Posted by marykeating on September 29, 2011 under Interesting cases, Religious discrimination | 
It’s almost the first Monday in October, and the Supreme Court’s first week includes a religious employer case. These issues have been percolating for a few years, and both the Fourth Circuit and Maryland recently weighed in with decisions.
In the Supreme Court case, a teacher at a Christian school charged that her termination violated the Americans with Disabilities Act. After several years as a teacher of both secular and religious courses, Cheryl Perich developed narcolepsy, and missed several months of the school year. The school refused to permit her return, and she threatened to sue under the ADA. The school then contended that her suit threat contravened the religious principles of the Evangelical Lutheran sect.
The case presents an interesting intersection of the religious exemption problems that come up in employment cases. One exemption is afforded institutions to permit employment decisions based on religion. The exemption furthers freedom of religion as well as the separation of church and state. A teacher of Jewish studies can be fired by his school for doctrinal reasons, or for not adhering to certain tenets of the faith. But in this case, the teacher claims two things: one, that she was fired in retaliation for taking time off for her disability, and complaining of her treatment; and two, if the reason was religion-based (an avoidance of conflict, for example), she should not fall within the ministerial exemption because, for one reasons, she taught secular subjects for the most part, with a minimal religious component.
Posted by marykeating on September 28, 2011 under Religious discrimination |
A new case by the state’s highest court addressed a raging issue – do religious institutions have free rein to discriminate against employees, or must there be a religious component to the discrimination?
The new case involved a claim by Mary Linklater that the Prince of Peace Lutheran Church in Montgomery County. On the merits, the Court of Appeals agreed that “the evidence was sufficient to establish that Respondent (1) was the victim of sexual harassment, (2) complained about the harassment, and (3) was the victim of additional harassment and retaliation as a result of her complaints.” The employee won a substantial verdict at trial.
The more difficult constitutional issues arise because the employee was employed as a music director by a church. Music directors are involved in a church’s ministry, and courts try to stay out of church governance issues because of the First Amendment. On the other hand, as an employer subject to the laws of the state and country, a church employer is bound by laws that do not encroach on religious issues, such as sex discrimination. To relieve churches of all employment laws would tilt the church/state barrier too far in favor of churches, favoring religion, which also violates the First Amendment.
It gets murkier with sexual harassment. While sexual harassment is sex discrimination, and therefore not off limits under a church and state separation analysis, part of Ms. Linklater’s claims stated that her harassing boss engaged in quid pro quo harassment. That is, Ms. Linklater claimed that she was promised a job benefit only if she gave in to her boss’s requests for sexual favors. To judge whether she makes out all parts of her claim, though, the court has to look at whether her job performance was good enough to get the promotion without the sexual harassment. This intrudes on a church’s religious freedom. Similarly, the Court of Appeas decided that the retaliation firing claim intruded too closely on a religious institution’s ability to make its own employment decisions. The hostile work environment claim, however, survives.
The Court did not unanimously agree on this issue. The dissent would limit the religious exemption to a situation where a termination decision had a “spiritual rationale.” The hurch had not offered a reason for the firing that had anything to do with its doctrine.
As a result of this decision, the case will be returned to the trial court. The verdict is erased on state law counts, but now Ms. Linklater may pursue her gender discrimination and sexual harassment hostile environment claims.
Posted by marykeating on September 19, 2011 under Religious discrimination |
The federal anti-discrimination law known as Title VII applies to nearly all employers of more than 15 people. Among other protected categories is the religion of an employee. While the number of charges of discrimination for religious harassment or discrimination is far less than the race and sex based claims, the volume is still significant.
A number of cases over the years have addressed the breadth of Title VII’s exemption for religious organizations as employers. The Fourth Circuit last week made plain that the law exempted religious organizations from all hiring and other employment decisions, including harassment and retaliation. The exemption means “that the government interest in eliminating religious discrimination by religious organizations is outweighed by the rights of those organizations to be free from government intervention.”
In the case that brought this to the Fourth Circuit, an employee of a Catholic nursing care facility refused her employer’s request not to dress in a certain way, reflective of her religious organization’s emphasis on modest dress. When she refused, she was fired. She admitted that the law permitted her to be fired, but contended that the request not to wear her head covering and Thus, although the Catholic facility hired the employee, knowing she was not Catholic, it was free to fire her because of her religious beliefs or impose terms of employment that might conflict with her beliefs.
Significantly, the dissent to the opinion disagreed with the procedural manner in which the case reached the court, but did not believe that the nursing facility’s insistence that the employee alter her manner of dress came anywhere close to actionable harassment.
Posted by marykeating on September 13, 2011 under Discrimination in employment, Economic situation, Unemployment compensation |
President Obama’s proposed bill for job creation includes several provisions to support unemployment workers.
The jobs bill would extend both monetary and job services benefits. It also has a detailed plan to allow states to offer training and other support to those who wish to become self-employed.
An interesting part of the bill addresses a key barrier facing the unemployed: they are unemployed. The EEOC has been concerned about the overt preference given by employers to people who already have jobs; some ads state that they will only consider currently employed applicants. To counter that preference, the jobs bill incorporates a carrot and stick approach. First, it offers incentives to employers who hire someone who has been unemployed for at least six months. Employers can get up to $4,000 as a tax credit. Tax credits are always popular, since they are a direct subtraction from the tax liability, not just a deduction from income.
The stick is called the “Fair Employment Opportunity Act of 2011,” which would prohibit discrimination against the unemployed. The EEOC would have enforcement authority, much like with other forms of discrimination. This provision would eliminate job announcements that require current employment, and also ban employers and agencies from refusing to consider or hire someone on the basis that they are unemployed at the time they seek new employment. Failure to hire cases are difficult to prove, since the employer rarely states why someone does not get a job. Once the motivation is known to be illegal, such a statement would be an endangered creature. Still, with large employers or those with loose lips, the pattern of refusing to consider the unemployed may have to change.
Posted by marykeating on September 7, 2011 under Collective rights |
Don’t you just love to read the inside story? How do spies spend their days, how does the detective figure out the murderer?
Here’s an interesting narrative: How Walmart Trains Managers. This blog post shows an unexpected inside look at the Walmart indoctrination program, and the extent to which the company tries to root out union activity long before it starts. For example, to post a notice for a “baby shower committee” will warrant a warning or a write-up. Committee is “unlawful Walmart language.” Assistant managers may not fraternize with managers or hourly employees. Finally, and hilariously, the eight weeks of training did not show the new assistant manager how to do her job!
While repressing union activity is illegal, it is not easy to prove. Perhaps if the NLRB gets a lot of complaints about write-ups for unlawful Walmart language (such as “group”), some of these charges will be viewed more closely.
Posted by marykeating on September 6, 2011 under Employment benefit issues |
The changes to the labor market include more than just layoffs, and a persistently high unemployment rate. A new Gallup poll shows that employee dissatisfaction has increased on many measures, including most notably the health insurance benefits. Between August 2008 and August 2011, the percentage of workers who are unhappy with “the health insurance benefits your employer offers: rose from 19 to 30%. The same percentage of workers are also concerned that they will be laid off in the near future.
On the plus side, however, workers were more satisfied than three years ago on physical safety at work, flexibility of the hours, and the recognition given for work accomplishments.
The pollsters warn that the results indicate a tug of war between paying workers enough to make them more productive, and using the money to hire more people.
Posted by marykeating on September 2, 2011 under Discrimination in employment |
The Equal Employment Opportunity Commission has been working hard this summer, according to an article summarizing its latest cases. The EEOC enforces federal discrimination laws. Most people who file charges of discrimination with the agency have dealings with the investigative personnel, and perhaps the mediators. But the EEOC also works on larger issues, like regulations, and impact litigation.
Many of its recent cases have challenged companies which fail to provide accommodations for people with disabilities. By viewing the pattern of litigation, employers can see the agency’s positions on strict application of absence policies and refusals to allow people to work from home.
In the last two weeks, it has also filed cases against America Samoa for age discrimination, cases against several restaurants for sexual harassment, and several other cases arising out of Title VII. If the EEOC is this busy during prime vacation season, what will we see in November?
Posted by marykeating on September 1, 2011 under Discrimination in employment |
Is this from another issue of Duh Magazine (with compliments, as always to Andy Borowitz)? No, it’s actually worse.
Much as we Americans cling to notion that merit is the primary factor dictating success, there are personal elements going on, too. A study recently showed just how prevalent favoritism is in determining promotions in the workplace. The study came out of the Georgetown University’s McDonough School of Business on August 23.
Based on surveys of highly placed decisionmakers, the authors of the study concluded that although few people admit personally to employing favoritism in making promotion decisions, most of them have seen it in action. One striking statistic: 54% of decisionmakers knew which candidate they wanted to promote prior to interviewing; of those, a full 96% went with their favored candidate.
Unfortunately, as defined in this study, the source of the favoritism is not the candidate’s stellar performance. Instead, favoritism arises from affinity with the person’s background, ideology, race/sex/religion, and other insider type traits. As a result, most of the survey participants stated that the use of favoritism leads to poorer promotion decisions.
The survey also identified some failsafe mechanisms to avoid allowing favoritism to sway decisions, such as requiring multiple interviewers and impartial review of the decision. Still, with many jobs requiring subjective intangible qualities such as leadership potential, it is hard to imagine favoritism being rooted out altogether. But it would be interesting to develop a way to more closely monitor and measure favoritism and its effects. If the sociologists can pinpoint the illegal components of a decision, that advance would benefit employees who have been discriminated against.
