unilaterally rewrite long-established federal civil rights laws in a manner that is wholly inconsistent with the intent of Congress and disregards decades of statutory interpretation  by the Courts. The overwhelming weight of legal authority recognizes that transgender status is not a protected class under Title VII. If the United States desires a new protected class under Title VII, it must seek such action by the United States Congress.... Moreover, the Department has similarly overreached in its interpretation of the Violence Against Women Reauthorization Act of 2013 (“VAWA”).

The University of North Carolina, which was also warned by the Justice Department in connection with its obligations under Title IX, was not one of the plaintiffs in the lawsuit.

EEOC Sues Hospital Over Arbitrary Deadline For Religious Accommodation Requests

The EEOC announced today that it has filed a religious discrimination lawsuit against Mission Hospital based in Asheville, North Carolina.  At issue are requests by 3 employees for religious exemptions from the hospital's requirement that all employees receive the flu vaccine by December each year.  The hospital allows religious exemptions, but requires that the request be made by Sept. 1. The employees here made their requests after the deadline. The requests were denied and the employees were fired.  According to the EEOC:

An arbitrary deadline does not protect an employer from its obligation to provide a religious accommodation. An employer must consider, at the time it receives a request for a religious accommodation, whether the request can be granted without undue burden.

Lay Minister Sues Georgia Health Department For Employment Discrimination

As reported by The Blaze, 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 has filed a religious discrimination suit in federal district court in Georgia.  The complaint (full text) in Walsh v. Georgia Department of Public Health, (ND GA, filed 4/20/2016), contends that Eric Walsh's position was terminated because of the content of sermons he had given as a Seventh Day Adventist lay minister. In the sermons, he criticized Catholicism, called homosexuality sinful and characterized evolution as a religion created by Satan. The suit seeks damages, reinstatement and injunctive relief for violations of Title VII of the 1964 Civil Rights Act and the 1st and 14th Amendments. A statement from a spokesperson for the Georgia Department of Public Health said that the withdrawal of a conditional offer to Walsh had nothing to do with his religious views, but instead was triggered by a finding that Walsh failed to disclose outside employment to his prior public health agency employer in California.

Hospital Offered Reasonable Accommodation To Employee Rejecting Flu Shot

In Robinson v. Children's Hospital Boston, (D MA, April 5, 2016), a Massachusetts federal district court dismissed a Title VII and state discrimination claim by a hospital emergency room worker who refused on religious grounds to be immunized for influenza. Plaintiff, who was apparently a follower of Nation of Islam, initially refused the vaccine because it contained pork products, but the hospital offered her a non-gelatin vaccine.  She continued to refuse on religious grounds, was granted a temporary medical leave and was allowed to look for a non-patient area position in the hospital. When she was unable to find another position, she was terminated.  The court held that the hospital had offered plaintiff reasonable accommodation and that  allowing her to remain in the patient area unvaccinated would have posed an undue hardship. Boston Herald reports on the decision.

Catholic School Principal's Title VII Suit Dismissed Under "Ministerial Exception"

In Fratello v. Roman Catholic Archdiocese of New York, (SD NY, March 29, 2016), a New York federal district court held that the "ministerial exception" to Title VII of the 1964 Civil Rights Act precludes the former lay principal of a Catholic elementary school from suing for employment discrimination.  Plaintiff alleged that her employment was terminated as a result of gender discrimination and retaliation. In relying on the ministerial exception doctrine as set out in the U.S. Supreme Court's 2012 Hosanna-Tabor decision, the district court said in part:

There is no dispute that Plaintiff is not a member of the clergy and that she would not be considered a minister for purposes of Church governance. But the issue here is one of U.S., not canon, law, and “minister” for purposes of the ministerial exception has a far broader meaning than it does for internal Church purposes. 

EEOC Files 2 Suits Alleging Title VII Already Covers Sexual Orientation Discrimination

The EEOC announced yesterday that it has filed its first two suits in federal court testing its theory that existing laws barring discrimination on the basis of sex cover discrimination on the basis of sexual orientation. In an administrative decision under Title VII handed down in July, the EEOC held that "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." (See prior posting.) Yesterday's suits build on that.  In EEOC v. Scott Medical Health Center, P.C., (WD PA, filed 3/1/2016), the complaint (full text) alleges that a gay male employee's manager repeatedly directed anti-gay epithets at him, as well as other highly offensive comments about his sexuality and sex life. In the other suit, EEOC v. Pallet Companies, (D MD, filed 3/1/2016), the complaint (full text) alleges that a lesbian employee was harassed by her supervisor with comments about her sexual orientation and appearance, and was fired in retaliation for complaining. BuzzFeed reports on the lawsuits.

Title VII Suit Dismissed Under Ministerial Exception

In Moreno v. Episcopal Diocese of Long Island, 2016 U.S. Dist. LEXIS 16543 (ED NY, Jan. 20, 2016), a New York federal magistrate judge recommended dismissing a Title VII action brought by an African-American Episcopal pastor who claimed that his dismissal from his position was the result of racial discrimination.  The court held that the ministerial exception doctrine applied, saying:

The Supreme Court clarified that the purpose of this exception is "not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful — a matter 'strictly ecclesiastical,'—is the church's alone."

Former Atheist Employee Can Move Ahead With Title VII Suit Against Christian Business

Mathis v. Christian Heating & Air Conditioning, Inc., (ED PA, Jan. 25, 2016) is a discrimination lawsuit brought under Title VII of the 1964 Civil Rights and and under the Pennsylvania Human Relations Act by an installation mechanic who was fired  or constructively discharged for covering the back of his identification badge with tape to hide his employer company's religious mission statement.  The company's owner is a born-again Christian, while plaintiff is an atheist.  The statement which plaintiff taped over read:

This company is not only a business, it is a ministry. It is set on standards that are higher than man’s own. Our goal is to run this company in a way most pleasing to the Lord.

Treating employees and customers as we would want to be treated along with running a business as if we are all part of one big family is our plan.

The court rejected defendant's RFRA defense, holding that RFRA applies only to suits in which the government is a party.  The court went on to hold that plaintiff had established a prima facie case of failure to accommodate his atheistic beliefs, saying:

Under Title VII, atheists are entitled to the exact same protection as members of other religions.... A reasonable trier of fact could infer from this evidence that Peppelman terminated plaintiff’s employment “with the motive of avoiding accommodation,” in violation of Title VII.

The court also held that plaintiff can move ahead with his retaliation claim.

Cosmetologist Sues After Company Insists That In Training Class He Wear Women's Cosmetics

The Detroit Free Press reported yesterday on an unusual Title VII religious accommodation lawsuit filed Monday in a Michigan federal district court.  Barry Jones is an ordained elder in the Church of God in Christ where he has been preaching for 19 years. He is also trained in cosmetology and licensed by the Michigan Department of Licensing as an esthetician. In 2014 he took a position with an M.A.C. Cosmetics store in a now-closed Detroit area mall and began its training to become a full-time makeup artist.  As part of the training the company insisted that students apply makeup to each other, including blush, eye-shadow, lipstick and false eyelashes, so that they would know how those products feel when they apply them to customers.  Jones refused on religious grounds, quoting Deuteronomy 22:5 that prohibits a man from wearing women's clothing. He said that doing anything that makes him look like a woman would undermine his integrity as a preacher.  The company demoted Jones to be a freelance makeup artist, and he could not find work.  After obtaining a right to sue letter from the EEOC, Jones filed suit.

Jury Awards Fired Muslim Drivers $240,000 In Damages

According to the Peoria Star Journal , an Illinois federal district court jury this week awarded $240,000 in damages to two Muslim men who were fired by the Illinois-based Star Transport, Inc. when the men refused on religious grounds to deliver alcohol.  In March, a federal judge held that the company's failure to accommodate the drivers' religious practices violated Title VII.  The 2-day jury trial focused on the amount of damages.  However it is unclear whether the judgment is collectible since the company went out of business earlier this year. (See prior related posting.)