Sixth Circuit Affirms Dismissal of All But Two Claims of Religious Discrimination Based on COVID-19 Vaccine Mandate

Last month, the Sixth Circuit affirmed the dismissal of all but two claims filed by employees who claimed that the hospital employer’s initial blanket denial of their religious objections to the COVID-19 vaccine constituted religious discrimination in violation of Title VII and the Ohio Civil Rights Act.   Saval v. MetroHealth System, No. 23-3672 (6^th Cir. 3/20/24).   The employer had reversed its decision and ultimately granted all of the religious exemption requests.  Thus, the employees who remained employed never suffered any concrete injury to justify litigation from “conclusory” allegations of the emotional distress caused over 36 days while they were forced choose between their jobs and their religious convictions or from the employer’s ability to reverse course again in the future.  Several of the employees had resigned before the employer denied the exemption requests, and thus, also lacked any injury from the employer’s initial denial decision.  However, two employees could sue for disparate treatment and failure to accommodate when they resigned more than 18 days after their requests were denied even though the employer had granted some medical exemption requests. 

According to the Court’s opinion, in August 2021, the hospital announced that all employees needed to obtain the vaccine by the end of October unless they requested a valid medical or religious exemption.  The employer received hundreds of exemption requests and stayed the compliance deadline for those employees while it worked through each of the requests.  While the employer granted some medical exemption requests, it denied all of the religious exemption requests in February on the grounds that the employees could not perform their jobs remotely, no reasonable accommodation was available and it would be an undue hardship to the employer.   It gave the employees 45 days to comply, but 36 days later, abruptly changed course on March 15 and granted all of the exemption requests.   Nine employees resigned before that 36^th day and filed suit.  They were joined by 36 other employees who remained employed by the hospital.  The trial court granted the employer’s motion to dismiss for lack of standing (i.e., were still employed and suffered no injury from the temporary denial) and failure to state a claim.  The Court affirmed the dismissal for all but the first two plaintiffs who had resigned after their exemptions had been denied but before the hospital reversed its decision. 

The Court affirmed dismissal for lack of standing because 36 employees did not suffer any injury from the temporary denial of the exemption requests.  It rejected their claims of mental anguish from having to chose between their jobs and their religious beliefs and threat that the employer could reverse its decision again in the future.  The Court found their allegations of past distress to be too conclusory to be actionable and “fears about a future denial were ‘contingent on future events that may never come to pass, which is a much ‘too speculative’ state of affairs ‘to satisfy the well-established requirement that threatened injury must be ‘certainly impending.’”

The Court analyzed the allegations of the first nine employees to determine whether they stated valid claims for constructive discharge -- i.e., whether they were forced to resign.  Six of these nine could not establish constructive discharge because they had resigned before their exemption requests had been denied in February.  An additional employee’s claim was denied because she had never filed a formal exemption request.

The Court’s majority agreed that the first two plaintiffs stated valid claims for constructive discharge because they requested exemptions, those exemptions were denied, they were denied the right to appeal and they were given a date to comply or be fired.   The trial court had determined that they resigned prematurely (albeit more than halfway through the 45 day period), but the Court disagreed.

The Court also reversed the trial court that these plaintiffs failed to state a claim for religious discrimination: “Plaintiffs 1 and 2 allege [the employer] failed to accommodate their religious beliefs by blanket-denying their vaccine exemption requests. They also assert that [it] treated them differently because of their religion.”  The first two employees “just need to plausibly allege that they were denied a religious accommodation and treated differently because of their religion.”

Further, these two employees alleged a plausible claim of failure to accommodate.  “The heart of the failure-to-accommodate claim is that an employer discharges (or otherwise discriminates against) an employee for failing a job-related requirement instead of abiding by its “statutory obligation to make reasonable accommodation for the religious observances” of its employees.”

The Court also found that these two employees plausibly plead a disparate treatment case.  They “alleged that [the employer] categorically denied all religious exemption requests while granting some nonreligious exemption requests—that is, that [it] treated them differently with respect to a condition of employment because of their religion.”

In concurring, one judge questioned whether this was really a constructive discharge case when the employees had been told when they would be terminated and could have sought a preliminary injunction to prevent an unlawful job termination. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court: Motive to Discriminate Can Be Based on Mere Suspicion and Does Not Require Actual Knowledge

This morning a divided Supreme Court reversed an employer’s summary judgment and ruled that religious bias can be a motivating factor in an illegal discriminatory hiring decision even if the employer only suspected -- and did not actually know -- whether the applicant was engaging in a religious practice.  EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86 (U.S. 6-1-15). “Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship” even if the employer only suspected that the applicant engaged in a religious practice and never specially requested an accommodation.  Unlike the ADA and other statutes, there is no statutory “actual knowledge” requirement in Title VII.  “[A]n applicant need only show that his need for an accommoda­tion was a motivating factor in the employer’s decision.”  Therefore, the employer’s summary judgment was reversed and the EEOC’s prior summary judgment was reinstated.

According to the Court, the applicant was qualified to be hired for the position, but the assistant store manager shared concerns with the District Manager about whether the applicant’s headscarf would violate the company’s policy against wearing “caps.”  She assumed that the applicant wore the scarf because of her religious faith.  The District Manager said the scarf would violate the Company’s policy and directed the assistant manager not to hire the applicant.  The applicant was never informed about the policy and never requested to be accommodated.   The EEOC then filed suit, prevailed on summary judgment and obtained $20,000 on her behalf.  On appeal, the Tenth Circuit Court of Appeals reversed and ruled in favor of the employer on summary judgment on the grounds that the applicant never requested an accommodation and the employer lacked actual knowledge that she wore the scarf as a religious practice.

Under Title VII, religion “is defined to ’includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demon­strates that he is unable to reasonably accommodate to’ a ‘religious observance or practice without undue hardship on the conduct of the employer’s business.’”  Unlike the ADA, which requires accommodation and prohibits discrimination against only known disabilities, Title VII prohibits only unlawful motives “regardless of the state of the actor’s knowledge.”  The Court declined to read words in the statute that were put there by Congress. “We construe Title VII’s silence as exactly that: silence.”

Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

                . . . An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospec­tive accommodation is a motivating factor in his decision, the employer violates Title VII.

The Court also rejected any argument that a neutral employment practice could be used to support a disparate treatment claim:

Nor does the statute limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Abercrom­bie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no­ headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub­sequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.

Finally, the Court addressed the obvious question -- that it is difficult to have motive unless there is some level prior knowledge -- and refused to address whether liability would attach without some knowledge or suspicion:

While a knowledge requirement cannot be added to the motive re­quirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument. It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Dismisses Title VII and §1983 Claims Brought by Volunteer Nuns

On Friday, the Sixth Circuit Court of Appeals dismissed for lack of subject matter jurisdiction Title VII religious discrimination and retaliation claims brought by two nuns who volunteered with the Red Cross and the Ross County Emergency Management Agency.   Sister Michael Marie v. American Red Cross, No. 13-4052 (6^th Cir. 11-14-14).  Similar constitutional and first amendment claims against the agency were likewise dismissed. The plaintiffs both volunteered with the Red Cross and county agency.  They alleged that the Red Cross denied them promotions to volunteer positions with higher authority and responsibility on account of their religion and terminated them in retaliation for complaining.  They allege that they were later terminated by the county agency for similar reasons and that the Red Cross Executive Director served on the Board of the agency.  They filed with the OCRC and EEOC Charges of Discrimination, which were dismissed for lack of jurisdiction since the nuns volunteered with the respondents and were not employees.  Neither plaintiff received or expected any monetary compensation for their services and did not receive any employment benefits, but were eligible for workers compensation, life insurance and travel reimbursement.  They filed suit in federal court, which dismissed the claims and was affirmed on appeal.

The Court of Appeals determined that coverage under Title VII is limited to common law employees, which depends on a number of factors, such as:

[1] the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are [2] the skill required; [3] the source of the instrumentalities and tools; [4] the location of the work; [5] the duration of the relationship between the parties; [6] whether the hiring party has the right to assign additional projects to the hired party; [7] the extent of the hired party’s discretion over when and how long to work; [8] the method of payment; [9] the hired party’s role in hiring and paying assistants; [10] whether the work is part of the regular business of the hiring party; [11] whether the hiring party is in business; [12] the provision of employee benefits; [13] and the tax treatment of the hired party.

While this test is most frequently utilized to determine whether an individual is an employee or independent contractor, it can also be applied to determine whether a volunteer is a covered employee.  Unlike other circuits, the Sixth Circuit considers compensation to be just one of the relevant factors, instead of categorically more important.  The Court rejected the plaintiff’s argument that it should be of lesser importance. After noting that the plaintiffs received no compensation or employment benefits, it also noted that they largely controlled when they volunteered and how they performed.  The plaintiffs were in no way economically dependent on the defendants.  The only factors in their favor was that the plaintiffs had worked for the defendants for several years and performed services in the defendants’ core business. Nonetheless, it was debatable whether the nature of their services was like that typically performed by employees or independent contractors.

The Court also found that the plaintiffs did not show that they were retaliated against on the basis of their religious beliefs.  The agency’s executive director had been initially friendly with them, which meant that another factor must have arisen when his behavior allegedly changed years later.  The Court also concluded that they could not show denial of equal protection because they failed to identify any other volunteers who were treated differently in that they were the only two volunteers who criticized the agency’s management.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

A Couple of Recent Trial Court Decisions Shows that Truth Can Be Stranger Than Fiction

There have been a few notable trial court decisions within the last month that may interest you.  One deals with a $500K+ age discrimination award and the other concerns vegans and flu shots.   I usually do not report on these  decisions because they sometimes change on appeal and are not binding on other trial courts.  However, they can be indicative of legal issues invading the workplace and demonstrate why it is often best to avoid litigation if possible. 

The verdict receiving the most local media buzz is the $500K+ age discrimination award in Warden v. Ohio Department of Natural Resources.   The Ohio Court of Claims ruled in favor of a retired employee who was rejected for his application to be rehired into his old job (for which he was undeniably the most qualified applicant) because the ODNR applied a new and unpublicized policy during the last recession of not rehiring retirees into their former jobs while they were also collecting a pension – a practice referred to as “double dipping.”  A review of the court docket shows that this case is even more interesting (to employment attorneys at least) than the significant monetary judgment reflects or the local media has reported.

As explained in the plaintiff’s summary judgment motion, and the Court’s liability opinion, the plaintiff accepted a two-year buy out and retired in 2006. He was re-hired as an independent contractor to essentially perform his old job for a series of short-term contracts.  When a job similar to his old job was posted, he was encouraged to apply and did so.  His application made it through the screening process and he was interviewed.  The plaintiff received the highest interview scores and several managers/directors went to bat for him to be hired (both before and during the litigation).  At no time during the process was he told about a policy to not hire retirees.  (There was also a factual dispute as to whether the interviewers had been informed of the policy).  The HR Director refused to hire him because he was a retiree.  Therefore, the job went to the next most qualified applicant who was 15 years younger.  The plaintiff’s complaint alleged that his age was a motivating factor in the decision.

The ODNR explained that it had enacted the policy because “double dipping creates a distrust with the public.”  Re-employment of retirees was to be allowed only for short-term contracts where the job required specialized knowledge or experience and a number of factors were to be considered in evaluating exceptions. (The Court only noted one exception which had been made).  While the policy was memorialized in a memorandum by one HR Director, there was no written directive distributed to division heads or HR staff.  The court found that the policy -- against re-hiring retirees collecting a pension -- did not constitute direct evidence of discrimination, but rather, was a legitimate and non-discriminatory reason to reject the plaintiff’s application.  Moreover, the Court also concluded that the plaintiff failed to show that the ODNR’s explanation was pretextual for age discrimination.   Accordingly, the Court rejected the plaintiff’s disparate treatment theory of recovery.

Shockingly, the Court then concluded that the plaintiff should prevail on a disparate impact theory of liability even though this theory was not plead in the Complaint or  even mentioned in the plaintiff’s post-trial brief and no statistical evidence had been presented.  (In fact, the plaintiff’s post-trial brief even cites in its first footnote  to another Court of Claims summary judgment opinion from three years ago which had saved a similar policy from legal challenge).  The Court concluded that any policy which precludes employment on the basis of retirement under Ohio Revised Code § 145.32 necessarily is based on the fact that the individual is over the age of 40 (because no one is eligible to retire below the age of 55 or 30 years of service).  It then disputed the whole basis for public condemnation of double-dipping on the premise that it is legal and saves money because the state contributes less to the pension accrual of an already-retired employee, etc.   Therefore, the  Court found that the policy did not constitute a reasonable factor other than age which could justify the non-hire of the plaintiff.

The defendant employer argued in its Motion for Reconsideration that the evidence showed that the plaintiff was the only individual adversely affected by the ODNR policy.  (It even pointed out that the only time that the plaintiff’s counsel ever mentioned the words “disparate impact,” it was done by mistake and he quickly corrected himself).   Nonetheless, the Court ruled that the plaintiff could prevail on any legal theory supported by the facts and that statistical evidence was not necessary in a disparate impact claim.

Instead of ordering the ODNR to hire the plaintiff, the Court ordered the payment of back and front pay instead.  The plaintiff had indicated that he had only intended to work another five years and the new employee had been working in the job for three years at this point.   This judgment amounted to more than $507K and included his $64K annual starting salary, presumed annual step increases, fringe benefits calculated to equal 34.5% of his salary, $17.3K for the increased tax liability from a lump sum payment, pension accrual, repayment of court costs (including the costs of litigating) and attorney fees of $53,545.   He was also awarded 3% judgment interest.

I expect this decision to be appealed.

Religious Discrimination/Vegans/Flu Shots.  In an opinion written by federal Judge Spiegel in Cincinnati, the Court refused to dismiss a complaint which alleged that a hospital employer violated the plaintiff’s rights under Title VII to exercise her vegan religion by firing her in 2010 for refusing to take a flu shot. (Until the last week, most flu shots could only be manufactured using eggs).   Chenzira v. Cincinnati Children’s Hospital Medical Center, No. 11-CV-917 (S.D. Oh. 12-27-12).  Complaints such as this can only be dismissed if there is no set of facts which could sustain the legal theory.  This is a difficult standard to meet, but many observers were still surprised because veganism is not usually considered to be a religion and a hospital ‘s undue hardship for such a religious accommodation seems to be obvious (although, here, the hospital allegedly used to accommodate the plaintiff in the past).  The result of the Court’s opinion is that the case will proceed with discovery, summary judgment motions and possibly trial if the parties do not first settle the case. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth and Third Circuits Address Employment Discrimination Against Gay and Lesbian Employees.

At the end of August, the federal Sixth and Third Circuit Courts of Appeal both addressed the same issue: whether gay and lesbian employees could pursue religion discrimination claims under Title VII against employers who discriminated against them on account of their sexual orientation. In both cases, the Courts refused to permit the employees to pursue religion discrimination claims under Title VII on the grounds that they were not being discriminated against because of their religious or other voluntary beliefs, but rather, because of who they were. However, in both cases, the Court found possible alternative theories of relief for the plaintiffs. In the Sixth Circuit, the Court found the plaintiffs could maintain a constitutional First Amendment claim against the non-profit employer on account of legislative appropriations to that specific agency. Pedreira v. Kentucky Baptists Homes for Children, Inc., No. 08-5583 (6th Cir. 8/31/09). In the Third Circuit, the court found the plaintiff could pursue a sex-stereotyping claim on the grounds that he was being discriminated against for not being a stereotypical macho, blue-collar man. Prowel v. Wise Business Forms, Inc., No. 07-3997 (3rd Cir. 8/28/09).

Title VII Claims

The Pedreira plaintiff was terminated from her position with the non-profit children’s home “because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.” After her termination, the employer announced a policy of refusing to employ any homosexuals. She brought a claim under the Kentucky Civil Rights Act, which was analyzed as a Title VII claim. The Court, however, found that she failed to state a claim for relief: “Pedreira does not allege that her sexual orientation is premised on her religious beliefs or lack thereof, nor does she state whether she accepts or rejects Baptist beliefs. While there may be factual situations in which an employer equates an employee’s sexuality with her religious beliefs or lack thereof, in this case, Pedreira has “failed to state a claim upon which relief could be granted.” See also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 762 (6th Cir. 2006) (Title VII does not encompass discrimination on account of sexual orientation). In short, the plaintiff did not allege that her sexual orientation was a voluntary decision akin to religious beliefs and practices. Another plaintiff brought a failure to hire claim on the grounds that she did not apply for a social worker opening because of the employer’s homophobic policy. The court surprisingly dismissed that claim on the grounds it was speculative (in that she never applied for a job) instead of on the grounds that such discrimination is not actionable under either Title VII or the KCRA. Thus, the possibility remains that the Sixth Circuit could recognize a case of sexual orientation discrimination under Title VII under a different factual situation.

The Prowell plaintiff was involuntarily laid off after he complained about workplace harassment on account of his sexual orientation. He filed suit, claiming that he was unlawfully discriminated against in violation of Title VII on account of his sex and religion. Like the Pedreira case, the Third Circuit dismissed the religion discrimination claim because his testimony showed that he was discriminated against on account of his sexual orientation, not his beliefs or the religious beliefs of others. Like the Sixth Circuit, the Third Circuit had previously determined that Title VII did not encompass discrimination on account of sexual orientation. Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.3d 257 (3d Cir.2001).


However, the Third Circuit found that the Prowell plaintiff could pursue a sex stereotyping claim to the same extent that a woman could. The plaintiff described himself as an “effeminate man” and claimed he did not fit in with his other male co-workers because he did not conform to gender stereotypes. Because the facts of the harassment showed that the plaintiff had been harassed about his non-macho mannerisms and lifestyle even before his sexual orientation became public knowledge, he could show that his discrimination was related to the fact that he did not conform to societal stereotypes about how a “real” man is supposed to act. Title VII has for some years now prohibited discrimination against women who did not fit societal stereotypes of “ladies.”

First Amendment Claims

In Pedreira, the plaintiffs also brought a taxpayer suit challenging state support of a non-profit with a religious mission on the grounds that it violated the Establishment Clause of the First Amendment. “In their amended complaint, they refer to the Kentucky statutes authorizing the funding of services such as KBHC. However, nowhere in the record before the district court did the plaintiffs explain what the nexus is between their suit and a federal legislative action. The district court found that the plaintiffs’ allegations were more akin to those in Hein, which raised a general Establishment Clause challenge to federal agencies’ use of federal money to promote the President’s faith-based initiatives.” In the end, the Court determined that the plaintiffs lacked standing as federal taxpayers, but not as state taxpayers.

“As with federal taxpayer standing, the plaintiffs must demonstrate “a good-faith pocketbook” injury to demonstrate state taxpayer standing . . . . The plaintiffs point to the alleged $100 million received by KBHC from Kentucky as the requisite “pocketbook” injury . . . . the Kentucky legislature also appropriated sums of money specifically to KBHC. 2005 Ky. Laws Ch. 173 (HB 267) (H)(10)(5), available at http://www.lrc.ky.gov/record/05RS/HB267.htm. Unlike in the federal taxpayer analysis,the plaintiffs have alleged a “concrete and particularized” injury.”

In addition, “the plaintiffs have sufficiently demonstrated a link between the challenged legislative actions and the alleged constitutional violations, namely that Kentucky’s statutory funding for neglected children in private childcare facilities knowingly and impermissibly funds a religious organization. As discussed above, the plaintiffs have pointed to Kentucky statutory authority, legislative citations acknowledging KBHC’s participation, and specific legislative appropriations to KBHC. Through these specifications, the plaintiffs have demonstrated a nexus between Kentucky and its allegedly impermissible funding of a pervasively sectarian institution.”

Insomniacs can read the full court decisions at http://www.ca6.uscourts.gov/opinions.pdf/09a0316p-06.pdf and http://www.ca3.uscourts.gov/opinarch/073997p.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit: Not Religious Discrimination to Require Religious Objector to Union Dues to Pay Full Dues to Charity Instead of Merely Agency Fee.

Today, a divided panel of the Sixth Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a former union member against the UAW. Reed v. UAW, No. 07-2505 (6th Cir. 5/7/09). According to the Court’s opinion, the plaintiff “claims that UAW, in violation of Title VII of the Civil Rights Act of 1964, failed to provide a reasonable accommodation for his religious objection to financially supporting the union.” The Court affirmed dismissal of this claims on the grounds that the plaintiff could not show an actionable employment action merely from the fact that religious objectors were required to make a charitable donation in any amount of the full union membership dues instead of the lesser amount of the agency fee charged to non-union members (which was 22% less than regular union member dues).

According to the Court’s opinion, the UAW constitution, “grants both members and non-member agency fee payers ‘the right to object to the expenditure of a portion of his/her dues money for activities or causes primarily political in nature’ and to receive a rebate for that portion. UAW and AM General also are parties to a letter agreement that allows any employee with a bona fide religious objection to joining or supporting a labor union to satisfy his union security obligation by making a payment equal to full membership dues to one of three charities mutually designated by UAW and AM General.” After the plaintiff resigned his union members based on religious objections (which was supported by a letter from his pastor), the union began deducting the agency fee from his pay (which was less than the amount of full union dues he had been paying). When the plaintiff objected to paying even the agency fee, the union responded that it would refund the agency fees deducted from this paycheck if he paid an amount equal to the amount of full union dues to an approved charity. The plaintiff did so and then filed a Charge and lawsuit objecting to being required to pay to the charity an amount equal to full union dues instead of just the lesser amount of the agency fee charged to non-members. The plaintiff claimed that being required to pay the charity an amount equal to the regular union dues instead of the lesser agency fee amount was not a reasonable accommodation of his religion.

The majority agreed with affirming the dismissal of the claim, but for different reasons. In the lead opinion, the judge found that there was not a material adverse employment action in that the plaintiff was not disciplined or discharged. The judge did not believe that the plaintiff could prove a prima facie case by complaining about a minor difference in pay deductions (i.e., the 22% difference between the agency fee charge non-members and the amount of union dues charged to full members and to religious objectors). The concurring opinion, on the other hand, found that the union’s action was a sufficient accommodation of the plaintiff’s religious beliefs.

Insomniacs can read the full opinion at http://www.ca6.uscourts.gov/opinions.pdf/09a0166p-06.pdf.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Chicago Dentist to Pay $462,500 in Consent Decree to Settle EEOC Harassment and Retaliation Lawsuit

Yesterday, the EEOC announced that a “Chicago dental practice will pay $462,500 to settle a class sexual and religious harassment and retaliation lawsuit” it filed in September 2007 in federal court which alleged that “James L. Orrington, D.M.D., Ltd. discriminated against 18 employees by subjecting them to sexual harassment, including sexual propositions, comments and touching; forcing them to engage in Scientology religious practices and learn about Scientology as conditions of their employment; and/or retaliating against employees who complained about the sexual or religious harassment.” EEOC et al. v. James L. Orrington D.M.D., Ltd., No. 07 C 5317. “The consent decree resolving the case was entered by the court [yesterday] morning.”

The EEOC also announced that “[i]n addition to requiring that Orrington pay monetary relief, the three-year consent decree resolving the case enjoins Orrington from engaging in sexual or religious discrimination and prohibits the firm from conditioning any terms or conditions of employment on complying with the religious teachings or practices of Scientology or attending seminars regarding Scientology. The consent decree also requires that Orrington contract with an outside representative to receive and investigate complaints of sexual discrimination and religious discrimination; adopt and distribute a policy against sexual harassment, religious discrimination and harassment, and retaliation; provide training to employees; submit periodic reports to the EEOC about any complaints of sexual harassment, religious discrimination or harassment, or retaliation; and post a notice at its facility regarding the outcome of this lawsuit.

Insomniacs can read the full press release at

EEOC Obtains $1.875M Consent Decree Against University of Phoenix for Favoring Mormon Employees.

On Monday, the EEOC announced that it obtained a consent decree from an Arizona federal court for $1,875,000 for 52 individuals on the grounds that managers at the University of Phoenix showed preferential treatment to Mormon employees. In its class action lawsuit, the EEOC alleged that the “University of Phoenix engaged in a widespread practice of discriminating against non-Mormon employees who worked as enrollment counselors in the University’s Online Division.” In particular, witnesses testified that “that managers in the Online Enrollment Department at the University of Phoenix discriminated against non-Mormon employees, and favored Mormon employees, in several ways, including: (1) providing the Mormon employees better leads on potential students; (2) disciplining non-Mormon employees for conduct for which Mormon employees were not disciplined; (3) promoting lesser-qualified or unqualified Mormon enrollment counselors to management positions while repeatedly denying such promotions to non-Mormon enrollment counselors; and (4) denying tuition waivers to non-Mormon employees for failing to meet registration goals, while granting the waivers to Mormon employees.”

In addition to the monetary relief, the consent decree required the employer to engage in other activities in the future, including: (i) Dissemination of a Zero Tolerance Policy to all employees in the University of Phoenix Online Enrollment Department, stating that the company has zero tolerance for religious discrimination and that any violation of the policy will result in termination; (ii) Training for managers and non-managers on the issue of religious discrimination; (iii) Creating a system to include in managers’ evaluations an assessment of their compliance with equal employment opportunity laws; and (iv) Hiring a Diversity Officer, and the staff necessary, at the University of Phoenix to monitor compliance with the terms of the consent decree.

Insomniacs can read the full EEOC press release at http://www.eeoc.gov/press/11-10-08.html.

EEOC Legal Victories Send Message to Unwary Employers

EEOC Wins Jury Verdict in Religious Discrimination Case Where Employees Were Denied a Requested Day Off to Attend a Church Convention.

On October 23, 2007, the EEOC announced a favorable jury verdict of $756,000 in a religious discrimination lawsuit brought in Arkansas federal court against AT&T Inc. on behalf of two male customer service technicians who were suspended and fired for attending a Jehovah’s Witnesses Convention. “The jury . . . awarded the two former employees, Jose Gonzalez and Glenn Owen (brothers-in-law), $296,000 in back pay and $460,000 in compensatory damages under Title VII of the 1964 Civil Rights Act. During the four-day trial, the jury heard evidence that both men had submitted written requests to their manager in January 2005 for one day of leave to attend a religious observance that was scheduled for Friday, July 15, to Sunday, July 17, 2005. Both men testified that they had sincerely held religious beliefs that required them to attend the convention each year. Both men had attended the convention every year throughout their employment with AT&T -- Gonzalez worked at the company for more than eight years and Owen was employed there for nearly six years.”

Title VII requires -- at 42 U.S.C. § 2000e(j) -- that an employer, short of "undue hardship," make "reasonable accommodations" to the religious needs of its employees. In particular, for purposes of Title VII’s prohibition against discrimination on the basis of religion: “The term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

Title VII’s “undue hardship” test, however, has been given a different meaning by the Supreme Court than the “undue hardship” test contained in the ADA. In Trans World Airlines v. Hardison, 432 U.S. 63 (1977), the Supreme Court held that an employer attempted to reasonably accommodate the religious objections of an employee to working on his Sabbath by permitting him to find a replacement and switch shifts. However, the Court held that the employer was not required to violate the seniority provisions of the collective bargaining agreement by giving the religious employee the preference of shift assignments over more senior employees because doing so would constitute an undue hardship.

“We agree that neither a collective bargaining contract nor a seniority system may be employed to violate the statute, but we do not believe that the duty to accommodate requires TWA to take steps inconsistent with the otherwise valid agreement. Collective bargaining, aimed at effecting workable and enforceable agreements between management and labor, lies at the core of our national labor policy, and seniority provisions are universally included in these contracts. . . . TWA would have had to adopt the latter in order to assure Hardison and others like him of getting the days off necessary for strict observance of their religion, but it could have done so only at the expense of others who had strong, but perhaps nonreligious, reasons for not working on weekends. There were no volunteers to relieve Hardison on Saturdays, and to give Hardison Saturdays off, TWA would have had to deprive another employee of his shift preference at least in part because he did not adhere to a religion that observed the Saturday Sabbath.”

The Supreme Court also rejected the argument that the religious employee could be given a four-day instead of a five-day shift because that would have left the employer short-handed one day each week: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship. Like abandonment of the seniority system, to require TWA to bear additional costs when no such costs are incurred to give other employees the days off that they want would involve unequal treatment of employees on the basis of their religion.”

The full press release is available at http://www.eeoc.gov/press/10-23-07.html.

EEOC Settles Racial Harassment Suit Involving Hangman’s Nooses

On October 25, 2007, the EEOC announced that it had settled a discrimination lawsuit for $290,000 and obtained “significant injunctive relief against Helmerich & Payne International Drilling Co. (H & P) on behalf of African American men who were subjected to a racially hostile work environment on an oil rig. H & P is an energy oriented company engaged in contract drilling primarily in the United States, South America, and Africa. The racial harassment in the case including hangman’s nooses displayed on Rig 108, derogatory racial language, and race-based name calling, all of which was directed at black employees. In addition to the nearly $300,000 in compensatory damages to be apportioned among the seven class members, the two-year consent decree (filed in Birmingham, Alabama) settling the case (EEOC v. Helmerich & Payne International Drilling Co., Case No. 3:05-CV-691) contains the following injunctive relief:

• Enjoins H & P from engaging in racial harassment or retaliation;


• Requires that H & P conduct anti-discrimination training and post a notice about the settlement;


• Requires that H& P redistribute to the workforce its policies prohibiting racial harassment; and


• Requires reporting certain complaints of harassment or retaliation to the EEOC for monitoring.

A full copy of the press release can be reviewed at http://www.eeoc.gov/press/10-25-07.html.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with an attorney.