Archive for the 'Employment' Category

Employment Rights in a Religious Work Place: The Ministerial Exception

Kate Drumgoole, New Jersey native, loved her job. She worked for Paramus Catholic High School as a guidance counselor and women’s basketball coach.  She also loves her wife, a fact the school was unaware of until recently.  Upon learning of Ms. Drumgoole’s marriage, the school fired her.  Ms. Drumgoole has since filed an employment discrimination lawsuit against Paramus.

Employers are forbidden from taking adverse employment action, such as firing an employee, based on a protected class like gender, race, or national origin. Sexual orientation, while not considered a protected class in every state, is a recognized protected class in New Jersey and has been considered a protected class by the Equal Employment Opportunity Commission for several years now. However, Paramus argues that they are protected by their First Amendment freedom of religion in firing Ms. Drumgoole for not living according to the tenets of their faith.  In her lawsuit, Ms. Drumgoole contests this allegation, pointing out that Paramus employs faculty members who are divorced or violate other Catholic tenets.

Ms. Drumgoole is not alone; more than 50 people have been fired or had employment offers rescinded by religious institutions for similar reasons since 2010. An Indiana Catholic School recently fired a teacher of purely secular topics after it came to her attention she used in vitro fertilization to become pregnant—calling her a “grave immoral sinner.”  An Ohio woman was fired by a religious institution earlier this year over being artificially inseminated. In Florida, a woman was fired for becoming pregnant outside of marriage.

Discrimination based on pregnancy is well established as gender discrimination, a federally protected class throughout the U.S. So how can religious institutions make employment decisions based on such clearly discriminatory reasons without fear of lawsuits such as Mrs. Drumgoole’s?  The answer lies in the interplay between employment rights and freedom of religion—the ministerial exception.

The Ministerial Exception and the Hosanna Case

To preserve the separation of church and state, as well as the free exercise of religion, employment law has a carve out for religious institutions, allowing them to favor those who share their beliefs. The Ministerial exception is so named because the employees who typically embody this carve out are church minsters. The exception is an affirmative defense—it must be proved by a religious employer seeking its refuge—which has historically been interpreted to allow discrimination on the basis of religion, but not as a loophole to any neutrally applied valid law. It specifically wasn’t generally considered an exception to non-religious discrimination.  This changed with the 2012 Supreme Court case which first recognized the ministerial exception—Hossana-Tabor Evangelical Lutheran Church v. EEOC.

The case was brought by Cheryl Perich, an ordained teacher at a Hossana who went on disability leave after she was diagnosed with narcolepsy. After six months leave, Hosanna asked Ms. Perich to resign.  Ms. Perich refused and threatened a lawsuit for violation of the American’s With Disabilities Act which requires employers to make reasonable accommodations for employee’s with disabilities and forbids discrimination based on an employee’s disability.  Hosanna fired Perich, explicitly over her disability.  Perich sued.

Unfortunately for her, the Supreme Court unanimously came out in favor of a particularly strong version of the ministerial exception. They ruled that employees who have a role in conveying the Church’s message and carrying out its mission” are barred by the First Amendment from suing over employment discrimination. This broad protection meant that religious institutions are totally insulated from discrimination lawsuits so long as the person suing them counts as a “minister.” This left the question, who qualifies as a minister.

Perich was ordained, but spent only a small portion of her time teaching anything that had to do with religion. However, the Court certainly felt she qualified as a minister. Unfortunately, the Court was also intentionally sparse on exactly why. They wanted to avoid a clearly delineated test for fear of excluding religions with different traditions. They did make it clear that the portion of time spent with religious duties is a factor, but not a deciding one on its own. However, as an ordained minister in both Hosanna and her own eyes, the Court felt there was little doubt Perich was a minister.

The Legal Landscape After Hosanna

After Hosanna, many have questioned the breadth of the ministerial exception.  The exception has seen some abuse. Catholic schools adding “minister” to every employee’s job description from teachers to receptionists to janitors.  Religious institutions often supplement this argument by making all employees sign a contract agreeing to uphold the tenets of their faith.

The flip side to this potential is the sanctity of church and state. Should a religious institution be legally forced to employ somebody who conflicts with their beliefs? As an extreme example, a synagogue shouldn’t have to employ a Holocaust denier.

The happy medium likely extends the exception more narrowly, to people whose positions implicate primarily religious duties. As it stands, the ministerial exception is extremely broad. The current state of the law bars ministers from bringing any employment discrimination or retaliation against a religious employer, regardless of whether the discrimination is related to religious tenets. As mentioned above, this clarification is a tricky prospect to say the least due to the differences between religions.

The truth is, since Hosanna the courts have done more to expand the exception than limit it.  There are some courts, such as this year’s Fratello v. Roman Catholic Archdiocese of New York, which have applied Hosanna as a balancing factor test looking at whether 1) the school held the employee out to the world as a minister, (2) the employee’s title connoted a religious “calling,” (3) the employee held themselves out as a minister and (4) the employee had religious responsibilities.  However, prior to this case the vast majority of courts have given much more deference to the religious organization’s categorization of an employee.

The cases discussed in the beginning of this article all deal with employees with completely or primarily non-secular duties. Cases like Ms. Drumgoole’s, pitting protected groups and employment discrimination against the ministerial exception, will help winnow down the exception and assist courts in understanding when a religious institution is properly due the protections of the First Amendment. Generally, the Constitution provides rights to protect yourself—not assert those rights as a license to discriminate or diminish the rights of others.

South Dakota Initiative Fuels Right to Work Debate

Right to work laws have been a center of controversy in recent years, with a number of laws facing constitutional challenges in the courts. You might hear this and be surprised, as “right to work” certainly doesn’t sound like a controversial topic. Pretty much everybody would agree that reducing unemployment is a good thing—if that was what right to work meant.

While right to work sounds purely innocuous, the name is a bit of a misnomer—crafted to intentionally frame a more controversial policy point in as positive a light as possible. The confusingly named right to work actually deals with an employee’s choices when it comes to joining or not joining a union.

The Current Situation

The laws are a product of a federal law from 1947 called the Taft-Hartley Act. The act prohibited employers from running closed shops—agreements where they only hire unionized workers.  However, it allowed union shops—agreements where employees are required to join a particular union within a certain period of time after being hired.  The act also has a section which allows states to ban union shops as well.

The laws based on this section are right to work laws and are, at this point, exclusively state law. While they vary state to state, they all do essentially the same thing—allow an employee to opt out of paying union dues while still benefitting from union representation. Due to the exclusive bargaining agreements unions provided by the National Labor Relations Board (NLRB), The laws do not apply to federal workers, railroad workers, and airline workers.

There are currently twenty-six states which have right to work laws: Alabama, Arizona, Arkansas, Kansas, Florida, Georgia, Idaho, Indiana, Iowa, Louisiana, Michigan, Mississippi, Nebraska, Nevada, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia, Wisconsin, and Wyoming.

Right to work tends to be a conservative agenda point, with liberal interests preferring stronger unions with more money to advocate for higher wages and greater employee rights. Those supporting right to work laws argue that employees should not be forced to pay a union whose positions they do not agree with—often framing the laws as a free speech issue.

Critics respond that you are already allowed to opt out of union political activities and only pay for representation as to your wages and rights in the workplace. They argue that “right to work” is a thinly veiled attack on the strength of unions by taking money out of their pockets—allowing so-called “free rider” employees to get all the benefit of a union without actually paying anything. After all, many employees would take the representation for free if it’s an option, regardless of their opinions about the union.

South Dakota’s Initiative 23

As mentioned above, South Dakota is among the states that have enacted a right to work law.  However, they have certainly been listening to the arguments of right to work critics, as last week they have proposed a new law—Initiative 23—which allows corporate and non-profit organizations–including unions–to charge for services rendered.  This essentially has the effect of allowing unions to charge employees they represent regardless of whether somebody chooses to join that union.

This a huge move as South Dakota is one of the first states to ever introduce a right to work law, doing so via a state constitutional amendment in 1946. Proponents of the law argue that it allows unions to charge for actual services rendered while still allowing employees to opt out of a union if they disagree with its position. Obviously, its opponents say that it’s simply a loophole to right to work—essentially removing any protections provided by South Dakota’s law.

The critics are right to a degree, the initiative neuters South Dakota’s right to work law in everything but the most technical sense. However, this law highlights a nationwide trend of struggle back and forth over whether these right to work laws should exist in the first place.

A Nationwide Controversy

Just this year, shortly after Wisconsin adopted a right to work law, a Wisconsin Circuit Court Judge ruled Wisconsin’s right to work law unconstitutional. The law itself was incredibly controversial even before this ruling, so unpopular that it led to an unsuccessful attempt to recall Wisconsin’s Governor Scott Walker.  The court’s ruling was based on an argument that right to work provisions are unconstitutional takings.

This argument is currently on appeal to the Wisconsin Supreme Court, and frankly is unlikely to stand. Takings deals with the government taking all or part of property from a private party, either through eminent domain (the government simply laying claim to the property) or through regulation removing all use for the property.  Not only does takings generally deal with real property (houses and land and such), making it fairly unsuited to an argument regarding  the potential profits from services provided by a union, the 7th Circuit—of which Wisconsin is a part—has explicitly considered and rejected the argument of takings when it comes to the constitutionality of right to work laws.  The 7th Circuit ruling argued that unions are compensated for their representation by their government sanctioned exclusive bargaining position with employers.

While unlikely to succeed, this isn’t the first challenge of its type or even the only recent one. The constitutionality of Indiana’s right to work law was challenged back in 2012, with the law only found constitutional as recently as 2014. The Indiana case had a bit of a twist to it, in that the Indiana Constitution explicitly guarantees that no person’s services shall be demanded without just compensation.  Unions argued that this guaranteed them pay for the bargaining service they provided. Ultimately the courts disagreed; they ruled that unions were not required to become exclusive bargaining representatives and their choice to accept that role placed responsibilities on them along with the rights it provided.

Recent Debate Over a Federal Right to Work

The struggle over right to work acts hasn’t just pushed in the direction of curtailing these types of laws. Earlier this year, the Supreme Court of the United States dealt with a case with the potential to create what was essentially a federal right to work—applying to all public employees.

The issue was hotly debated, framing the issue as “free riders” versus “compelled passengers.” To highlight just how contentious this issue is, after the death of Justice Anthony Scalia, the Supreme Court was forced to declare a 4-4 deadlock on the issue.  Petitioners have requested a rehearing, but it will have to wait for the next presidency and appointment of a ninth Justice as the conservative side of Congress has made it clear they won’t consider any appointee suggested by the Obama administration.

Right to work is a back and forth battle throughout the country. On one side, the laws provide workers more options, but at the same time they take money away from unions who would use it to negotiate higher wages and better workers’ rights. The direction these laws will take is something only the future can reveal.

McDone: An End to Big Franchised Chains?

You’d be hard pressed to drive a few blocks in any downtown district without seeing one or two franchised businesses. From fast food to coffee shops, franchising is a huge part of business in the U.S.

For those unfamiliar, franchising is the practice of selling your business model and branding to would-be entrepreneurs (franchisees) who then start their own independent business under the banner of the franchisor. For instance, while there are corporate owned McDonalds locations, there are many more locations owned by franchisees—a whopping 83% of all McDonalds around the world.

McDonalds has done very well with this business model. In fact, their stated goal is to increase the number of franchisee run locations to 95% of the total McDonalds worldwide.  With this in mind, the higher ups at McDonalds must be terrified because they’re facing lawsuits from the National Labor Relations Board (NLRB) that could destroy the entire franchisor-franchisee business model.

Making McDonalds an Employer?

Back in 2014, the NLRB brought 43 different cases against McDonalds, arguing that they are a joint employer with their franchisees and are responsible to the employees of those franchisees. Now, two long years later, one of these cases has finally withstood McDonalds’ many challenges to its validity as a case and has been given the go ahead to be seen by a jury—an indication that the judge feels that the facts of the case could go either way.  McDonalds

So what exactly does this case mean for McDonalds? The big allegations are two-fold.  First, McDonalds is a joint employer alongside their franchisees.  In the alternative, the NLRB argues that McDonalds is a joint employer because it has behaved in such a way that the franchisee’s employees reasonably believed themselves to be employees of the McDonalds corporation—a twist on a legal concept known as ostensible agency.

Joint employment is a situation where more than one entity acts as the employer of a single employee, with all the responsibilities that go along with that status. The NLRB’s case on this point has been bolstered by recent changes to how joint employment works in a case this blog has discussed beforeBrowning-Ferris Industries. The argument applying this test has not survived summary judgment—a ruling from the judge on the facts without need to go to a jury.

However, what has survived summary judgment is the NLRB’s ostensible agency argument, bringing this issue before a jury. This argument essentially says that McDonalds is a joint employer because they led the employees of this specific McDonalds to reasonably believe they were their employer through their own act or neglect.

The McDonalds in question was owned by a Hayne’s family. However, the employees all testified that they believed that both they and the Haynes family were ultimately McDonalds employees.  They were required to wear McDonalds uniforms and greeted guests by welcoming them to McDonalds.  All the documents they received read McDonalds and they had to follow “McDonalds Store Policies.”  Most importantly, nobody ever actually told them they didn’t work for McDonalds.  You can see how an employee might be confused.

The argument here is still a tenuous one. California law, applicable since the case is coming out of California, has ruled in a case involving Domino’s Pizza that uniforms don’t show agency by themselves—instead serving to protect the brand.  What’s more, while there is no actual case law saying ostensible agency can’t be used by employees themselves, it is almost always used in cases where an outside party reasonably believes that somebody is making representations within the scope of their agency with a company—making offers that the company they work for has given them authorization to make.

Ultimately, the case will come down to whether a jury believes it was reasonable for the employees to believe they were ultimately working for McDonalds. If they had reason to think that, McDonalds is on the hook as a joint employer.

What Could These Cases Mean?

If a jury decides that Mickey D’s is a joint employer, however unlikely, it could totally change how businesses that franchise out their business model—from 7-Eleven to Dunkin’ Donuts—function. The legal premise would not only open a franchisor up to liability as an employer, it would also open the door to nationwide unionization of that franchise’s employees and all costs that could come along with such a union. At a minimum, these businesses will have to require clear disclosure of exactly who any given worker is employed by.

It took two years to get to the point where this case was given the go ahead to eventually see a jury. It’s likely that it will be many more years before this case sees a final resolution.  With such huge potential repercussions there is no question that McDonalds will take this case all the way to the Supreme Court.  This case, and the many other cases like it, have the potential to change the entire business landscape of the United States.  However, we’re definitely going to have to wait a long while to see if that will be the case.

What Employees Ought to Know About Dreadlocks in the Workplace

On September 16, 2016, the Eleventh Circuit Court of Appeals held that prohibiting an employee from wearing his or her hair in dreadlocks is not racial discrimination.  Historically, courts have found in favor of employers on this issue. The Eleventh Circuit’s decision was soundly based on prior case interpretation, but sparked the debate as to whether race discrimination laws should protect cultural characteristics.

Equal Employment Opportunity Commission v. Catastrophe Management Solutions

The suit arose when Catastrophe Management Solutions (CMS) rescinded a black women’s job offer because she refused to cut off her dreadlocks. In 2010, Chastity Jones was hired by CMS as a customer service representative. CMS’ human resources manager Chastity Jones later informed Ms. Jones that CMS would not hire her “with the dreadlocks,” because “they tend to get messy.” CMS had a policy stating that “hairstyle[s] should reflect a business/professional image.” Ms. Jones refused to cut off her dreadlocks and her job offer was rescinded.

The Equal Employment Opportunity Commission (EEOC) brought suit on behalf of Ms. Jones in federal district court alleging unlawful race discrimination. The district court dismissed the claim and the EEOC appealed to the Eleventh Circuit.

Title VII of the Civil Rights Act

In the district court, the EEOC alleged race discrimination under sections 2000e-2(a)(1) and 2000e-2(m) of Title VII of the Civil Rights Act.  Section 2000e-2(a)(1) and section 2000e-2(m) provide two separate causes of action for employment discrimination based on race, color, religion, sex and national origin.

  • Section 2000e-2(a)(1) (Disparate Treatment): Section 2000e-2(a)(1) states that it is “unlawful [for employers] to fail or refuse to hire or to discharge any individual … because of such individual’s race, color, religion, sex or national origin.” Employees must prove the employer intentionally discriminated against the employee because of an immutable characteristic.
  • Section 2000e-2(k)(1) (Disparate Impact): Section 2000e-2(k)(1) does not require proof of an employer’s discriminatory intent. Instead, the employee must prove that an employment practice has an adverse impact on a protected group.

On appeal, EEOC argued disparate treatment only under section 2000e-2(a)(1). EEOC argued that prohibiting dreadlocks was racial discrimination, “because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent” and that “race encompasses cultural characteristics related to race or ethnicity.” The appellate court disagreed and held that the EEOC failed to prove intentional discrimination as required by the statute.

Was the Eleventh Circuit’s Decision Correct?

The decision appears consistent with standards established by prior court rulings that hairstyles are not immutable characteristics. The Eleventh Circuit distinguished court decisions protecting immutable characteristics from unprotected mutable characteristics. In Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., the Seventh Circuit held against an employer for denying a promotion because the plaintiff “wore her hair in a natural Afro.”

Whereas, in Rogers v. Am. Airlines, Inc., the District Court for the Southern District of New York upheld an employment policy banning braided hairstyles because braids are a mutable characteristic. The Eleventh Circuit stated that “as far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race.”

Although the Eleventh Circuit was reluctant to include cultural characteristics within the definition of race, the decision raised the debate over whether definitions should be expanded. Given the complexity of race in American society, the Eleventh Circuit stated that issues regarding race definitions in Title VII should be “resolve through the democratic process.” The Eleventh Circuit even commended Ms. Jones on her “intensely personal decision and all it entails.” Nevertheless, the court stated that it is merely tasked with interpreting Title VII, “not with grading competing doctoral theses in anthropology or sociology.”

In the diverse fabric of the United States, perhaps legal definitions of race should be expanded. The debate as to whether cultural characteristics should be accommodated in Title VII continues, but the Eleventh Circuit made clear that the fight should be taken to the legislature, not the courts.

Obesity Under the Americans With Disabilities Act

The U.S. has the dubious honor of being the on again off again world leader in obesity throughout the 21st century.  Mexico has only recently knocked us off our top spot. Obesity has grown from 13% of people in 1962 to 19.4% in 2003 to 35.7% in 2010.  The most recent figures show a slight decrease in obesity: only 34.9%, or 78.6 million U.S. adults, are obese.

Obesity-related illnesses have led to between 100,000 and 400,000 deaths per year in the U.S., depending on the statistics you read. Approximately $147B is spent on medical expenses for obesity-related diseases every year in the US—exceeding even the health care costs associated with smoking.

Obesity is clearly a serious health epidemic. However, it is a particularly divisive one.  While countless people struggle with obesity due to an underlying medical issue, it can also be caused by lifestyle and diet choices.  These diet choices can also be essentially forced on a person through food deserts, areas with little access to fresh food, limiting the availability and affordability of healthier food options.  This dichotomy has left the courts struggling to agree on an approach to obesity under the Americans With Disabilities Act (ADA)—the act which provides federal protection against discrimination based on a disability. Is obesity a disability?  How do we approach providing legal protection to people based on something that could be the product of potentially changeable behaviors?

Defining Obesity

In order to discuss obesity, we’ll first need to define exactly what it is. The American Medical Association (AMA)  has classified obesity and morbid obesity as diseases.  The AMA defines a disease as something which incorporates 1) an impairment of the normal functioning of some aspect of the body; 2) characteristic signs or symptoms; and 3) harm or morbidity.  While this isn’t a legally binding holding, it is persuasive and underscores how dangerous widespread obesity is as an epidemic. Obesity

Obesity is distinct from being overweight. While overweight is defined as simply being over a weight that is set for your height and bone structure, obesity requires having a body mass index (a comparison of your height to your weight) greater than 30.  To put that in context, the average healthy person has a BMI of 18.5-25.  Morbid obesity is defined as either having a body mass index of 40 or more, being greater than 100 pounds over the average weight for your height, or a body mass index of 35 or higher coupled with serious obesity-related medical complications.

A Changing Approach to Obesity Over Time

Up until 2008, the ADA did not cover obesity unless there was a proven underlying medical cause.  Some courts considered morbid obesity as a disability regardless of cause, but obesity without an associated medical condition basically never got the nod.  However, new amendments to the ADA in 2008 under the particularly hard to say ADAAA have changed the analysis of obesity by requiring that the term “disability” be provided a broader reading by the courts.

The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The amendments also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

These changes have made it much more likely that obesity, regardless of cause, is a protected disability under the ADA. The fact that mitigating measures that could be taken are not considered, coupled with the fact that obesity likely substantially limits many of the enumerated major life activities.  What’s more, a discrimination claim under the ADA now only requires a showing that a person’s been subject to adverse employment action (eg. fired or refused a promotion) because their employer perceives that they have a physical or mental impairment—regardless of whether they have an actual disability covered by the ADA or whether their impairment actually limits a major life activity. However, this type of discrimination can be awfully hard to prove without a smoking gun email or letter as it mostly concerns the mental state of an employer.

The Equal Employment Opportunity Commission (EEOC) certainly has decided that the changes mean that obesity is a disability, regardless of cause. After the ADAAA, the EEOC stated that, based on their guidelines, all obesity and morbid obesity are considered disabilities which can be subject to disability discrimination.

Since the changes, case law has been relatively sparse on the issue. However, recent cases are mixed in their approach.  A number of rulings since the ADAAA, including decisions as recent as 2010, 2012 and 2014 have held that obesity can be a disability, regardless of voluntariness. This being said, earlier this very year the 8th Circuit Appeals Court held that all obesity—including morbid obesity—can only be considered a disability if there is an underlying medical issue.

While some courts still seem reticent towards broad recognition of obesity as a disability, arguing the impracticality of declaring a third of the population disabled and that the actual disability of obesity is the underlying medical cause, the trend seems to be towards recognizing all obesity as a disability under the ADA. At the very least, it has reached the point where it would behoove employers to take steps to ensure they make reasonable accommodations—any accommodation that would not cause undue burden to the employer—for their obese employees.