The U.S. Supreme Court has issued a decision regarding the ministerial exception to Title VII.  Title VII of the Civil Rights act of 1964 prohibits discrimination.  But, for decades, courts have excepted religious institutions from Title VII.  Based on the First Amendment, all circuit courts have recognized that a religious institution may discriminate based on religion.  That is, a Baptist school may require that teachers subscribe to the Baptist faith and even to attend Baptist chiurches.  

In Hosanna-Tabor Evangelical Lutheran Church v. EEOC, Et. Al., No. 10-553, Cheryl Perich taught many classes, one of which was religion.  She was a "called" teacher, meaning she had received theological training.  Without that training, she would be considered a "lay" teacher.  She developed narcolepsy and went out on disability leave.  After several months, she notified the Principal that she could return.  The school, however, told her she had been replaced by a lay teacher.  The Principal expressed concern that Ms. Perich was not truly ready to return to teaching.  The school offered to pay her health insurance for several months in return for her resignation.  When Ms. Perich refused, she was fired.  

The EEOC filed suit, arguing the school was guilty of disability based discrimination.  Ms. Perich joined the lawsuit. The employer moved for summary judgment, invoking the ministerial exception, since Ms. Perich was a "called" teacher.  The lower court granted summary judgment in favor of the employer.  The Sixth Circuit reversed.  The employer then appealed to the Supreme Court. 

The EEO and the plaintiff tried to argue that religious freedom is protected by Title VII.  Title VII itself  prohibits discrimination based on religion.  The court dispensed with that issue quickly.  The real issue was whether the ministerial exception would apply.  Was Ms. Perich a true clergy for purposes of the First Amendment?  The Supreme Court unanimously said she was and found in favor of the employer.  The Supreme Court overruled the Sixth Circuit’s finding that Ms. Perich performed the same religious duties as lay teachers.  The court noted that lay teachers performed those duties only when called teachers were not available.  

The Supreme Court noted that yes, Ms. Perich performed many secular duties.  In fact, her religious duties comprised only some 45 minutes out of her normal work day.  But, the court simply noted that that fact alone is not sufficient to make her something other than a minister.  Many full-time ministers perform secular duties, as well, said the court. 

The Supreme Court thus rejected the "function" test regarding the ministerial exception.  The Supreme Court did not provide an alternative test, but noted that the teacher in this case had been certified by her faith as a "called" teacher and performed religious duties on a regular basis. 

The EEOC also argued that the ministerial exception here was pretext.  The school was actually motivated by the employee’s disability.  The Supreme Court, however, simply, responded that the ministerial exception applies to all employment decisions. 

This decision does not change the law.  The courts of appeals have long recognized the ministerial exception.  But, now it has Supreme recognition……   See decision here. 

Judge Sam Sparks, a U.S. District Judge in Austin, has addressed the very important issue of beer in Texas.  As the judge notes, no one would question the sincere interest of Texans in their beer.  Authentic Beverages Company Inc. filed suit regarding Texas’ beer statutes.  The statutes and regulations divide beer distributors into three tiers, manufacturers, wholesalers and retailers.  These statutes prevent any overlap between the three tiers.  These statutes have made it difficult for the new microbreweries to develop in Texas as they have developed in other states.  

The suit challenged the statutes and regulations on three First Amendment grounds: 1) they prohibit breweries and distributors from telling customers where their product can be bought, 2) they require inaccurate terms, e.g. "malt," "ale" and "malt liquor," 3) prohibit advertising the alcoholic strength of the product.  For example, the plaintiff claims that "ale" is misleading.  Texas uses the term to refer to a specific alcoholic content.  But, in reality "ale" refers to a specific fermentation process, regardless of the alcoholic content. 

The suit is based on commercial free speech and equal protection arguments.  One of the requirements of commercial free speech is that the state must articulate some legitimate government interest in the regulation.  The Texas Alcoholic Beverage Commission and the Attorney General were unable to to articulate a legitimate government interest, found the court.  Indeed, Judge Sparks noted several times throughout the opinion that the AG’s office presented little to no evidence for its positions. 

For example, regarding the distinction between "ale" and "beer," the TABC argued that the misleading definitions used in the Alcoholic Beverage Code work because the average consumer does not appreciate the true difference between ale and beer.  The statutory difference is that ale supposedly has higher alcohol content.  The Court found TABC’s position "laughable."  The TABC was essentially arguing that since no one knew the difference, the Texas Alcoholic Beverage Code could use whatever definition it preferred.  The evidence presented by the plaintiff was to the contrary, that ale actually refers to a specific fermentation process, not the alcohol content. 

The Court found that the defendant, the TABC, failed to present contrary evidence and often failed to even respond to Authentic’s arguments – whether through oversight, laziness or tactical error. 

The plaintiff also advanced Equal Protection arguments.  For example, the regulations prohibit breweries from selling their product at the point of production, but allows wineries to do so.  The laws also prohibits brewpubs from selling to distributors and retailers, but wineries and microbrewers can.  See the Texas Alcoholic Beverage Code, Chap. 74. 

The judge found that Sec. 108.01(a)(4) of the Alcoholic Beverage Code unconstitutional.  The court found that Texas may not require malt beverage producers to use the state definitions of "beer" and "ale."  That does not mean the TABC cannot require producers to accurately label the alcohol content of the product.  But, it does mean the producers may use more accurate definitions.  The court limited the state’s ability to divide producers and retailers.  That is, any such regulations must be more narrowly tailered to achieve the desired end. 

In strong language for a judge, the court said it was "shocked and dismayed" at the "half-hearted" defense by the Texas Attorney General’s Office.  See Judge Sparks’ decision here.  But, Texas beer drinkers have reason to be happy….

 A few months back, the US Army in Afghanistan started tweeting about events in that war zone.  They tweeted when the terrorists attacked civilians and killed women and children.  The Taliban responded with a tweet critical of US forces.  See report of one exchange between the good guys and the Taliban.  In this exchange a few weeks ago, the US Army tweeted, how long will the Taliban continue to put innocent Afghans in harm’s way?  The Taliban responded "I dnt knw. U hve bn pttng thm n ‘harm’s way’ fr da pst 10 yrs. Razd whol vlgs n mkts. n stl hv da nrve to tlk bout ‘harms way.’"  

You can’t make this stuff up….. 

Now, an Israeli law center is threatening to sue Twitter unless they remove the twitter access for groups like Hezbollah and Al-Shabaad.  The Shurat HaDin law center has cited a US Supreme Court case finding it unlawful to support terrorist organizations. 

Sen. Joe Lieberman has also started efforts in the US Senate to require Twitter to block Taliban use of tweets.  See blog post about these efforts to shut down free speech on the internet.

Yes, modern warfare does involve the internet….

 

The National Labor Relations Board has issued a ruling addressing employment agreements with arbitration provisions. The agreement in this decision prevented an employee from filing a class action.  See NLRB decision.  The case concerned an agreement used by the homebuilder, D.R. Horton which provided that employees had to bring employment claims to an individual arbitrator.  The employee could not file their claim as part of a class action.  The agreement prevented an employee from fling suit in court as part of a group or class action.  

The NLRB enforces the National Labor Relations Act, the 1930’s era statute that protects workers who form unions.  The NLRA also allows workers to discuss terms and conditions of their job – whether they have a union or not.  This provision of the NLRA allows employees to engage in "concerted activity," meaning group activity regarding their jobs.  The Board found that the D.R. Horton agreement infringed on concerted activity.  The ruling does not require class arbitrations.  But, it does find that no agreement may foreclose the possibility of groups of employees seeking remedies in a judicial forum. 

For many years, federal courts have been trending toward affirming employment agreements requiring arbitration of claims.  This D.R. Horton decision is a rare setback for that trend.   

The NLRB is composed of members appointed by the President.  Consequently, it is not unusual for decisions to be changed dramatically when a new administration takes over.  When the administration changes, this decision may well change. 

I spent twelve months in Iraq.  We taught and coached Iraqis on the finer points of democracy.  I served with some 140,000 other soldiers and service members.  As soldiers, I thought we did pretty well under the circumstances.  For a country long accustomed to strong central governance, there was visible progress on their ability to govern themselves.  But, we could not teach them tolerance.  

I know our presence, our money, our training served as a brake on their worse instincts.  We did solve some problems at the time by asking U.S. Army higher-ups to exert pressure on Iraqi higher-ups.  The U.S. Army is gone, now.  The Iraqis must apply their own brake now.

Sectarian strife is rising again.  See CBS news report.  Someone, surely Sunnis or Al Qaeda, are attacking the Shiites, again, as they simply proceed to holy sites on holy days.  As before, I am sure Al Qaeda or its allies, seek to provoke Shiite reprisal for reasons best known to the terrorists.

Its a place where the tension is just below the surface.  The Sunni-Shiite differences are superficial, in my opinion.  The Shiite revere past Imams.  The Sunnis do not appreciate their clergy in the same way.  These and other reasons separate the two Muslim sects.  They worship differently, yet they worship the same god.  U.S. citizens may not believe it, but many, a great many Muslims are very gentle and decent.  It is unfortunate that extremists of both sects can generate so much violence so easily. 

At a Army Reserve school many years ago, our instructor was a college professor in his civilian life. In his civilian job, he was visiting science colleagues in Malaysia.  In Malaysia, they have a large ethnic Chinese community.  The Malays and Chinese do not get along there, either.  The Reserve instructor, a Lieutenant-Colonel, told us how he was driving somewhere with a Malay colleague.  The Lieutenant-Colonel saw a horrible car wreck.  A man was killed.  He remarked how bad it looked.  His Malay friend somehow recognized the victim as Chinese.  The Malay merely remarked, "good – one less Chinese."  The instructor was describing intolerance.  Not to diminish racial prejudice, he did want to put the issues of intolerance in a world perspective. 

As a civil rights lawyer, I see racial and religious intolerance frequently.  But, thank goodness, our intolerance is nothing like the intolerance we see in elsewhere in the world.  I cannot help but think that our mechanisms, such as the Civil Rights Act of 1964 have done much to relieve the pressure of intolerance and hate.  I left Iraq very appreciative of our country and all that we have.  

There is a story making the rounds of the internet about a man named Dave who ordered some gaming controllers.  He paid for them and expected to receive a pre-order discount.  Ocean Marketing’s Public Relations representative, Paul Christofor, however, had bad news for him.  Paul told Dave via email that he placed an order, the product had to be tweeked, and Dave should just "put on his big boy hat" and wait it out like every one else.  Paul then suggested Dave cancel his order, as Paul could sell the controllers on Ebay for $150 easily.  Paul then added, Have a good day, Dan."

Dave replied, upset and mentioned that Paul displayed poor public relations skills and said he wanted his controllers.  He made it clear his name was Dave and called Paul a b–tch.  

So, Paul responds with a rambling email that says he is 38, has been on the internet since Dave was sperm, and tells Dave he should grow up and do something more productive with his life than play online games.  Dave forwards the email to an online comic strip artist, who Paul had mentioned.  The comic strip artist  said he will cancel Paul’s booth at a popular gaming festival.  

Paul responded with more beligerence.  He referred to Dave as "Mike."  Other online contacts learned of Paul’s poor marketing skills and tweeted about it.  Paul responded with more caustic comments to them.  And, now, N-Control and Ocean marketing decline to respond to these events.  See story.  

The internet is not for the faint of heart…..

Whistleblowers have a rough row to hoe.  George Green knows this better than anyone.  A former architect for the Texas Dept. of Health and Human Services, he blew the whistle on shoddy building practices at DHHS some 25 years ago.  DHHS fired him in 1989 for alleged sick leave issues.   In 1991, the jury awarded him $13.7 million in total damages.  But, because that amount was so high, he had to lobby the state leglslature to pass a bill appropriating that amount.  Under state law, a state official cannot sign a check over a certain dollar amount.  It was four years before the state legislature awarded this amount. He lobbied himself and hired others to help him lobby the state government.  He received his check sometime in the early 90’s.  

The jury awarded some $10 million in punitive damages.  Apparently, Plaintiff Green reached an agreement with former Lt.-Gov. Bob Bullock that the state would not pay punitive damages.  The whole concept of "punitive damages" is hard for defendants to accept.  That agreement apparently caused him tax trouble with the IRS.  See San Antonio Express News report.  Punitive damages are, I am told, taxable income to the person receiving them.  So, I presume Mr. Green did not pay all of his taxes.  After all his trouble with the IRS and paying lawyers, Mr. Green emerged with only $300,000.  

Mr. Green appealed the tax issues to the Fifth Circuit Court of Appeals in New Orleans and lost.  The court found that Mr. Green’s damages were punitive damages, regardless of the agreement he reached with Bob Bullock.  Mr. Green had tried to argue that the damages were actual damages based on his health issues. I have to say that does sound like risky strategy.  Courts and the IRS would surely look at the actual jury award and jury charge to determine what the jury awarded.  Any subsequent agreement would appear to be designed to avoid tax liability. 

He also lost a lawsuit filed by a consultant.  That cost him $600,000.  He says he had some 200 attorneys, accountants and consultants working for him at various times.  Now, he lives on his father’s monthly retirement check, trying to start a business growing grapes and tending bees. 

But, it sounds like he would still today, after all these troubles, still have blown the whistle….

Use of the term "boy" to refer to adult African American men is usually thought to constitute some degree of racism.  Yet, the 11th Circuit Court of Appeals has struggled with a case in which that term was used.  The case is known as Ash v. Tyson Foods, Inc.  It has been to the 11th Circuit four times.  It was once heard by the U.S. Supreme Court.  The Supreme Court overruled the 11th Circuit and found that the term "boy" could reflect racial bias.  In that decision, the Supreme Court also rejected the "jump off the page and slap you in the face" test for reviewing comparative employees qualifications.  See Worplace Prof blog entry.  That test had been used by some courts when reviewing claims that an employee with inferior qualifications was picked over a minority for promotion.  Some courts formerly claimed the difference in qualifications should be so stark as to "jump off the page and slap you in the face."  The Supreme Court rejected that very subjective test. 

Regarding the "boy" term, the Supreme Court sent that issue back to the trial court for retrial, saying it could show racial animus. 

On each prior appeal of Ash v. Tyson Foods, the 11th Circuit steadfastly refused to see any racial animus in the use of "boy."  Despite the first jury verdict in favor of the plaintiff.  After a second trial, the appellate court has finally reversed itself and now admitted to the obvious.  See the opinion here.  As the court finally noted, the context, tone, inflection and historical usage of such a term affect significantly its meaning.  Id., at page 6. 

It is hard to understand how some judges are so out of tune with the world most of us know.  The Fifth Circuit rejected "boy" as a perjorative term in a case in 2009.  See my prior post.  The 11th Circuit rejected the same term in another case.  See my prior post about that case, Alexander v. Opelika City Schools.  As I have discussed before, many federal judges disfavor discrimination cases.  I tend to believe that many judges simply come from life experiences where they were just not exposed to raw racism.  Unfortunately, that is not the world most of us experience. 

 

 What are the most costly Human Resources errors?  The good folks at Delaware Employment Blog mention four:

  •  Failure to engage in the interactive process required by the Americans with Disabilities Act

That is, Ms. DiBianca refers to HR’s failure to adequately consider requests for accommodation.  The employee need not mention the word "accommodation."  The employee merely need provide sufficient facts so that the employer should understand that accommodation is needed.  Even if the employer is sure an accommodation is not necessary or possible, the employer must still engage in the interactive process to explore the possibilities. 

  • Failure to maintain the public-access files for HB1 determinations
  • Failure to limit who knows about complaints of discrimination

I am still surprised to see how many employers somehow let the accused harasser learn that s/he is the subject of a discrimination complaint.

  • Failure to document employment issues or job performance problems

It takes time, but managers must document properly that they have counseled errant employees. IMO, it is an investment in all employees when you properly counsel one employee. 

See the full post here. 

The Fifth Circuit overturned summary judgment for the employer in Schroeder v. Greater New Orleans Federal Credit Union, No. 10-31169 (5th Cir. 12/19/11).  The employee was fired after she complained about violations of law and regulation at a credit union.  Mary Schroeder filed suit based on 12 U.S.C. §1790b and La.Rev.Stat.Ann. § 23:967(A).  Sec. 1790 is a whistleblower protection act for credit union employees.  The trial court granted the employer’s motion for summary judgment.  The plaintiff was fired Oct. 8, 2008 by the Louisiana credit union.  See Fifth Circuit opinion here. 

The appellate court overruled the summary judgment, finding that the lower court did not construe the available evidence in favor of the non-movant.  Sec. 1790b provides that a credit union employee may file suit if s/he is fired for reporting violation of law or regulation.   The three judge panel found that some evidence supported the employer, but some evidence supported the employee regarding the requirement to show causal connection between her reports of violations and her termination.  The court analogized by using the elements of proof for Title VII retaliation.  

One critical issue was whether Ms. Schroeder reported her concerns to the National Credit Union Association prior to her termination or after her termination.  There was some evidence that she made reports prior to her termination on Oct. 8, 2008.  Letters to the NCUA were dated Oct. 6, although the NCUA did not log them in until Oct. 21.  As the court noted, the trial judge should have construed that evidence in favor of the non-movant.  

Also, several co-workers knew Ms. Schroeder planned to go to the NCUA in June, 2008,  Phone records showed she made several calls to the NCUA in June, 2008.  She has a copy of her two Oct. 6 letters to the NCUA.  And, her attorney sent an email to the NCUA on Oct. 1, 2008.  As the court correctly noted, the lower court was required to view the evidence in light most favorable to the non-movant. So, the court concluded that Ms. Schroeder and her attorney submitted complaints in June and October, 2008 prior to her termination. 

Under Title VII and Sec. 1790b, the employee must show a causal connection between her opposition activity and her termination.  Regarding this causal connection, the court noted that Ms. Schroeder suffered no discipline until she was fired.  And, in fact, the employer praised her performance when she was demoted.  On the other hand, she was said to be "abrasive" to work with.  The court found overall that this evidence regarding her work performance was "neutral."  

Ms. Schroeder was demoted some two weeks prior to her first complaint to the NCUA.  But, her pay decrease came closely after her first calls to the NCUA.  And, her letters and her lawyer’s email came shortly before her termination.  The court noted the competing inferences available from this evidence.  But, again, the court must draw inferences in favor of the non-movant.  Refreshingly, the court reaffirmed that such fact issues should be decided by a jury not by the judge.  So, the court found a close temporal proximity between her reports and her termination. 

The court of appeals then reversed the trial judge and sent the matter back to the trial judge for a trial on the merits. 

It is refreshing to hear the Fifth Circuit affirm the right to a trial by jury on key factual issues.  Perhaps, jury trials are not completely gone from the Fifth Circuit.