Employment Practices Guide Update
January 2012
Hot Topics in Employment Practices Guide
Unanimous High Court recognizes ministerial exception, finds it applies to minister who taught secular subjects
“[T]here is a ministerial exception grounded in the Religion Clauses of the First Amendment,” a unanimous U.S. Supreme Court ruled January 11 on an issue of first impression, and that exception bars employment discrimination suits against religious groups by ministers (Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, Dkt No 10-553). Moreover, the exception applied in the case at hand: an ADA discrimination suit brought by the EEOC on behalf of a commissioned minister and “called” teacher who taught largely secular subjects at a Lutheran elementary school.
All process due was given to professor who threatened to kill colleague
A tenured professor who, after receiving a parking ticket, let loose with a tirade of colorful language and threatened to kill a colleague whom he suspected of reporting his parking violation could not proceed with his Section 1983 due process claims for his suspension, ban from the university campus, or the loss of his department chair position, ruled the First Circuit Court of Appeals. His suspension with pay and ban from campus did not deprive him of liberty or property interests such that he was entitled to pre-deprivation process of notice and a hearing, and he received both notice of the charges and the potential sanctions prior to the loss of his chair position. (Collins v University of NH, 1stCir, 95 EPD ¶44,365)
Rejection of sex bias claims upheld despite failure to consider acts predating settlement of prior claims
The Second Circuit Court of Appeals affirmed a district court’s refusal to set aside an arbitration decision that, in rejecting a female financial advisor’s sex bias claims against Merrill Lynch, declined to consider evidence of discriminatory practices that predated her settlement of claims relating to a prior class-wide action. The appeals court squarely rejected the financial advisor’s assertion that the arbitrators’ refusal to consider the evidence of earlier discriminatory acts was contrary to the Lilly Ledbetter Fair Pay Act, agreeing with the district court that the arbitrators’ decision was not based on Ledbetter and, therefore, there were no grounds for vacating the decision. (Schwartz v Merrill Lynch & Co, 2ndCir, 95 EPD ¶44,364)
Residency requirement for firefighters created disparate impact on African-Americans
There was sufficient evidence to demonstrate that a local residency requirement caused a disparate impact by excluding well-qualified African-Americans from eligibility for firefighter positions, ruled the Third Circuit Court of Appeals. In addition to concluding that summary judgment was properly granted to the NAACP, the circuit affirmed an injunction entered by the district court against the use of a Residents-Only List for selection of firefighters. (NAACP v North Hudson Reg’l Fire & Rescue, 3rdCir, 95 EPD ¶44,358)
Ruling in favor of transgender state legislative employee on sex stereotyping claim affirmed
Discriminating against someone on the basis of her gender non-conformity constitutes sex-based discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution, the Eleventh Circuit Court of Appeals held. Thus, the court upheld a ruling in favor of a male-to-female transgender state government employee on her claim that she was terminated due to sex discrimination. Finding that its ruling provided the employee “with all the relief that she seeks,” the appeals court did not address her claim that her constitutional rights were violated because she was terminated due to her medical condition, known as Gender Identity Disorder (“GID”). (Glenn v Brumby, 11thCir, 95 EPD ¶44,349)
Employee, fired despite explaining that absences were for military training, could go to trial on USERRA claim
An Army National Guard member, who was fired for violating his employer’s attendance policy, could go to trial on his claim that he was discharged due to anti-military bias in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA), ruled a federal district court in California. While working as a warehouse order selector during the night shift, the employee enlisted in the Army National Guard in 2008. After he returned from an extended military leave from September 2008 through April 2009, his employment was reinstated. At that time, he was given a new attendance policy, including call-in procedures for absences. Under the policy, each “no call, no show” was assessed three points. During a 12-month period, two or more points resulted in a written warning, six or more resulted in a second written warning, eight or more in a final warning, and ten or more in termination. The employer would not issue attendance points if it had written verification for a leave of absence. (Williams v Sysco San Francisco, Inc, NDCal, 95 EPD ¶44,371)
FCC’s vague justification for assignments could not overcome race and gender bias claims
A former FCC employee could proceed to trial on her claim that reassignments made following an agency reorganization may have been discriminatory on the basis of race and gender, held a federal district court in the District of Columbia. The employer’s assertion that the assignments at issue were made due to “operational needs” was simply too vague to defeat the employee’s claims, the court found. (Bright v Copps, DDC, 95 EPD ¶44,351)
Supervisor’s comment was not sufficiently severe or pervasive to constitute a hostile environment
While the employee may have had a subjective belief that a “new rope” comment felt like a “lynching moment,” the comment in context could not be considered threatening under an objective standard, ruled a federal district court in Ohio. The court found that the employer’s conduct involved only words, and did not involve physical threats. (Lockett v Zatko, NDOhio, 95 EPD ¶44,378)
VP’s conduct toward employee was sufficient to establish hostile work environment claims
While an employee only alleged eight to ten hugs over a three and a half year period, evidence that the company’s vice president forcefully laid on top the employee, told her he wanted to shower with her, and made inappropriate comments “too numerous to count,” demonstrated a sufficiently severe or pervasive environment, and therefore, the discharged employee could proceed with her Title VII claims of supervisory sexual harassment and reprisal, a federal district court in Tennessee ruled. However, the employee’s state law claims of supervisory sexual harassment were untimely, and the employee failed to properly exhaust her administrative remedies on her claims that she was harassed by coworkers. (Rosson v Wyndham Vacation Resorts, Inc, MDTenn, 95 EPD ¶44,376)
What’s New in the Employment Practices Guide
New development added:
EEOC Informal Discussion Letter Concerning High School Diploma Requirements and the ADA — ¶5340