Archive for the 'Lawyers' 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 Drumgoole is not alone; more than 50 people have been fired or had employment offers rescinded by religious institutions for similar reasons since 2010.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.

Massachusetts Awards Parental Rights and Paves the Way for Unmarried Same-Sex Partners

One more giant step towards equal rights for same-sex couples as Massachusetts Supreme Judicial Court just ruled that unmarried same-sex couples are entitled to the same parental rights as heterosexual couples.  Regardless of gender, if you’re raising a child together, why shouldn’t you have the same parental rights as every other parent?

The case stems from a same-sex couple, Karen Partanen and Julie Gallagher, who were in a committed relationship and raising two children.  The couple used in vitro fertilization in order for Gallagher to give birth. The couple publicly held themselves out as the parents of the two children, as well as jointly raised the children up until the couple’s separation.  After the separation, since she isn’t the biological mother of the children, Partanen sought to establish parentage in order to obtain legal rights—like visitation and shared custody.

The Age-Old Tradition of 1 Man and 1 Woman as Parents

Massachusetts’ statute only allows a man to be presumed the father of a child born out of wedlock if the man takes the child (jointly with the mother) into their home and openly holds that child out as his own.  Since the statute obviously presumes parentage from the biological mother, Partanen was left with no parental claim simply because she’s of the same sex as the biological mother.   Paid Family Leave

As a result, a probate judge dismissed Partanen’s complaint.  This meant, even though Partanen had been raising these children since each of their births as her own, she couldn’t claim parentage and gain any parental or custody rights.  Partanen, understandably, appealed the decision and the Massachusetts Supreme Court took notice.

Can a person establish themselves as a presumptive parent in the absence of a biological relationship with a child?  This was the question before the court.  Most of the facts of the case were undisputed, that both partners played an important role in raising the children, which no doubt effected the Court’s decision.

If You’re 100% Involved, You’re a Parent

The couple was in a committed relationship, moved out of state together, bought a home together, and ultimately decided to start a family together. It was undisputed that the couple intended to both be the parents of any children that resulted out of the relationship.  Even though unsuccessful, Partanen was  the first partner to undergo in vitro fertilization.  It was only after that point that Gallagher went through the same treatment and ultimately ended up giving birth on two separate occasions.

Although Partanen never adopted the children, she was fully committed and 100% present in their upbringing.  The couple did all the normal day-to-day activities of raising children equally, including making important decisions about the children’s’ upbringing.

The Court found that although the statute spoke in specific gender terms, the same concept could be interpreted in a gender-neutral manner.  This meant that because Partanen brought the children into her home and held them out as her own. It doesn’t matter that she is not a man as the plain language of the statute reads.

To push the point home further, the state had already established that a man could establish paternity for a variety of reasons other than biology.  More specifically, the Court argued that the purpose of the statute, which was clearly defined, was to provide all “children born to parents who are not married to each other…the same rights and protections of the laws as all other children.”

Seems pretty simple, right?

Many Will Easily Follow in Massachusetts’ Footsteps, While Others Will Fight Against It

With all the positive decisions that have been made in favor of same-sex couples lately, there’s been battles to halt the progress in its tracks.  Just this month, an Alabama Supreme Court Justice was removed from the bench for issuing an order preventing magistrate judges of that state from issuing marriage licenses to same-sex couples, despite the federal decision in Obergefell.  In North Carolina, two different magistrate judges filed claims that their rights had been violated by administrative memos received that said they could be fired if they refused to perform same-sex marriages in accordance with the law.

There will undoubtedly be criticism of the decision to give same-sex partners parental rights, but the general consensus seems to be in favor of same-sex couples and it only seems like the next logical step after Obergefell to give same-sex couples the same parental rights as heterosexual couples.

What People Ought to Know About Louisiana’s New Marriage Law

Many foreign-born people have been denied marriage licenses in Louisiana after the state passed restrictions on marriage based on immigration. Proponents of this bill claim it deters marriage fraud by preventing illegal immigrants, including terrorists, from getting married. But, this bill has also prevented many legal immigrants from obtaining marriage licenses, and has mostly impacted Louisiana’s Laotian and Vietnamese refugee communities.

House Bill No. 836

The bill introduces new requirements for a Louisiana marriage license, including requiring a birth certificate. Birth certificate requirements differ for U.S.-born persons and foreign-born persons. A U.S.-born person may obtain a judge’s waiver if unable to provide a birth certificate. But, this waiver exception does not apply to people born outside the U.S., even if he or she can produce an unexpired visa or proof of citizenship.  In short, if a foreign-born person cannot produce a birth certificate, then he or she cannot get married in Louisiana.

The Story of Marilyn Cheng and Out Xanamane

Marilyn Cheung and Out Xanamane’s marriage license struggles highlight the absurdity of this bill. This Louisianan couple, like many in Louisiana’s Laotian community, had a traditional Buddhist ceremony in 1997, but never obtained a formal marriage license mistakenly believing they had a common law marriage. The couple learned they were not legally married when Mr. Xanamane discovered he had liver cancer and was not covered by Ms. Cheung’s insurance. Although the couple have lived as husband and wife for nearly 20 years and have four children together, Louisiana does not recognize common law marriages. Marriage

Subsequently, the couple went to a Louisiana courthouse to obtain a formal marriage license. Even though Mr. Xanamane brought his green card, refugee documents and driver’s license, they were turned away because Mr. Xanamane did not have a birth certificate. Mr. Xanamane has legally resided in the U.S. since 1986, but he was born in Laotian village in 1975 when the country fell to communism. His family fled the country and he never received a birth certificate. Thus, despite Mr. Xanamane’s liver condition, the couple drove fourteen hours round -trip to Alabama where the court accepted Mr. Xanamane’s immigration documents and issued them a marriage license.

Ms. Cheung and Mr. Xanamane are not the only couple enduring hardships under this new law. Since the law was enacted, about six to eight couples every month have been denied marriage licenses in Orleans Parish alone.

Is the Bill Xenophobic or a Necessary Protection of American Sovereignty?

Proponents claim this legislation prevents illegal immigrants, and possibly terrorists, from obtaining citizenship through marriage. But, the birth certificate requirement place unnecessary burdens on legal immigrants, particularly on Louisiana’s Laotian and Vietnamese refugee communities.

Many foreign-born people legally reside in the U.S. without birth certificates. Simply requiring valid immigration paperwork, like Alabama, would be equally effective in preventing illegal immigrants from obtaining marriage licenses. Moreover, requiring birth certificates unlikely deters terrorists legally in the U.S. from marriage, since many terrorists come from countries, including the U.S., that do issue birth certificates.

While the bill remains ineffective in deterring terrorists from marriage, it does have a disproportionate impact on Louisiana’s Vietnamese and Laotian refugee communities. In the 1970s and 1980s, many refugees from Vietnam and Laos went to Louisiana to seek asylum from war and communism. Many of these former refugees have since obtained green cards or U.S. citizenship, but do not have birth certificates. Refugees and other immigrants fleeing violent-life threatening situations, were either never issued birth certificates or were unable to bring one. Moreover, refugees tend to come from countries with failed governments, and thus, it would be impossible to obtain a birth certificate, even if one was originally issued.

Since the birth certificate requirement is unnecessary to achieve its purpose in preventing illegal immigrants from marriage, we can only conclude it was enacted to place hardships on the Vietnamese and Laotian refugee communities in Louisiana. But, if we give Louisiana’s legislature the benefit of the doubt, the bill is at best a poorly thought-out law that needlessly inconveniences foreign-born people living in United States legally.

Defining Sexual Assault For Politicians Who Don’t Get It

I’ve got to use some Tic Tacs, just in case I start kissing her…You know I’m automatically attracted to beautiful—I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star, they let you do it. You can do anything. Grab them by the p—y. You can do anything.

Most have heard, or at least read, Mr. Trump’s recorded statements on his behavior around women. Trump himself has described the comment as locker room talk.  However, in the wake of the comments, a number of women have come forward to accuse Trump of sexual assault.  For instance, a woman named Jessica Leeds has accused Trump of fondling her on an airplane.  Trump has responded to these accusations by, among other things, arguing that the women who have come forward are not attractive enough for him to assault.

For obvious reasons, Trump’s words have drawn broad criticism from politicians on both sides of the aisle. Many prominent Republicans, such as John McCain, have even withdrawn their support for Trump’s candidacy for president.

However, this withdrawal of support has been halfhearted to say the least. Many Republican politicians who denounced Trump—such as South Dakota Senator John Thune, New Jersey Representative Scott Garrett, and Alabama Representative Bradley Byrne—have gone on to make it clear that their denunciation of his statements is still not enough to stop them from casting their vote in his favor.  Rape

Some politicians have taken a different approach to the comments. When asked in an interview, Alabama Senator Jeff Sessions stated that he wouldn’t characterize what Trump was describing as sexual assault.  In a follow up, he was asked “So if you grab a woman by the genitals, that’s not sexual assault?”  Senator Sessions responded “I don’t know.  It’s not clear that he—how that would occur.”

Jeff Sessions has since issued a statement that he has been misrepresented based on this interview and his response was based on confusion as to Trump’s words and the question posed by the reporters. With this in mind, it seems worth clearing up confusion on what is sexual assault under the law.  Just as a favor to the good Senator.

Understanding the Crimes and Causes of Action of Sexual Assault

Sexual assault is when any sexual activity occurs without clear consent from both parties. While the exact elements of the crime vary from state to state, it is a crime in every state. Sexual assault laws also forbid sexual activity with a person who is unable to consent such as people who are mentally ill, under the age of 18, or intoxicated are considered unable to consent. There are more specific crimes, also with elements that can vary quite a bit from state to state, that fall under the umbrella of sexual assault, such as: rape, molestation, forced sodomy, and incest.

Sexual assault does not require, but may include, force or threat of force. Instead, they hinge on the sexual touching being unwanted and offensive.  This can cover a wide range of types of victimization.  As an example, where a person—without any comment, warning or consent—were to kiss a woman or, “grab them by the p—y” that would unquestionably be criminal sexual assault.

The most grotesque and savage or crimes falling under the umbrella of sexual assault is, of course, rape. The exact elements of rape vary more drastically from state to state than any other crime of sexual assault, with some states requiring penetration by male genitalia, while others have a broader approach to include other unwanted sex acts.  Some states do not recognize rape committed by a spouse, while most do not make the distinction. While these are the most common distinctions, there are many other variations depending on the state.

At its core, rape is a forced sex act achieved by force or threat of force. This can include psychological coercion as well as physical force.  Depending on the rape statute and the exact facts, grabbing a woman “by the p—y” could very well rise to the level of rape.

Both sexual assault and rape give rise to civil charges as well as criminal charges if the victim wishes to bring such a case against the person who attacked them.

Sexual Assault in the U.S.

About 20 million out of 112 million women in the U.S., nearly one in five, have been raped during their lifetime. Nearly 300,000 people aged 12 and older are victims of rape or sexual assault in the U.S. during any given year. Even with numbers this high, authorities still estimate that only approximately a third of all sexual assault cases are reported to the police.

Despite the seriousness of this issue, there seems to have been substantial confusion amongst politicians as to what exactly represents sexual assault or rape. It has not been so long since the infamous “legitimate rape” comments from Former Missouri Representative Todd Akin.  In the recent debates, Mr. Trump took quite a bit of pressing on his comments before finally stating that he never acted on his words—dancing around the question of whether he understood that his recorded remarks described sexual assault.

Sexual assault is too serious an issue to trivialize its promotion as “locker room talk” and too dangerous to let those with the most power over passing litigation to misunderstand. It is crucial that our leaders recognize and condemn these heinous acts with more than just empty words.  Our leaders need to understand the problem and be part of the solution.

Judge Dismisses Personal Injury Case Against Gun Manufacturer

A federal court has dismissed a personal injury lawsuit directed at the gun manufacturer Smith & Wesson. The plaintiff was handling a gun when it accidentally went off, amputating his finger. The plaintiff’s claim is based on the idea that the gun had a mechanical defect and the powerhouse gun manufacturer should be held responsible.

Product Liability

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of the consumer. The vast majority of product liability cases are Gun Storedetermined at the state level. Product liability claims can be sought out under the theories of negligence, strict liability, or breach of warranty. Under negligence, the plaintiff would have to show that the manufacturer, in this case, Smith and Wesson:

  1. had a duty of care owed to the plaintiff,
  2. there was a breach of this duty, and
  3. this breach actually caused the injury.

In plain English, Smith and Wesson obviously have a duty to ensure that their firearms do not have mechanical defects. The difficult part here is being able to show that when plaintiff was handling the gun, it was a defect rather than mismanagement by the plaintiff that actually caused the injury. The Court ultimately held that the injury was not caused by a defect. Smith & Wesson are not liable. Strict liability and breach of warranty would probably not apply here either.

The Benefit of the Doubt

The point of all this is that it is quite difficult to show that a manufacturer of a product can be held liable. There are some circumstances where benefit will be given to plaintiff. Under a doctrine known as res ipsa loquitur, the burden of proof will shift to the defendant to show that they are not liable. It makes the path easier for the plaintiff. However, this doctrine is rarely invoked. For it to come into effect, the injury must have occurred because of someone’s negligence.

At the end of the day, it is quite difficult to pin the blame on the manufacturer because they are so far removed from the actual incident — an actual defect must be present before they are held accountable. Even if the plaintiff is somehow successful on his claim, Smith & Wesson could invoke comparative or contributory negligence as a defense. Based on the facts presented, the plaintiff was somewhat careless with the handling of the gun. This is not to say that there was not a defect but that there very well could have been mishandling of the firearm.

For all intents and purposes, unless the legal framework is reworked to give more deference to the plaintiff, manufacturers will win the majority of product liability cases. As mentioned earlier,  there are so many chains of distribution involved in the product that it will be quite difficult to reach the manufacturer who has no involvement in the actual cause of action.