Archdiocese of Washington v. Moersen, 925 A.2d 659 (Md. 2007) (Employment)

A. Overview:

o Circuit Court for Prince George’s County granted defendants’ motion for summary judgment and the Court of Special Appeals subsequently reversed. In majority opinion by Chief Justice Bell, the Court of Appeals affirmed the judgment of the Court of Special Appeals, holding that the ministerial exception to Title VII did not apply to church organist.

B. Affirmative Claims:

o 1) Breach of Contract, Wrongful Discharge, and Intentional Infliction of Emotional Distress against the Parish, its pastor, and the Archdiocese of Washington (Title VII): Respondent, former Catholic church organist, had informed pastor in charge of Parish and employment decisions that he had been sexually abused by Parish choirmaster. Following reporting of abuse, respondent alleged that employment situation deteriorated, and eventually he was told he should retire. A few months later his employment was terminated unilaterally and without notice.

C. Religious Defenses:

o 1) Constitutional; (Free Exercise Clause—“ministerial exception”): Archdiocese of Washington asserts that organist for Catholic church falls within the Title VII “ministerial” exception, carved out in deference to the Free Exercise Clause of the First Amendment. Court holds that, under the facts of the case, an organist holding a position similar to that of respondent does not come within the ministerial exception and he may prosecute a Title VII claim.

Title VII carves out a statutory exception to its employment discrimination law:

“. . . an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, education institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”

This “exception” for religious organizations is also embodied in 42 U.S.C. § 2000e-2 (e).

“This court . . . has recognized that under Title VII, ‘the Free Exercise Clause of the First Amendment precludes the application of these Title VII provisions to employment decisions by religious organizations concerning ministers, teachers, and other employees whose duties are ‘integral to the spiritual ad pastoral mission’ of the religious organization.’ ”

This allows that church significant latitude in its employment decisions when employee in question has duties that are integral to religious mission.

Per Rayburn v. General Conf. of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985), “ministerial exception” applies to any employee whose “primary duties consist of teaching, spreading the faith, church governance, supervision of religious order, or supervision or participation in religious ritual and worship.”

Rayburn established the “primary duties” test: ministerial exception “does not depend upon ordination but upon the function of the position.” (emphasis added)

This Court recognized the exception in Montrose Christian School Corp. v. Walsh, 770 A.2d 111 (2001).

Assessment of Moersen’s Duties:

According to respondent, only duties at Parish were to provide at certain times Sun. services instrumental music and/or musical accompaniment to both congregation and choirs of Church, to provide those services at weekly Sat. evening service, to provide musical accompaniment for Tues. and Fri. evening weekly choir rehearsal, to provide musical accompaniment at special services, and to provide musical accompaniment for congregation at Mon. night weekly novena service. Respondents says he did not plan, nor select, music associated with worship at any of liturgies. He didn’t supervise anyone, and never performed any duties in leadership, teaching, or training capacity. Not required to attend staff meetings and not listed as staff member on church directory. Not required to profess, support, or become member of Catholic faith.

o “merely an organ player”

According to petitioners, Moersen’s K required him to: build and sustain congregational song at all liturgies, assist in selecting and planning music associated with liturgical worship, and participate in special liturgical celebrations. Also supposed to support the Gospel message through the music ministry of Church and encourage congregation to assume active part in musical participation at all liturgical parish functions.

Court agrees with appellate court’s assessment that although music is generally important part of Catholic faith, Moersen’s position fell outside ambit of ministerial exception.

Reasons:

o Moersen merely played organ at various services. Beyond playing the organ and occasionally selecting which songs to play, there was no evidence that he participated in services beyond that of playing the organ or that he was part of ministry to spread Catholic religion.

o No evidence that primary duties consisted of spreading Catholic faith and his role as organist did not play integral or important role in religious ritual or worship.

o Simply not convinced that respondent’s role was supervisory in any respect, involved any form of church governance, or directly required the teaching or spreading of the religious faith.

o It’s not enough to say that Moersen’s music is central to church’s method of worship.

o Respondent was not in absolute control of music played, and he did not lead any choirs, teach any hymns, or control any part of the church services in which he participated. Not required to have specialized knowledge of Catholic faith, nor expected to have any particular religious training. Only needed to know how to play the organ.

o Fact that respondent could have easily been replaced easily by another qualified organ player highlights the non-ministerial-like nature of his position.

o Court distinguishes various cases on which petitioner relies—in each, subject job or position had far greater significance to religious mission than does respondent’s position.

Moersen not required to have specialized knowledge of Catholic faith.

Moersen not “voice” of church. It was Cantor that led Parish and choir in song and Moersen merely accompanied him.

Moersen was not “music minister” and not “pivotal figure” at church, did not plan any liturgies himself, and was not in charge of church’s “musical life.” He didn’t teach choir any music and not listed as Parish Staff.

Moersen not asked to train any ministers and not in charge of reading scripture.

Moersen did not lead any choirs, teach any music, and with rare exceptions, music he played was chosen for him.

D. Dissenting Opinion: Justice Harlan wrote the dissenting opinion, joined by Justices Raker and Cathell.

o Majority minimizes role played by Moersen as organist for Church and lost sight of the simple reality that because Moersen’s “primary duties consist[ed] of . . . participation in religious ritual and worship, he . . . should be considered ‘clergy.’ ”

Moersen’s employment K indicates clearly that his position is “ministerial”:

Objective of position was “[t]o Support Gospel message through music ministry of Saint Catherine Laboure Church” and to encourage congregational participation in liturgies through music.

Position entailing performance of religious music, for church during its religious services, to a religious end cannot possibly be perceived as anything but religious.

Required to attend Parish staff meeting and was considered an ex officio member of all committees relating to liturgies in which he performed.

Majority overtly ignored religious duties assigned to Moersen and instead accepted his characterization of his role in the Parish.

Moersen’s role solely as organist was ministerial:

Simple reality that playing organ for religious services at Catholic church is important facilitation of liturgies in which Moersen participated, obviously an activity “important to the spiritual and pastoral mission of the church.”

Because music inheres vital linguistic significance, performance of that music is equally as significant—there is not such thing as “just an organ player” in religious rituals and ceremonies such as those that Moersen performed in.

Moersen served for all intent and purpose as “the primary human vessel through whom the church chose to spread its message in song.”

Majority makes too much of leadership role of music directors—Moersen didn’t have to be in position of leadership to impact Parish’s liturgies through exercise of his primary responsibilities.

E. Subsequent History:

o Direct History :

Denial of Certiorari: Archdiocese of Washington v. Moersen, 128 S.Ct. 1217 (2008).

Key Issues Raised: # 5

Blume v. Denville Township Board of Education, 34 N.J. Super. 13, 2000).

A. Overview: The trial court granted defendants renewed motion for entry of judgment, moving for judgment notwithstanding the verdict after a jury verdict for the plaintiff. Court reversed and remanded for consideration of plaintiff’s application for interest, attorneys’ fees and cost, to reinstate the jury verdict. Plurality opinion by Justice Brochin.

B. Affirmative religion claims

(i) Termination /Disparate Treatment (N.J. Law Ag. Discr.) Decision not to continue employment based on prejudice against her because she was Jewish and had a recurrence of breast cancer. Result: Judgment reversed and matter remanded.

Presentation of the Argument:

1. Disparate Treatment a. McDonnell Douglas Analysis

i. Choice of Prima Facie Case: Court adopted the Supreme Court’s rule in International Brotherhood of Teamster, that pf case need to show that an employment decision was based on an [illegal] discriminatory criterion.

ii. Application of PF case: trial court properly dismissed claim of alleged anti-Semitism, as Blume failed to produce evidence of illegal discrimination.

iii. Asserted religious discrimination: Teacher made a comment to her about being able to “[j}ew down the price.” Blume was told she needed to be more sensitive to the culture of Denville; the way she wore her hair and jewelry and the way she spoke might be acceptable to her friends and family but may not be acceptable in Denville. Also testified that kids would write “Dot Heads” on Asian Indians’ locker and no action was taken aside from cleaning the lockers.

iv. Failure to provide adequate evidence: There is no evidence from which jury could infer that Ms. Dohrewend was not making a valid point about the customs of Denville. Nothing in the record to show the school should have responded more forcefully to racist graffiti on lockers; does not tell whether the conduct occurred frequently or only in an isolated instance. Other teacher’s insulting remark does not provide a rational basis for attributing prejudice to Ms. Dohrewend.

b. Court determines plaintiff failed to produce evidence of religious discrimination.

C. Religious Defenses (none in this case)

D. Concurring/Dissenting Opinions: None

E. Subsequent History: Treatment of the case on appeal: 756 A.2d 1019, affirming treatment of trial court’s determination that evidence did not support a claim for religious discrimination. Affirming trial court’s determination that evidence did support superintendent was prejudiced against vice-principle because she was suffering from cancer.

Brown Transport Corp. v. Com., Pennsylvania Human Relations Com'n ,

578 A.2d 555 ( Pa.Cmwlth. 1990) (Employment)

A. Overview: Majority opinion by McGinley, J., affirming The Pennsylvania Human

Relations Commission’s, granting relief to employee.

B. Affirmative Religious Claims:

1. Religious discrimination (Section 5(a) of the PHRA, 43 P.S. § 955(a)): Claim that P’s

paychecks began to include Bible verses printed on the face of the checks and company

newsletter contained religious content.

a. Evidence supported determination of religious discrimination.

i. Supervisors testimony lacked credibility regarding company’s rationale

for P’s dismissal conflicted with their reported evaluations of P’s job

performance .

ii. P’s evaluation indicates he was given a raise on time.

iii. P commended by the district vice president for his efforts in loading

patterns tasks.

iv. No evidence regarding P’s alleged shortcomings in employee and

customer relations, and poor job performance.

v. Supervisor’s memorandum stated that P's objections stunted his career

growth.

2. Evidence supported determination that employer retaliated against employee.

a. Short time period between P’s complaints in January 1984 and his June 29, 1984

termination supports Hearing Examiner's conclusion.

3. Evidence supported determination of religious harassment.

i. The Bible verses on his paychecks and the religious material in the

newsletter caused P to question his job security and led him to believe that

an employee of the company needed to be Christian to be promoted into

upper management.

4. Evidence supports employer failed to reasonably accommodate employee's religious-

based objections.

a. Company made little or no effort to remove the religious content from P's

paychecks or his copy of the newsletter after P’s objections.

C. Religious Defenses: none

D. Concurring/Dissenting Opinions: none

E. Subsequent History: none

F. Key Issues Raised: 1

Celnik v. Congregation B’Nai Israel, 139 N.M. 252, N.M.App. 2006 (Employment)

A. Overview: Trial court denied Plaintiffs’ Rule 1-056(f) motion and granted motion to dismiss. Trial court dismissed all counts, except for Count II relating to contract. Court affirmed the district court. Plurality opinion by Justice Bustamante (with Kennedy and Vigil).

B. Affirmative Claims:

1. Disparate Treatment on the basis of medical condition (New Mexico Human Rights Act): Claim that Plaintiff’s medical condition resulted in a campaign to oust Plaintiff from his rabbinical position.

C. Religious Defenses:

1. Constitutional (First Amendment:“church autonomy doctrine”): doctrine is based on provision in First Amendment stating that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”

a. Church Autonomy Doctrine:

Prevents legal entanglement between government and religion

Prohibits courts from resolving disputes related to ecclesiastical operations

Limits civil interference with workings of religious institutions

Free exercise of religion is protected

Court may not interfere with right of ecclesiastical organization to freely select its leaders

Plaintiff’s prima facie tort claim would force the court to ignore the core principles of the church autonomy doctrine

o Application of intrusive balancing test

b. Should not bend church autonomy doctrine to social policies underlying Title VII

Analogize to “Ministerial Exception”

o Relationship between religious institution and leaders is its “lifeblood”

o “Minister is the chief instrument by which the church seeks to fulfill its purpose”

o D. Concurring/Dissenting Opinions

E. Subsequent History: Cited by Galieti v. State Farm Mut. Auto. Ins. Co., 840 F. Supp. 104, 1993 U.S. Dist. LEXIS 18557, 64 Empl. Prac. Dec. (CCH) P42934, 9 I.E.R. Cas. (BNA) 202 (D. Colo. 1993) 840 F. Supp. 104 p.106, Distinguished by Peterson v. Wilmur Communs., Inc., 205 F. Supp. 2d 1014, 2002 U.S. Dist. LEXIS 10327, 83 Empl. Prac. Dec. (CCH) P41135, 89 Fair Empl. Prac. Cas. (BNA) 148 (E.D. Wis. 2002) 

F. Key Issues Raised: #5

Cline v. Auto Shop, Inc., 614 N.W.2d 687 (Mich. Ct. App. 2000). (Employment)

A. Overview:

The Jackson Circuit Court, Charles A Nelson, J., granted defendant employer’s motion for summary judgment in religious discrimination claim, finding that Michigan’s Civil Rights Act did not provide protection for an Atheist or Agnostic who does not have a bona fide religious belief.

The Court of Appeals, Fitzgerald, J., reversed, holding that the protections provided by Michigan’s Civil Rights Act extended to Atheists and Agnostics who did not have a bona fide religious belief.

B. Affirmative Religious Claims:

1. Treatment; [M.C.L. §37.2202(1)]; Employer’s treatment of employee and the terms of such employment were dependent on employees attendance at employers church; reversed in favor of employee-plaintiff and remanded.

The court concludes that the plain text of the statute provides no basis to limit the protections of Michigan’s Civil Rights Act to individuals who allege a bona fide religious belief.

If an employer disfavors an employee because that employee does not share the employer’s religious beliefs, then the employer has disfavored that employee because of religion.

C. Religious Defenses:

1. Defendants moved for summary judgment: attempts to proselytize plaintiff-employee did not interfere with his religious practices; remanded for consideration of the merits of this motion.

D. Concurring/Dissenting Opinions: none

E. Subsequent History: none

F. Key Issues Raised: 1

Commonwealth v. Lotz Realty Co., Inc., 376 S.E.2d 54 (Va. 1989) (Employment)

A. Overview:

o Circuit Court for the City of Newport News entered judgment for defendant real estate broker, which judgment included award of attorney fees. Supreme Court of Virginia affirmed in part and reversed in part. Majority opinion by Chief Justice Carrico.

B. Affirmative Religious Claims:

o Treatment; (Virginia Fair Housing Law: Code § 36-88): Use of Christian symbols and slogans (caricature of a fish encompassing the words “Jesus Is Coming”) in real estate advertising which indicated to persons of other religious beliefs that real estate broker has preference for dealing with or limited their dealings to persons of Christian religious beliefs; Judgment for real estate broker affirmed.

“Per se” Violation of § 36-88 Issue

On appeal, Real Estate Commission tried to argue “ ‘that Lotz was a real estate broker who came within the purview of the statute,’ that the advertisements in question were used to promote the sale of dwellings, and that the advertisements clearly indicated ‘a religious preference or an intention to make a preference based on religion.’ ”

Supreme court rejected per se argument for 2 reasons.

o 1) It was “completely inconsistent” with Commission’s position at trial.

Commission never took position at trial that real estate brokers’ advertisements established on their face a violation of the Fair Housing Law.

Because this was an appellate court and parties may not take inconsistent positions at different stages of proceedings, court cannot decide a question the trial court was not asked to decide.

o 2) Court agreed with position taken by Commission at trial that issue of fact was presented by question whether real estate brokers’ advertisements indicated a preference.

Virginia Fair Housing law violation test parallels federal Fair housing Act.

Violation is proven is “[t]o an ordinary reader the natural interpretation of the advertisements . . . is that they indicate

a . . . preference in the acceptance of tenants.”

Ordinary and reasonable persons could read advertisements here without taking offense and could disagree on question whether they indicate a preference.

Not error for trial court to treat question whether real estate brokers’ advertisements violated Code § 36-88(3) as a factual matter.

Provisions of Code § 36-88(3) Penal in Nature Issue

Trial court assumed, without deciding, that Fair Housing Law is remedial in nature and should be construed liberally.

But, still a factual matter whether real estate brokers’ advertisements violated Code § 36-88(3).

o “[E]ven under a liberal interpretation of the Fair Housing Law, ordinary and reasonable persons could differ on the question whether the respondents’ advertisements indicated a preference, leaving the issue one for determination by a trier-of-fact.”

o Supreme court held that trial court’s holding, if erroneous, “was at most harmless error.”

Advertisement Disclaimer Issue

A disclaimer appeared in a number of advertisements reading, “We list, sell and rent property without any preference, limitation or discrimination based on race, color, religion, sex or national origin or any intention to make such a preference, limitation or discrimination.”

Trial court assumed, arguendo, that if someone perceived an undertone suggesting religious discrimination in the advertisement, “such a perception would be destroyed by the disclaimer.”

o Supreme court states that if this is an error at all, it is an error de minimus, and not ground for reversal.

“Dear Pastor” Letter Admission Issue

The letters, which the trial court admitted for the limited purpose of showing it motivated the league’s filing of an additional complaint, were critical of the Anti-Defamation League.

The Commission wanted the letters admitted as evidence of Paul Lotz’s (real estate broker) intention regarding Jews and the manner in which he felt Jewish people should be treated.

But, the Commission argued conversely that “[n]either Lotz’s personal beliefs nor his intentions are relevant to a determination of whether these advertisements indicate an intention on his part to grant a preference to Christians.

Supreme court held 1) that trial court did not err in limiting use of the “Dear Pastor” letter and 2) that Lotz’s intention was irrelevant.

Expert Testimony Issue

“It is well settled that expert evidence concerning matters of common knowledge or those as to which a jury are as competent to form an accurate opinion as the witness is inadmissible.”

o Supreme court agrees with trial court that expert testimony on question whether real estate brokers’ advertisements indicated a preference was inadmissible.

C. Religious Defenses:

o Constitutional; (42 U.S.C. §1983): Real estate brokers argue that they “have a constitutionally protected right to employ slogans and symbols utilized [in the letterhead] in the course of their real estate business so long as [they] do not in fact discriminate.”; Court expressed no opinion on constitutional questions raised by real estate brokers’ assignment of cross-error.

Trial court held that real estate brokers could lawfully use the letterhead, but the holding was based on the Commission’s failure to carry its burden of proving that the letterhead indicated a discriminatory preference and not on the real estate brokers’ asserted constitutional right.

Supreme court affirmed trial court’s holding in this regard and thus it was unnecessary to consider the constitutional questions raised by the real estate brokers’ assignment of cross-error.

D. Subsequent History: None

Gallo v. Salesian Society, Inc., 676 A.2d 580 (N.J. Super. 1996) (Employment)

A. Overview: After trial, the Superior Court, Law Division, Bergen County entered judgment on jury verdict in favor of plaintiff, and the court of appeals affirmed in part, reversed in part.

B. Affirmative Claims:a. Age and sex discrimination (N.J.S.A. 10:5-12): claimed that defendant’s position

of budgetary constraints was pretext for discrimination based on age (53) and sex.C. Religious Defenses:

a. Free Exercise Clause (Constitutional)i. Application of Law Against Discrimination (LAD) violates the Free

Exercise of Religion.1. Plaintiffs position as a teacher at Don Bosco was ministerial and

the Free Exercise Clause prohibits involvement in church-ministerial employment.

a. Plaintiff’s function was ministerial because no matter what the subject taught, all teachers play a crucial role in the implementation of the religious mission of the school

i. Lemon v. Kurtzmann, 745 U.S. 602 (1971) offered to show that all parochial secondary school teachers perform ministerial functions.

b. The court finds the only evidence to plaintiff’s alleged ministerial function was the agreement contained in her contract to “exemplify Christian principles and ideals”

i. Other courts have determined that teachers of secular subjects do not have ministerial functions (Geary v. Visitation of the Blessed Virgin Mary Parish School, 7 f.3d 324 (3d Cir. 1993)

c. Defendant’s cite to Little v. Wuerl, 929 F.2d 944 (3d Cir. 1991) finding an exemption in Title VII for religious insitutitions, allowing permission to employ person of a particular religion

i. Rejected by the court because, Gallo has not engaged in conduct inconsistent with their religious principles.

d. Employment Div. v. Smith (restoring the compelling interest test set forth in Sherbert v. Verner)

i. Court defers to and accepts the RFRA restoration of the “compelling interst” test to the Free Exercise Clause analysis

1. Finding the State’s interest in abolishing age and gender discrimination is compelling.

b. Establishment Clause (Constitutional)i. Application of LAD violated the Establishment Clause

1. Even if plaintiff’s job was non-ministerial, judicial inquiry constituted excessive entanglement.

a. Third prong of the Lemon test; the court in Lemon found improper entanglement because of the cumulative impact of the entire relationship.

i. Court finds that defendant’s do not contend religious beliefs mandated their challenged action. The factual issues was discrimination on the basis of sex and age. Neither the resolution of this issue nor the inquiry into it impinged on defendant’s religious freedom because, no inquiry into faith, morals or religious polity was required.

b. Dayton Christian Schools v. Ohio Civil Rights Comm’n, 766 F.2d 932 (6 th Cir. 1985) finding defendant’s actions were based on sincerely held religious belifes, therefore the exercise of jurisdiction would violate both the free Exercise and Establishment clause

i. Court cites to Geary v. Visitation of the Blessed Virgin Mary Parish School (previously discussed) standing for proposition that religious institutions are not exempt from Title VII’s prohibitions of discrimination on the basis of race, color, sex, and national origin.

ii. Court found in the current case, as in Geary there was no excessive entanglement between government and religion.

1. Further supported because defendant’s do not claim that their religion mandated age or sex discrimination and their sole defense was the plaintiff was terminated for budget reasons.

c. Defendants argue, citing to DeMarco, that the substantial discovery to which defendant’s were subjected was more than “simple prohibition” to which the court referred in Geary.

i. The court finds no intrusion into defendants’ decision as to who would teach religion, since the

issue here was with who was chosen to teach English and history

ii. Defendant’s argue that plaintiff’s discover was over extensive

1. Court finds that it did not disrupt the functions of the school and therefore, the intrusiveness of a carefully measured discovery is no reason to exempt defendant from LAD scrutiny where the school’s spiritual functions are not at issue,

D. Concurrence/Dissent: NoneE. Subsequent History: NoneF. Key Issue: Five

Heitzman v. Monmouth County , 728 A.2d 297 (1999) (Employment)

A. Overview: The Superior Court, Law Division, Monmouth County, entered summary judgment dismissing employee’s complaint and the Superior Court, Appellate Division affirmed.

B. Affirmative Claims:a. Hostile work environment on the basis that his sensitivity to second-hand smoke

was a handicap within the intent of the LAD. Hypersensitivity to second-hand smoke, which is not related to any recognized medical condition, does not constitute a handicap within the intent of the LAD.

C. Affirmative Religious Claims:a. Hostile work environment as the result of a series of anti-semitic comments.

i. Even though plaintiff does not claim to be a practicing Jew, the court was satisfied that he fell within a protected class because mother was Jewish and there is evidence that the defendant perceived him to be Jewish.

b. Plaintiff identified eight comment he considered to be anti-Semitic.i. The court found that because the person who make the comments was a

coworker and not a supervisor, Manmouth County cannot be held liable.1. Furthermore, plaintiff did not present evidence that anyone

overhear the comment, nor did he tell his supervisors.c. Reasonable person of plaintiff’s ancestry would consider the alleged anti-semitic

comments made by or in the presence of plaintiff’s supervisors to be sufficiently severe or pervasive to alter the conditions of employment and create an intimating, hostile or offensive working environment.

i. Court found that comments made toward plaintiff such as inquires about what he was doing on Friday nights and his dietary habits were at worst “teasing” remarks.

D. Religious Defenses: NoneE. Concurrence/Dissent: Lesemann, J.A.D., concurring in part and dissenting in part.

a. Concurs with the majority’s disposition of plaintiff’s first claim based on sensitivity to second-hand smoke.

b. Agrees with much of the analysis of plaintiff’s claim of ethnic discrimination under the LAD.

c. Dissents finding that comments made to plaintiff or in plaintiff’s presence were sufficiently severe or pervasive to create a hostile work environment.

i. Majority acknowledged comments were anti-Semitic, and that a reasonable person of Jewish ancestry would find some of these comments to be offensive.

ii. Supervisor was anti-Semitic and his comments and attempts at humor were delivered in that context.

1. Based on this does not see how the majority can conclude that no reasonable trier of fact could find that such pervasive conduct created a hostile work environment.

iii. Majority attempts to distinguish between hostile, anti-Semitic and abusive comments on the one hand, and harmless teasing on the other.

1. Here plaintiff and supervisor making the comments were not friends making the comments more hostile and not harmless teasing.

F. Subsequent History: NoneG. Key Issues: None

Indiana Civil Rights Com’n v. Salvation Army Adult Rehabilitation Center, 685 N.E.2d 487 (Ind.App. 1997) (Employment)

A. Overview: The trial court found that the Salvation Army Adult Rehabilitation Center (SAARC) is not an “employer” as to mandate application of Indiana Civil Rights Law and the Indiana Civil Rights Commission along with the employee appealed. Judge Staton, writing for the majority for the Court of Appeals of Indiana, Third District, affirmed. Judges Garrard, J., and Barteau, J. concur in result.

B. Affirmative Religious Claims:

1. Treatment—termination; (Ind. Code § 22-9-1-1 et seq); The Salvation army established the SAARC (residential rehabilitation center) as part of its religious and social services, whereupon SAARC established a thrift store as part of work therapy for the residents. A resident in the SAARC program who worked at the thrift store claimed he was fired due to religious (and gender) discrimination; the Third District Court of Appeals of Indiana found that the Indiana Civil Rights Law does not apply to SAARC because SAARC is not an “employer.”

C. Religious Defenses:

1. Statutory Defense (Ind. Code § 22-9-1-1 et seq): The Salvation Army claimed that its SAARC program, including work therapy where the residents process donated materials at the thrift store, is not under the jurisdiction of the Indiana Civil Rights Law because SAARC is not an “employer” under the Civil Rights Law definition; the Third District Court of Appeals of Indiana agreed with the Salvation Army and found that the Indiana Civil Rights Law does not apply to SAARC because SAARC is not an “employer.”

i. Ultimate Goal of Salvation Army: The Salvation Army is a “distinct” Christian denomination. “An officer in the Salvation Army is a person who has received a divine call from God. Being commissioned as an officer in the Salvation Army is the equivalent to ordination.” Salvation Army’s goal is to help people live their lives with a good relationship to God. The Salvation Army spreads Christian messages and beliefs, as well as providing spiritual and moral counseling and rehabilitation to people in need by establishing programs and religious services.

ii. SAARC is a “Christian oriented program”: includes bible study, spiritual counseling and group therapy. SAARC is not a secular program simply to provide basic needs and therapy to those in need of rehabilitation. The motivations are religious and SAARC is considered “central” to the religious mission of the Salvation Army.

iii. Standard of review: Court does not have to give any deference to the agency’s conclusions.

iv. Salvation Army is religious institution: case law holds that Salvation Army is a religious institution and is excluded from Indiana Civil Rights Law’s definition of “employer.”

v. SAARC is also religious: SAARC is an institution owned and operated by the Salvation Army.

i. Despite SAARC’s affiliation with the Salvation Army, the Indiana Civil Rights Commission argues that SAARC is considered an employer and thus covered by Indiana Civil Rights Law because it owns a thrift store, which commingles religious and commercial activities. Court disagrees and states that engaging in commercial activity does not preclude an otherwise religious organization from enjoying the religious exemption from Indiana Civil Rights Law.

vi. Statute is clear and unambiguous: When a statute is not ambiguous in its language, the court cannot interpret it differently. Therefore, the Court refuses to include in the statute the requirement that religious organizations may not engage in commercial activities in order to retain religious organization exemption status. Thus, plain reading of statute is that SAARC is NOT an “employer.” “The SAARC is a charitable religious institution which is owned by and affiliated with the Salvation Army, a religious institution. This is all the section requires.”

vii. Legislative Intent: Legislature clearly wanted to exempt from state anti discrimination law religious institutions. These types of institutions commonly have bake sales, raffles, and other fund-raisers to spread their religious message. This is what SAARC did with the thrift store.

D. Concurring/Dissenting Opinions Judges Garrard, J., and Barteau, J. concur in the result, but did not write separate opinions.

E. Subsequent History: None

F. Key Issues Raised: 5

Irvin v. Aubrey , 92 S.W.3d 87 (Ky. Ct. App. 2001). (Employment)

A. Overview: Majority opinion by J. Buckingham, affirming refusal of lower court to rule in

favor of EE in religious discrimination suit.

B. Affirmative Religious Claims:

Minister who was employed as county deputy sheriff brought action in state court brought suit,

in part, for religious discrimination, when he was offered a transfer at his own request, that did

not allow guarantee Sunday mornings off.

1. Minister/ deputy sheriff had no valid claim for religious discrimination because he cannot

meet the requirements of the prima facia case, that he was discharged because of his

refusal to comply with the employment requirement, because:

a. Irvin was not discharged nor did he suffer a demotion - he voluntarily requested a

transfer from one position, that did not interfere with his religious practices, to

another which did and subsequently refused it (when it was granted).

b. Trial court was correct in holding that the JCSO provided reasonable

accommodation for Irvin's religious practices.

i. Irvin was allowed to continue working in his initial position which held

the same rank and the same rate of pay.

2. Court does not find that nevertheless EE should have been allowed to make the transfer

and that other accommodations should have been made so that he would not have had to

work on Sundays.

a. The court in Pinsker and Aurora Educ. Ass'n v. Joint Dist. No. 28J of Adams and

Arapahoe Counties, 735 F.2d 388 (10th Cir.1984), held that Title VII of the

federal Civil Rights Act of 1964 “does not require employers to accommodate the

religious practices of an employee in exactly the way the employee would like to

be accommodated.” Id. at 390.

b. Title VII “requires only ‘reasonable accommodation,’ not satisfaction of an

employee's every desire.” Wright v. Runyon, 2 F.3d 214, 217 (7th Cir.1993).

c. In Ansonia Bd. Of Educ. v. Philbrook, 479 U.S. 60 (1986), the Court stated that

“where the employer has already reasonably accommodated the employee's

religious needs, the statutory inquiry is at an end. The employer need not further

show that each of the employee's alternative accommodations would result in

undue hardship.” 479 U.S. at 6.

i. Therefore, since the ER allowed EE to remain in his original position,

which reasonably accommodated his religious practices, it was not

required to make special provision to accommodate him in the position he

desired.

ii. Finally, EE made no suggestions to the ER as to alternative reasonable

accommodations for the position he desired.

1. In the Hazelwood Hospital case, the court held that “the employee

cannot sit idly by and shift all the responsibility for

accommodation to the employer.” Here, this is what EE did.

C. Religious Defenses: none

D. Concurring/Dissenting Opinions: none

E. Subsequent History: none

F. Key Issues Raised: 3

Kentucky Com'n on Human Rights v. Kerns Bakery, Inc. , 644 S.W.2d 350

(Ky. Ct. App. 1982). (Employment)

A. Overview: Majority opinion by J. Howard, reversing and reinstating State Commission on

Human Rights’s order requiring reinstatement of an EE.

B. Affirmative Religious Claims:

EE, member of East 80 Free Pentecostal Holiness Church, was fired (and not offered

accomodation) after advising his ER of his religious belief against Sunday work and seeking

accommodation by way of a transfer to an available non-Sunday job or by being excused from

Sunday work.

1. Constitutionality of “accommodations test” omitted. (outside of scope of assignment? –

let me know and I will fix).

2. Employer could have made reasonable effort, without undue hardship, to accommodate

employee whose religious beliefs did not permit him to perform work on Sunday, and

Commission properly ordered his reinstatement.

C. Religious Defenses: none

D. Concurring/Dissenting Opinions: none

E. Subsequent History: none

F. Key Issues Raised: 3

Kentucky Com'n on Human Rights v. Lesco Mfg. & Design Co., Inc.,

736 SW 2d 361 ( Ky.App.,1987). (Employment)

A. Overview: Majority opinion by Howerton, J., reversing circuit court’s reversal of

Commission on Human Right’s finding of employer’s discrimination against former employee.

B. Affirmative Religious Claims:

1. Religious discrimination (KRS Chapter 344): Employee claimed that she was

discharged for refusing to say the greeting “Merry Christmas” to another person on the

phone [in her capacity as receptionist], at any time or in any manner, would be

considered by her as a violation of her religious beliefs (Jehovah’s Witness).

a. Employee’s claim satisfies [the] three prongs for a prima facie case.

i. Employee has a bona fide belief that compliance with an employment

requirement is contrary to his religious faith.

1. An elder and member of the governing body of employee’s

Jehovah's Witnesses congregation testified to her belief.

2. Evidence from publications of Jehovah's Witnesses concerning the

prohibition against the observance of Christmas supported her

belief.

ii. Employee informed his employer about the conflict.

1. Employee sought to obtain some accommodation, but employer

offered none.

2. Employer could have accommodated Hardin's religious beliefs

without undue hardship to its business.

a. Employer could not have required employee to answer the

phone during [this holiday] season.

b. Employee could have been allowed to use the greeting

“Good Morning.”

iii. Employeee was discharged because of his refusal to comply with the

employment requirement.

C. Religious Defenses: no

D. Concurring/Dissenting Opinions: no

E. Subsequent History: none

F. Key Issues Raised: 1, 3 (indirectly in creating special prima facie case)

Kisco Company v. Missouri Com’n on Human Rights634 SW 2d 497 (Mo. App. 1982) (Employment)

A. Overview: The Missouri Commission on Human Rights found a section 296.020, RSMo 1969 violation, Kisco appealed to the St. Louis County Circuit Court, which reversed the decision of the Commission and ordered the complaint dismissed. In a Per Curium decision, judges Dowd, P.J., Gunn, and Simon, JJ affirmed the Circuit Court’s decision.

B. Affirmative Religious Claims:

1. Failure to Accommodate; (Mo. Rev. Stat. § 296.020 (1969)—this case discusses an earlier section of the Missouri Human Rights Act that has since been repealed); A Kisco employee who worked with machines, claimed that she was discriminated against based on her religion because her employer would not accommodate her “religious” need to wear a skirt to work when company policy dictated that all employees who work with machines must wear pants/ no loose fitting clothing for safety reasons; the Court of Appeals for the Eastern District of Missouri held that there was no evidence to support the finding that there was an intent to discriminate based on religion.

Employee’s claim of religious philosophy: Employee claims that a “startling religious experience” at her church caused her to change her religious philosophy to a belief that all women in the church should not wear pants. Employee subsequently shows up to work wearing a skirt and is sent home. Then tries wearing a dress and is again sent home.

Employee seeks accommodation and is denied: Employee asks to be transferred to a position in the company that would not require working with machines, but was told she did not possess the necessary skills for other positions. Employee never returns to work.

Standard of review: Court reviews all evidence in the light most favorable to the Commission’s decision and finds no intent to discriminate based on employee’s religion.

Reasonable safety measure: The prohibition of machine workers against wearing skirts was a “reasonable safety measure” to ensure the safety of all Kisco workers, and was not discriminatory in its application.

Missouri law does not mandate accommodations: Chapter 296 does not specifically provide for accommodations, as does federal law.  42 U.S.C. § 2000e(j).

Trial Court was correct: Trial court’s judgment is supported by “substantial and competent” evidence. No error.

C. Religious Defenses: None

D. Concurring/Dissenting Opinions: None

E. Subsequent History: Motion for Rehearing Overruled, Transfer Denied May 14, 1982.  Application Denied July 12, 1982.

F. Key Issues Raised: 3

Knepp v. Colonial Metals Company,

73 Pa.   D & C 4th 1 (Pa. Ct. Cm. Pl. 2005) (Employment)

A. Overview: Majority opinion by Perezous, J., granting employer’s (D’s) motion for summary

judgment.

B. Affirmative Religious Claims:

1. Religious Discrimination (Pennsylvania Human Relations Act (PHRA)): P claims that he

was reassigned because of his refusal to misrepresent/falsely report on spec sheets which

was contrary to his religious belief against lying. P’s claim fails because:

a. P is unable to rebut defendant's legitimate, nondiscriminatory reason for his

transfer.

i. D reassigned P because he refused to perform the duties associated with

his prior position as vice president of manufacturing.

1. P agrees that this was the reason.

b. Prior to the transfer, P worked for D for more than 20 years as a born-again

Christian and never suffered any adverse employment actions because of his

faith.

i. He received promotions.

ii. He performed his duties as vice president of manufacturing for several

years without his religion being an issue.

c. The new position kept P at the same rate of pay and allowed him to receive the

same benefits as his prior position.

d. P’s refusal to sign the spec sheets was not a protected act based upon his religion's

prohibition on lying.

i. P’s refusal to lie cannot be deemed a religious belief.

1. P’s actions are not protected because his beliefs are too general in

nature and thus too broad to be protected.

C. Religious Defenses: no

D. Concurring/Dissenting Opinions: no

E. Subsequent History: Knepp v. Colonial Metals Co., 913 A.2d 952 (Pa.Super. 2006).

F. Key Issues Raised: 1

Kohli v. LOOC, Inc., 654 A.2d 922 (Md. App. 1995) (Employment)A. Overview:

o Administrative Law Judge (ALJ) determined that employer failed to meet burden of demonstrating that it would suffer undue hardship it required to accommodate applicant’s religious practice. Appeal Board of the Commission reversed provisional order of ALJ and dismissed complaint. Circuit Court for Baltimore County affirmed the Appeal Board. Court of Special Appeals reversed and remanded. (Majority; Harrel, J.)

B. Affirmative Religious Claims:

o Failure to Accommodate; (Md. Code Ann., Art. 49B, § 16(a)): Discrimination against applicant because of its refusal to accommodate applicant’s religious practice of wearing a beard due to the alleged undue hardship that would be imposed on the employer; Decision of Circuit Court reversed and remanded to Circuit Court with direction to remand case to Appeal Board of the Commission (Appeal Board did not give proper regard to scope of Appeal Board’s review).

Parties do not dispute that a prima facie case of religious discrimination had been established, by showing that . . . (basically McDonnell Douglas Analysis)

1) Kohli/Appellant was a member of a protected group,

2) Kohli applied for position in question,

3) Kohli was qualified for position,

4) Kohli was rejected for position in favor of someone not a member of the protected group under circumstances giving rise to an inference of unlawful discrimination.

Burden shifted to Employer/Appellee to meet burden of demonstrating that accommodation of plaintiff/appellant would have caused undue hardship.

The ALJ heard the testimony of various expert and corporate witnesses that business would be lost if Dominos’ were to provide an accommodation, including the results of 2 studies it had commissioned to determine the attitudes of customers toward employees wearing beards and those wearing bears snood. Appellee had expert testify as to conclusions to be drawn from the surveys.

o “The Beard Perceptions Study”: Results showed that customers felt that beards of varying lengths on pizza employees were troublesome; however, 55% of the participants stated that they would purchase pizza from a bearded employee.

o “The Beard Snood Perceptions Study”: Purpose of this study was to determine the future purchase intent of customers if they saw an employee wearing a beard snood over a beard. Results showed that 16% of the participants said that they definitely/probably would not buy pizza in the future if they saw a bearded employee wearing a beard snood.

o ALJ also recognized Domino’s use of a “mystery” in-house program to gauge customer perceptions of the company’s operation.

o “Despite the results of these investigations indicating that there might be some impact on future purchases by customers faced with employees wearing beards and beard-restraining devices, the ALJ concluded . . . that Domino’s had failed to show by preponderance of the evidence that it would suffer undue hardship if it accommodated Mr. Kohli.”

ALJ found “Beard Perceptions Study” to be of limited value because its focus was only on the condition of being shaven or unshaven and didn’t tae into account customer attitudes toward employees wearing beard restraints. Also there was no scientific evidence.

ALJ also minimized significance of “Beard Snood Study” because the survey did not portray significant statistical differences between customer attitudes nationwide and those in the Baltimore area.

ALJ also concluded that Domino’s had failed to demonstrate that it would lose its competitive edge if it was required to make an accommodation, especially considering the fact that its chief competitor Pizza Hut has made exceptions in the past.

Parties disagree about the scope of the Appeal Board’s authority to reverse the ALJ’s provisional order, in which the ALJ found that LOOC had failed to meet their burden of proving undue hardship.

Appellee incorrectly portrays the ALJ’s determination that Domino’s had not met its burden of demonstrating undue hardship as a question solely of law.

o It’s apparent that Appeal Board took issue only with ALJ’s application of law to facts or inferences to be drawn therefrom.

Also, with regard to Appellee’s other argument that the Commission’s final order is entitled to deference, the Commission has chosen to limit the Appeal Board’s authority to reverse the ALJ’s decision principally to those instances in which the ALJ’s conclusions are unsupported by competent, material, and substantial evidence within the record submitted, or is otherwise arbitrary or capricious.

o It is apparent that the court did not give proper regard to the scope of the Appeal Board’s review.

“Beard Perception Study”: The Circuit Court noted that the Appeal Board merely disagreed with the ALJ. ALJ had rejected study b/c of failure to address customer attitudes toward employees wearing beard restraints.

“Beard Snood Study”: Circuit Court “found that the ALJ’s assertions, that the study neither portrayed a statistical difference in the attitudes of customers in the Baltimore area nor took into account the effect of a beard net as opposed to a snood, to be erroneous and not supported by substantial evidence.”

Circuit Court should have recognized that the Appeal Board reached its entire decision without regard to applying the substantial evidence test—the Appeal Board did not consider “whether a reasoning mind could have reasonably reached the conclusions that she did.” The Board never determined that the ALJ could not have adequately supported her conclusions based on the evidence presented.

C. Religious Defenses: None

D. Subsequent History:

o Direct History :

Treatment of case on appeal:

LOOC Inc. v. Kohli, 678 A.2d 1047 (Md. 1996): Employer filed petition for writ of certiorari and motion to stay circuit court's order denying employer’s motion for reconsideration of the Commission’s decision that the employer had engaged in unlawful religious discrimination and ordered the employer to revise its no-beard policy, pay applicant back pay, and offer applicant next available position as manager in training. Court of Appeals granted petition and ordered matter stayed pending its decision.

LOOC, Inc. v. Kohli, 701 A.2d 92 (Md. 1997): The Court of Appeals reversed in part and remanded for procedural issues. The portion of the circuit court’s order directing employer to comply with Commission’s decision and order was a preliminary injunction that was not issued in accordance with the rules governing injunctions and therefore must be reversed. Additionally, reversal was required because even if the compliance portion of the order had been issued in accordance with the rules, interlocutory relief was not authorized by the statute governing enforcement of Commission’s orders.

E. Key Issues Raised: # 3

Mandel v. UBS/Painewebber, Inc., 860 A.2d 945 (2004) (Employment)

A. Overview: The Superior Court, Law Division, Essex County, granted summary judgment for defendants, and the Superior Court, Appellate Division affirmed.

B. Affirmative Claims:a. Third party sexual harassment based on Title VII. Plaintiffs failed to demonstrate

any sexual relationship, let alone a coerced sexual relationship between Hayden and Romany.

C. Affirmative Religious Claims:a. Hostile work environment on the basis of the Law Against Discrimination (LAD).

i. McDonnell Douglas1. Prima Facie Case: Plaintiffs argue that the judge ignored their

expert’s report and dismissed its critical value. The court of appeals found that the trier of fact has not duty to give controlling effect to uncontradicted expert testimony and it need not accord the expert testimony greater weight that other evidence.

a. An expert’s opinion cannot provide the factual basis for denying summary judgment.

2. Court finds the claims for hostile work environment was properly dismissed because, after considering facts in light most favorable to plaintiffs, a jury could not conclude that Romany’s comments and actions were so severe or pervasive to create a hostile work environment.

a. Prima Facie case not demonstrated.b. Disparate treatment on the basis of the Law Against Discrimination (LAD).

i. McDonnell Douglas1. Prima Facie Case: plaintiffs contend the established by showing

they were qualified for their positions and they are Jewish.a. Court find plaintiffs did not demonstrate that the employer

was motivated by discriminatory intent.i. No evidence the Romany treated Jewish brokers

less favorably than other brokersii. Lewis presented no evidence to show that Romany

singled her out because she was Jewish.iii. Mandel cannot show that Romany interfered in his

relationship with the bond desk.iv. There is no evidence, other than plaintiffs’ expert’s

opinion that the decrease in plaintiffs’ income was due to any disparate discriminatory treatment by Romany.

c. Plaintiffs failed to demonstrate a prima facie case of disparate treatment.

D. Religious Defenses: NoneE. Concurrence/Dissent: NoneF. Subsequent History: Certification Denied , N.J., March 10, 2005G. Key Issue: None

McLeod v. Providence Christian School, 408 N.W.2d 146 (Mich. App. 1987)

A. Overview: Kalamazoo Circuit Court, Charles H. Mullen, J., denied school’s motion for accelerated

judgment after teacher was discharged due to teacher’s giving birth.

Court of Appeals, Banks, J., affirmed.

B. Affirmative Religious Claims: None – plaintiff claims that defendant’s hiring practices discriminate on the basis of sex.

C. Religious Defenses: Constitutional defense; (Free Exercise and Establishment Clauses); Defendant’s argue the

Civil Rights Act is unconstitutional as applied because it violates the Free Exercise and Establishment clauses of the First Amendment; claims rejected.

o Court uses test from Sherbert and finds no fee exercise violation: “governmental regulation may lawfully impose an incidental burden on otherwise protected religious conduct.” (150) A balancing test is employed to determine whether government may regulate conduct prompted by religious belief or principle: (1) the belief or conduct must be religious in nature; (2) the party claiming the free exercise violation must show that the regulations impose a substantial burden on their free exercise of religion; (3) if the complaining party meets this burden, there must be compelling state purpose to uphold law. Court finds no undue burden on defendant, and finds that ending employment discrimination based on sex is a compelling state interest.

o Court uses test from Lemon and finds no establishment violation: (1) the statute must have a secular purpose; (2) the statute’s principle or primary effect must be one that neither advances nor inhibits religion; (3) the statute must not foster excessive government entanglement with religion. Here, court finds no excessive entanglement because “the entanglement between defendant’s religious liberties and the state’s legitimate interests do not seem to be greater here than those which have been approved in other cases” such as Emmanuel Baptist Preschool and Dayton Christian Schools.

D. Concurring/Dissenting Opinions: none

E. Subsequent History: none

F. Key Issues Raised: 5

McReady v. Hoffius, 586 N.W.2d 723 (Mich. 1998).

A. Overview:

Circuit Court, Jackson County, granted summary disposition for landlords.

Court of Appeals affirmed Circuit Court.

Michigan Supreme Court in an opinion by Marilyn J. Jelly, J., reversed and remanded.

B. Affirmative Religious Claims: None – plaintiff’s claim that they were discriminated against on the basis of marital

status.

C. Religious Defenses: Constitutional defense; (Michigan Constitution Art. 1 §4, First Amendment of the United

States Constitution); Defendant’s claim that the Civil Rights Act violates their religious freedom rights under both the Michigan Constitution and the First Amendment of the United States Constitution; both claims rejected.

o The majority uses the Smith test to determine that the Civil Rights Act is both neutral and generally applicable, therefore does not violate the Free Exercise Clause.

o The majority uses the compelling state interest test developed in Yoder and Sherbert to determine that “the defendant’s freedom to exercise their religion under the Michigan and federal constitutions is not violated by requiring their compliance with the Civil Rights Act under the facts of this case.” (145)

D. Concurring/Dissenting Opinions: Boyle, J. dissent (marital status) Weaver, J., dissent (marital status)

E. Subsequent History: Michigan Supreme Court vacated and remanded.

F. Key Issues Raised: 4

Michigan Dept. of Civil Rights ex rel. Parks v. General Motors Corp., Fisher Body Division, 287 NW 2d 240 (Mich. Ct. App. 1979). (Employment)

A. Overview:

The Circuit Court, Oakland County, Francis X. O’Brien, J., set aside order of Civil Rights Commission directing employer to cease and desist from discriminating against employee because of religion, on the ground that employer was not required to reasonably accommodate religious needs of employee.

After Department of Civil Rights appealed, the Court of Appeals, Allen, J., affirmed, holding that a proscription appearing in repealed provision of the Fair Employment Practices Act making it an unfair employment practice for an employer to discriminate against an employee did not impose a duty on the employer to make reasonable accommodations to the religious needs of employees.

B. Affirmative Religious Claims:

1. Impact; [§3a of the FEPA (repealed); M.C.L. §37.2202 (1) (a) & (b), Civil Rights Act of 1964 §703(a)]; the FEPA prohibition against religious discrimination in employment practices includes a duty to reasonably accommodate the religious needs of an employee, in order to avoid a disparate impact; claim denied (beyond the scope of FEPA §3a, Court reluctant to find affirmative duties in a general ban on discrimination).

In the absence of any clear interpretation by the Michigan legislature that the term “discrimination” in the FEPA included a duty to make reasonable accommodations, such a construction goes beyond the legislative mandate of §3(a) of FEPA.

The legislature had the opportunity to amend the statute and enact positive legislation addressing the issue of religious accommodations on three occasions, but did not do so.

The court is reluctant to find affirmative duties in a general ban on discrimination.

C. Religious Defenses: none

D. Concurring/Dissenting Opinions: none

E. Subsequent History: Michigan Supreme Court remanded to circuit court for further proceedings.

F. Key Issues Raised: 3, 6

Michigan Dept. of Civil Rights ex rel. Parks v. General Motors Corp., Fisher Body Division, 317 N.W.2d 16 (Mich. 1982). (Employment)

A. Overview:

The Circuit Court, Oakland County, Francis X. O’Brien, J., set aside order of Civil Rights Commission directing employer to cease and desist from discriminating against employee because of religion, on the ground that employer was not required to reasonably accommodate religious needs of employee.

After Department of Civil Rights appealed, the Court of Appeals, Allen, J., affirmed, holding that a proscription appearing in repealed provision of the Fair Employment Practices Act making it an unfair employment practice for an employer to discriminate against an employee did not impose a duty on the employer to make reasonable accommodations to the religious needs of employees.

The Michigan Supreme Court, in opinions by Kavanaugh, Levin and Williams, JJ., remanded, held that:

(1) Fair Employment Practices Act does not impose duty on employer to make reasonable accommodations to an employees religious needs;

(2) Action was remanded to circuit court for further proceedings and since there could be a finding of discrimination based on evidence that employer failed to act affirmatively to avoid discriminatory effect of a facially neutral practice.

B. Affirmative Religious Claims:

1. (cited from lower court opinion) Impact; [§3a of the FEPA (repealed); M.C.L. §37.2202 (1) (a) & (b), Civil Rights Act of 1964 §703(a)]; the FEPA prohibition against religious discrimination in employment practices includes a duty to reasonably accommodate the religious needs of an employee, in order to avoid a disparate impact; claim denied (beyond the scope of FEPA §3a, Court reluctant to find affirmative duties in a general ban on discrimination).

In the absence of any clear interpretation by the Michigan legislature that the term “discrimination” in the FEPA included a duty to make reasonable accommodations, such a construction goes beyond the legislative mandate of §3(a) of FEPA.

The legislature had the opportunity to amend the statute and enact positive legislation addressing the issue of religious accommodations on three occasions, but did not do so.

The court is reluctant to find affirmative duties in a general ban on discrimination.

C. Religious Defenses: none

D. Concurring/Dissenting Opinions:

1. Concurrence; Coleman, C.J., Ryan, J., and Levin, J.:

Agrees with the majority that the FEPA does not impose a separate obligation to accommodate the religious needs of employees; however, the concurrence adds that an employer may nevertheless be required to act affirmatively to avoid discrimination against an employee because of religion.

Remand the case to the circuit court for further proceedings.

2. Dissent; Williams, J.:

Disagrees with majority about the implications of the FEPA. The dissent believes that the statutory duty to refrain from religious discrimination in employment imposes a duty on the employer to reasonably accommodate an employee’s religious needs unless it would cause an undue hardship. Moreover, such a duty does not violate either the Establishment Clause or the Michigan Constitution.

Agrees with the concurrence that there is nothing in this matter to preclude a finding of discrimination based on the evidence that an employer failed to act affirmatively to avoid the discriminatory effect of a facially neutral practice.

Reverse Court of Appeals and remand to circuit court.

E. Subsequent History: none

F. Key Issues Raised: 3, 6

Montrose Christian School Corp. v. Walsh, 770 A.2d 111 (Md. 2001) (Employment)

A. Overview:

o In “Case 1,” Circuit Court for Montgomery County entered judgment for plaintiff. In “Case 2,” Circuit Court for Montgomery County entered judgment for plaintiffs. Court of Appeals (highest court in MD) issued writ of certiorari and cases consolidated on appeal. Court of Appeals reversed judgments of the Circuit Court and both cases were remanded with directions to enter judgment for defendants. Majority opinion by Judge Eldridge.

B. Affirmative Religious Claims:

o 1) Treatment; (Montgomery County Code, § 27-19; Maryland Code, Art. 49B, § 18): Former teacher’s aide and former school employees brought employment discrimination claim against school and its principal for firing them based on their religious beliefs; Judgments for former teacher’s aide and former employees reversed.

Court does not really go into detail discussing the former employees’ claim because they conclude that the Ministerial Exception defense is available to the school and its principal, so that consequently the employees’ claim fails.

In the description of the procedure below for both cases the court notes that:

Montrose Christian School Corporation is a private religious school affiliated with the Montrose Baptist Church.

The school and the church operate on the same grounds and have only one sign, “Montrose Baptist Church.”

Enrollment in the school is not limited to students whose families are members of the church or to students who are Baptist. The majority of students attending the school are not members of the church and students belong to a variety of religions and denominations.

The principal carries out the administration of the school under the direction of the Pastor of the Church.

After a change of pastors in 1996, changes were made to the administrative policies at the school and all employees who were not members of the Church, with the exception of 2 janitors, were fired.

The former employees who brought the suit were not members of the Church and were fired.

C. Religious Defenses:

o 1) Constitutional; (Free Exercise Clause of the First Amendment and Article 36 of the MD Declaration of Rights—Ministerial Exception): School and principal argue that applying anti-discrimination law to employees of religious school “whose primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship” violates the Free Exercise Clause of the First Amendment; Court held that school and principal were entitled to employ only members of their Church under the Ministerial Exception.

Free Exercise Clause:

Reflects “a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”

The constitutionally-required exception to Title VII (the Ministerial Exception) is applicable to any employee of a religious organization whose “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.”

o State courts, relying on free exercise guarantees of federal and state constitutions, have recognized a similar “ministerial exception” in actions under state law prohibiting discrimination in employment.

At the very least the free exercise of religion includes the right of churches to hire employees and that they are entitled to insist on undivided loyalty from these employees.

Church labor relations are internal affairs and the state’s interest in interfering to protect employees must be judged accordingly.

In this case, the former employees duties fit into the definition of employees covered by the exception:

o Case 1: Employee performed tasks such as copying, typing, grading papers, and generally assisting school staff and teachers in administrative ways

o Case 2: One employee was a bookkeeper and the principal’s secretary. One employee fulfilled a secretarial position handling registration-type duties and general administrative tasks. The other employee was hired as a cafeteria worker and her duties included planning menus, ordering food, preparing meals, and cleaning up.

Consequently the School and the principal were entitled to employ only members of their Church under the Ministerial Exception and the firings of the former employees were permissible.

D. Subsequent History: None

E. Key Issues Raised: # 5

New Hanover Human Relations Commission v. Pilot Freight Carriers 351 S.E. 2d 560 (1987)(Employment)

A. Overview: The Superior Court, New Hanover County dismissed plaintiffs’ petition for enforcement of commission’s order for reinstatement, and the Court of Appeals affirmed.

B. Affirmative Religious Claims:a. Termination based on religion, Chapter 6.5 of the New Hanover County Code,

enacted pursuant to 1981 N.C. Sess.Laws Ch. 960.i. Petitioner contends that the commission’s findings of fact and conclusion

of law were proper and appropriate.1. The court found that the Judge correctly concluded that suggested

accommodations would impose only a deminimis cost on Pilot were not supported by the evidence and were affect by error of law.

b. Trial court erred by failing to set out specific reasons for declining to enforce commissions order.

i. Findings and conclusions that the commission’s decision was affected by error and unsupported by competent evidence in the record were sufficient to support the order.

C. Religious Defenses: NoneD. Concurrence/Dissent: NoneE. Subsequent History: NoneF. Key Issues: Three

Nicola v. Washington Times Corp., 947 A.2d 1164 (D.C. 2008) (Employment)

F. Overview:

o Appeal from grant of employer’s motion for a directed verdict on all three claims. Affirmed in part, reversed in part, and remanded. Majority opinion by Senior Judge Ferren.

G. Affirmative Religious Claims:

o Treatment; (District of Columbia Human Rights Act: D.C. Code § 2-1402.11 et seq.): Discrimination against employee because of his refusal to accept overtures to join the Unification Church and also because of his resistance to hiring and promoting a candidate who was a member of the Church; Directed verdict for employer affirmed.

Choice of Prima Facie Case: Analysis differs for this claim from one used in “more conventional discrimination cases.”

US Court of Appeals for 10th Circuit in Shapolia v. Los Alamos Nat’l Lab., 992 F.2d 1033 (10th Cir. 1993), explained that when “discrimination is not targeted against a particular religion, but against those who do not share a particular religious belief, the use of the protected class factor is inappropriate.”

Accordingly, for plaintiff to establish a prima facie case of discrimination, he must show:

o (1) that he was subjected to some adverse employment action;

o (2) that, at the time the employment action was taken, the employee’s job performance was satisfactory; and

o (3) some additional evidence to support the inference that the employment actions were taken because of a discriminatory motive based upon the employee’s failure to hold or follow his or her employer’s religious beliefs.

If plaintiff makes PF case of discrimination, then 3-part, burden-shifting test used in McDonnell Douglas applies.

Application of PF Case: Doesn’t meet “satisfactory performance” prong (prong #2).

(1) Employee’s job termination was inherently adverse employment action.

(2) Employee did not meet “satisfactory performance” requirement because there is no record basis for finding that he had been satisfactory supervisor at time employment terminated.

o Needed work on delegating tasks to subordinates and on improving morale within team.

o Had been combative with supervisors—conduct constituted insubordination.

o Received written warning for being insubordinate and e-mail warning for tape-recording supervisor’s conversations with other employees.

o Suspended for week for insubordination for making vulgar remarks and physical threats to supervisor.

o Fired on day of altercation with two other employees.

Court agrees with trial judge “that any findings of religious motive for these employer actions . . . would have been speculative.” No reasonable juror could have found that employee’s job performance was satisfactory at time employment was terminated.

o Harassment; (District of Columbia Human Rights Act: D.C. Code § 2-1402.11 et seq.): Subjection to hostile work environment because employee did not hold the same religious beliefs as his employer representatives; Directed verdict for defendant affirmed.

Prima Facie Case court applies as a given:

To prevail on hostile work environment claim under DCHRA, plaintiff must establish:

o (1) that he is a member of a protected class,

o (2) that he has been subject to unwelcome harassment,

o (3) that the harassment was based on membership in protected class, and

o (4) that the harassment is severe and pervasive enough to affect a term, condition, or privilege of employment.

Additionally, harassment must consist of more than a few isolated incidents and genuinely trivial occurrences will not establish a prima facie case. Plaintiff must also demonstrate that work environment was objectively and subjectively hostile.

Application of PF Case:

(1) Class Membership: Courts assume away protected class requirement here and substitute burden on plaintiff to establish background circumstances that support inference that defendant is one of those unusual employers who discriminate against the majority.

o Assume that substitution criterion is met because of close relationship between employer and Unification Church.

(2) Unwelcome Harassment: Court assumes employee met this criterion.

(3) Alleged Harassment would not have taken place but for his status as non-member of Unification Church: Employee failed to show that harassment would not have taken place but for his status as non-member of Church because the inferences are too speculative for a reasonable jury to have drawn.

o Employee gave 3 specific instances of harassment:

Lucille Borer began to complain to employee for first time after he refused an invitation to attend a blessing.

Immediate supervisor harassed him in various ways.

Fellow employee, Quinn, was insubordinate, called him names, and physically threatened him.

o The treatment the employee endured was because of “personal conflicts between plaintiff and [his] coworkers and/or supervisors” and not because of religious animus.

(4) Severe and Pervasive Harassment: Court assumes employee met this criterion.

o Retaliation; (District of Columbia Human Rights Act: D.C. Code § 2-1402.11 et seq.): Employment terminated in retaliation for engaging in protected activity—complaining to supervisor that he was the victim of religious discrimination; Directed verdict for defendant affirmed.

Prima Facie Case for retaliation under DCHRA that court applies as a given:

Plaintiff must establish that:

o (1) she was engaged in protected activity, or that she opposed practices made unlawful by the DCHRA;

o (2) the employer took an adverse personnel action against her; and

o (3) a causal connection existed between the two.

Application of PF Case: Evidence sufficient for jury to find that employee satisfied 3 criteria.

(1) Protected Activity: The memo that employee wrote to supervisor during his suspension where he complained that he was the victim of discrimination was protected activity.

(2) Adverse Personnel Action: Termination of employment constitutes adverse personnel action.

(3) Causal Connection: The 9 day gap between the employee’s protected activity and his job termination is sufficient to establish a

causal connection. Also, employer obviously knew about the memo complaining about being the victim of discrimination.

McDonnell Douglas framework: Burden shifts to employer and its proffered non-discriminatory reasons for termination are reviewed.

Employer had legitimate reasons for termination.

Burden shift back to Employee: Employee must then establish that stated reasons for terminating him were false or a pretext and that discrimination was the real reason.

Employee does not meet this burden.

o “[E]vidence points overwhelmingly to unsatisfactory job performance warranting termination.”

H. Religious Defenses: None

I. Subsequent History: None

J. Key Issues Raised: # 1

Pardue v. Center City Consortium Schools, 875 A.2d 669 (D.C. 2005) (Employment)

E. Overview:

o Trial court, after substantial but limited discovery, dismissed complaint on First Amendment grounds (“ministerial exception”). In majority opinion by Associate Judge Farrell, District of Columbia Court of Appeals upheld decision of trial court.

F. Affirmative Claims:

o Former Catholic school principal alleged discrimination and retaliation based on race under the District of Columbia Human Rights Act.

G. Religious Defenses:

o Constitutional; (Free Exercise Clause—“ministerial exception”): Ministerial exception to employment law bars former Catholic school principal’s action against archdiocese for racial discrimination and retaliation, as well as former principal’s claim for breach of implied covenant of good faith. Ministerial exception “bars civil courts from adjudicating employment discrimination claims by ministers and similar persons exercising religious functions against the religious institution employing them.” Court rejected Pardue’s claims for lack of subject matter jurisdiction based on the ministerial exception.

First, court holds that ministerial exception as applied in the case of federal statutes may be raised as a bar to suits alleging discrimination under the District of Columbia Human Rights Act.

“[A]bundance decisional law from this court and others confirms ‘the constitutional imperative of governmental non-interference with the ministerial employment decisions of churches.’ ”

“Primary Duties” Test:

Position of principal at Catholic school should be analyzed applying the “primary duties” test endorsed by both sides and enunciated in Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).

o “As a general rule, if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship, he or she should be considered ‘clergy.’ This approach necessarily requires a court to determine whether a position is important to the spiritual and pastoral mission of the church” in order to decide whether the ministerial exception applies.

Under the test, Catholic schools in Archdiocese have pervasive religious mission and principal of each school has significant religious and spiritual role in furthering that mission.

o “[T]he Catholic school is an integral part of the Church’s mission to proclaim the Gospel, to build faith communities, to celebrate through worship, to serve others.”

o Because of the pervasive religious mission of the Catholic schools in the Archdiocese, the principal of each school has a significant religious and spiritual role in furthering that mission.

“Major Areas of Responsibility” for the principal beings with “spiritual leadership.”

The first category of the principal’s performance evaluation is “Provides spiritual leadership in and for the school community.”

Pardue was also responsible for hiring teachers who could teach Catholic courses and made sure that students attended mass.

Pardue makes argument that judge below unfairly minimized evidence that most of Pardue’s daily responsibilities were “administrative” and basically no different from those performed by her counterparts in public schools.

o Court holds that as principal of a Roman Catholic school, Pardue, more than anyone else at the school except the pastor, was answerable to the religious authorities for providing “spiritual leadership in and for the school community.” These responsibilities, some secular and some religious, “are inextricably intertwined in the school’s mission and in the principal’s role in fulfilling it.”

Pardue makes argument that the pastor is the chief religious educator for the parish school and not the principal.

o Court holds that “even if the principal were subordinate to the pastor in regard to purely religious decisionmaking, ‘there is no requirement that an individual have the ‘final say’ on spiritual matters before the ministerial exception can be applied.’ ”

Pardue’s breach of contract claims are also barred by the ministerial exception.

H. Subsequent History:

o Direct History : Petition for writ of certiorari to the District of Columbia Court of Appeals denied. Pardue v. Center City Consortium Schools of Archdiocese of Washington, Inc., 546 U.S. 1003 (2005).

I. Key Issues Raised: # 5

Pennsylvania State Univ. v. Pennsylvania Human Relations Com'n ,

505 A.2d 1053 (1986). (Employment)A. Overview: Majority opinion by J. Craig, reversing an order of the Human Relations

Commission.

B. Affirmative Religious Claims:

1. EE refused to work on his Sabbath [as a supervisor of a force of patrol officers at a

medical center] , observed from Friday sunset until Saturday sunset, where the

observance required leave on 26 scheduled Saturdays of work each year.

2. EE meets the first two of the three elements of a prima facie case for an unlawful

discriminatory practice:

a. He had a sincerely held religious belief which prevented him from working upon

his Sabbath. (element 1)

b. He informed his employer of his belief andof his unwillingness to work on that

day of the week (element 2);

c. EE does not meet the third requirement:

i. His employer [did not take] adverse action against him by discharging

him because of his religious beliefs. Rather, because it did not

accommodate him.

3. However, ER overcame its burden of showing that it would face undue hardship by

accommodating EE.

a. Considering the nature of the employer's business, security, the weekly frequency and

permanent duration of the accommodation and the nature of the employee's work, the

following accommodations would transcend reasonableness.

a. (a) attempting to replace him with supervisory or non-supervisory officers

working his Saturday shift on a volunteer basis for premium pay which

otherwise would not be due, or

b. (b) compelling such other employees to replace him, with premium pay, if

insufficient numbers of them volunteer to do so, or

c. (c) filling his supervisory position on each of those Saturdays with non-

employee guards hired from an outside security firm.

C. Religious Defenses: none

D. Concurring/Dissenting Opinions:

Dissent by J. Colins,

1. The case of Trans World Airlines v. Hardison, 432 U.S. 63 (1977) is improperly applied

by the court. Rather, it stands for the validity of seniority provisions in the face of

discriminatory consequences, not accommodations.

2. Majority’s Legal Standard Incorrect

a. The test of “undue hardship” is strictly applicable only in cases brought under

Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C.A. § 2000e(j).

b. Federal courts substituting the Hardison test for a more liberal test used by a

lower tribunal have usually remanded for specific findings on the issue of undue

hardship rather than reversing the lower tribunal outright.

3. The petitioner is a state actor for purposes of the Fourteenth Amendment. The free

exercise clause is directly applicable to the employer and the test ... is not Hardison.

a. Caselaw supports use of the test and affirming the order. (omitted for brevity).

E. Subsequent History: none

F. Key Issues Raised: 3

Pittsburgh Press Co. v. Com., Human Relations Commission , 376 A.2d 263 .

(Public accommodation)

A. Overview: Majority opinion by J. Kramer, reversing order of The Pennsylvania Human

Relations Commission ordering publisher to cease and desist publication of “Situation-Wanted”

advertisements which specified or expressed race, color, religious creed, ancestry, age, sex or

national origin of person placing advertisement.

B. Affirmative Religious Claims:

Commission was without power to prohibit inclusion in any situation-wanted advertisement of

any specification or expression of advertiser's race, color, religious creed, ancestry, age, sex or

national origin. The Commission has failed to show that Section 5(g) in any way significantly

furthers the Commonwealth's concededly substantial interest in eradicating employment

discrimination; that application of Section 5(g) would have the effect of significantly impairing

the flow of legitimate and truthful commercial information.

1. The standard of review [for the present case] is the weighing of the First Amendment and

governmental interests, the effectiveness of the speech restriction in promoting the

underlying valid regulation, and the extent of any incidental restrictions on legitimate

forms of commercial speech. Under this test the court needs to balance the

Commonwealth's asserted interest in the prevention of employment discrimination and

the job-seeker's interest in being able to fully, yet truthfully, utilize the press to

“advertise” himself or herself in that manner and by such terms as he or she believes will

be most efficacious in producing the desired result. The analysis involves analyzing the

relationship of the speech involved here to the commercial activity subject to regulation.

a. The Commission asserts that permitting job-seekers to specify their race or sex,

for example, will provide the prejudiced employer with an easy means to

perpetrate discriminatory hiring.

i. We do not believe that such an advertisement provides an employer so

disposed with any easier or better tool for discrimination than does a

resume or job interview.

b. The Commission apparently assumes that only the prejudiced employer will react

to or affirmatively utilize the “objectionable” characteristic information in these

ads.

i. This overlooks the possibility that a fair-minded employer may react in the

negative to any ad that specifies any race, sex, religion, age or national

origin. Such an employer may seek to avoid hiring individuals who are

themselves prejudiced.

ii. The Commission overlooks a legitimate use of “Equal Opportunity” and

“Affirmative Action” employers who may use [the information in such

ads] to find more minority applicants to interview for a position.

c. Section 5(g) impedes the flow of greater amounts of legitimate commercial

information by banning ads which “in any manner” express any of the

“forbidden” characteristics.

i. A job-seeker's name is, beyond doubt, a completely legitimate item of

information in a situation-wanted ad. Yet Section 5(g) is obviously

offended in one or more respects by, just as examples: Svenson,

Weinstein, Tanaka, Kowalski, Garcia, O'Brien, or Schmidt. Most given

names, such as Dennis and Joyce, leave little more doubt as to gender than

do the titles “Mr.”, “Mrs.”, and even “Ms.”.

d. Section 5(g) would suppress vital information relating to job qualifications.

i. A person's alma mater, can inform an employer of the quality of education

a job-seeker has had. Yet 5(g) would prohibit the inclusion in an ad of ex.

“North Catholic High School” or “Oral Roberts University”.

ii. For indicating race, “Morgan State” or “Grambling” would offend 5(g).

iii. The graduate of the all-female Carlow College would transgress 5(g) by

advertising that fact.

iv. One with as very much experience as 30 or 55 years may find that this

excellent qualification cannot be advertised because it also expresses a

good indication of relative age.

v. 5(g) would require the “Salesman”, “Body man”, “Handyman”, and

“Cleaning Lady” to find some other way to denote their chosen occupation

without connoting gender. This is Orwellian in nature.

C. Religious Defenses: none

D. Concurring/Dissenting Opinions: none

E. Subsequent History: Com. v. Pittsburgh Press Co., 396 A.2d 1187 (Pa., 1979).

F. Key Issues Raised: 2

Rweyemamu v. Commission on Human Rights and Opportunities 98 Conn.App. 646 911 A.2d 319 (employment)

A. Overview: Majority opinion by Peters, J. Plaintiff appealed from a dismissal of his administrative complaint against diocese. The superior court, Howard T. Owens, Jr., dismissed the appeal, and the plaintiff appealed. The appellate court affirmed judgment.

B. Affirmative Religious Claims:

1. Disparate Treatment Claim [Connecticut 46a-60 (a)]: He claims that he was discriminated against on the basis of race, ethnicity, national origin, and ethnicity. Claim that the defendant improperly invoked a ministerial exception to administrative jurisdiction because such an exception has never been recognized under CT law. Court affirms the judgment of the trial court.

a. A court, such as an administrative agency, that “exercises a limited and statutory jurisdiction” doesn’t have the jurisdiction to act “unless it does so under precise circumstances and in a matter particularly prescribed by the enabling legislation.”

i) Applies not only to courts, but also to administrative agencies, which must act within their statutory authority (Figuroa, 675 A.2d 845).

ii) The court’s starting point for declining jurisdiction to the commission based on the ministerial exception is the affidavit the plaintiff presented. He alleged he was a Black African from Tanzania employed as a priest for over ten years and a white deacon who was less qualified had been employed in his place.

iii) The commission, upheld by the trial court, dismissed the plaintiff’s complaint for lack of subject matter jurisdiction and based it on its recognition that a ministerial exception is recognized by the courts and commission with respect to those employed in religious institutions in such capacity. The trial court added that it was without jurisdiction to interfere in the matter.

iv) This issue is one of first impression to appellate courts. The appellate court recognizes that both the CT statute and the federal statutes prohibit discrimination in employment, and the federal statute is often referred to when interpreting the CT statute.

v) As observed by the U.S. Court of Appeals for D.C. “the ministerial exception is judicial shorthand for two conclusions: the first is that the imposition of secular standards on the church’s employment of its ministers will burden the free exercise of religion; the second, that the state’s interest in eliminating employment discrimination is outweighed by a church’s constitutional right of autonomy in its own domain.” (Equal Opportunities Commission, 83 F.3d 455).

vi) The Ministerial Exception has a role in protecting constitutional rights. “…Control of ecclesiastical matters would easily pass from the church to the state. The

state would then be without power to decide for itself…” (McClure, 460 F.2d 553).

vii) Following the above precedents, the court is persuaded that that the administrative agency must apply the ministerial exception CT’s employment discrimination statutes.

b. Appellant filed to make prima facie case b/c he did not present any evidence that decision-maker knew of his religion when decision not to hire was made

i) Evidence in record all to the contrary

Interviewer testified she did not tell decision-maker the appellant was Orthodox Jew

Decision-maker testified he was unaware of appellant’s religion until EEOC notice filed

Decision-maker said he rescinded offer b/c he believed he recalled meeting and disliking appellant

,ii) Irrelevant that decision-maker’s recollection of prior meeting is demonstrably incorrect. That his memory was faulty does not establish that he knew of appellant’s religion.

C. Religious Defenses:

1. Constitutional Defense, Ministerial Exception: Discussed above because the affirmative claim is the CT employment discrimination statute and the main issue is whether or the statute applies the exception to administrative agencies.

2. RFRA Defense: The plaintiff claims federal case law should not establish a ministerial exception in this case because RFRA sets aside the exception.

a. The plaintiff argues that the federal case law shows that “congress had impliedly amended the anti-discrimination statutes, such as the Age Discrimination in Employment act. to make them enforceable without regard to the free exercise clause of the first amendment.” (Hankins, 44 F.3d) The plaintiff asks the Court to apply the reasoning in Hankins to the CT statute, claiming it has the same effect as the RFRA. The court disagrees because the plaintiff’s claim was merely and “abstract assertion,” not an analysis that the Supreme Court has held necessary.

b. The court also attempted to ascertain the defense’s merits by examining its text and legislative history, but it is persuaded the argument has not merit.

i) This was based on the distinctions that federal courts made between religious practice and religious belief.

ii) The court concludes that since the practices of religious institutions are a form of

“religious belief,” the language of the subsection does not allow a strict scrutiny test to pertinent subsections of the CT employment discrimination statute.

D. Dissent/ concurrence: NONE

E. Subsequent History: certification denied by 916 A.2d 51, cert denied by 169 L.ED. 2d 144, denied hearing by 169 L.Ed. 2d 792

F. Key Issues Raised: #5

School District #11 v. Umberfield , 512 P.2d 1166 (Employment)

A. Overview: The District Court of the County of La Plata, per William S. Eakes, J, reversed the order of the civil rights commission, which had ruled for the employee. The Commission appealed. The Court of appeals, Smith, J, in a plurality opinion (concurrence by Coyte, J.) found for the employer.

B. Affirmative Religious Claims:

1. Failure to Accomodate (Colorado Anti-Discrimination Act, C.R.S. 1963, 80-21-1 et seq): Employee and the commission seek to reverse district court’s decision that the commission’s conclusion of religious discrimination was not supported by evidentiary findings. Court affirms the district court’s decision for the employer. (Another issue in the case is whether or not the commission had the authority to hear the case since the employee did not appeal the school board’s decision, but I will not discuss this issue because I consider it procedural.)

a. Agrees with district court that the district court’s that the factual findings of the commission do not support its determination.

i) A regularly employed teacher is far better for the students’ progress than a substitute teacher

ii) other teachers employed by the schoolboard were “were disrupted by the fact that the complainant was able to violate his employment contract so blatantly.”

iii) Court concluded that these findings clearly support the conclusion that the firing was an unfair labor practice.

C. Religious Defenses: NONE

D. Concurring (Coyte, J) (Agress that the discharge did not constitute discriminatory or unfair labor practice. He disagrees on procedural issues.)

E. Subsequent History: Umberfield v. School District #11. 522 p.2d 730

F. Key Issues Raised: #3

Sedalia School District #200 v. Missouri Com’n on Human Rights, 843 S.W.2d 928 ( 1992 Mo. App) (Employment)

A. Overview: Judge Donald Barnes from the Circuit Court of Pettis County reversed a decision of the Missouri Commission on Human Rights on hardship grounds, where the Commission found that appellant school district had violated employee’s rights under Mo. Rev. Stat. ß 213.055.1(1)(a) (1986). Missouri Court of appeals affirmed the circuit court’s decision, finding that the school district had met its burden to accommodate the employee. (Majority opinion; Harold L. Lowenstein, C.J., with Berrey and Spinden, J.J.)

B. Affirmative Religious Claims:

1. Reasonable Accommodations (Missouri employment discrimination law, § 213.055.1(1)(a), RSMo 1986): School district employer refused to accommodate employee’s religious beliefs when she said that in her job as a translator for deaf students, her religious beliefs as a member of the United Pentecostal Church prohibited her from translating obscene language. Court affirmed lower court’s decision and found for the school district.

a) State claim under federal analysis: Missouri courts have given deference to federal cases reviewing similar claims under federal law.

i. McDonnell Douglas Analysis for federal claims

Employee and Commission meets all three prongs of the test when they establish 1) a bona fide belief that compliance with an employer's requirement would be contrary to his or her religious belief, 2) the employer has been so notified, and, 3) the employee was discharged for failing to comply with the requirement.

b) Burden Shifting: School district met its burden of showing that it could not accommodate employee’s religious beliefs without undue hardship.

i. Evidence of hardship when attempting to accommodate—court adopts the Circuit Court’s legal conclusions stated below:

Circuit Court stated that it would be a hardship to have another interpreter come in to a classroom and "interpret the materials or presentations, deemed by complainant to be offensive – an obvious hardship to other instructors, other students and the practicability of presenting a coherent instructional program. Such a motion would require lectures to be halted, not to mention dramatic presentations, film presentations, etc."

Circuit Court concluded that the policy guidelines that prevented employee from being able to digress from literal translations was not discriminatory, nor was it aimed at employee.

Circuit Court found that the school district's guidelines constituted "sound and universally accepted concepts in deaf education."

c) Commission’s decision was unreasonable: Court looks at the Commission’s decision to see “whether the Commission, after detached consideration of all the evidence before it,

could reasonably have made the findings and order, whether the decision is arbitrary, capricious unreasonable or an abuse of discretion." Midstate Oil v. Mo. Com'n on H. Rights, 679 S.W.2d 842, 846 (Mo. banc 1984).

i. Best interests of deaf students: Requiring anything but a literal translation for deaf students would be compromising their education. A policy of literal translation was in the best interests of students, and was reasonable in light of the circumstances.

Potential arbitrariness: Employee was not able to give a list of words that her religious beliefs would prevent her from translating literally. School would be completely subject to employee’s ad hoc, case specific determinations of what she could and could not translate.

Impossible to accommodate: It would be too difficult and detrimental to students’ education for the district to have to move other interpreter’s around on a case by cases basis just so employee interpreter didn’t have to interpret potentially obscene words. Placing employee in a classroom where her skills are under used just so she doesn’t have to translate certain words is unreasonable. Having an interpreter pre-censor work with parents would create a huge burden. Hardship and more than a de minimis cost are demonstrated by the District.

Further meetings to discuss accommodations not necessary: After the District concluded that there was no way to accommodate employee’s religious beliefs, no further meetings were necessary because they would not have yielded any feasible solutions.

Education as goal: The court cites the nature of employer’s business, education, including education of students with various disabilities, as a significant factor. The task of education is difficult in itself, so the burden of requiring the district to stop classes when employee can’t translate something, or brining in even more translators, is a burden that outweighs any burden on employee.

School district’s policy of literal translation is reasonable: policy has legitimate reason for requiring literal translation: “means of giving students social and educational skills and awareness, and was applied here without discrimination.”

C. Concurring/Dissenting Opinions

1. Concurring Opinion, Spinden:

a) Real issue: issue is not whether the district’s policy is reasonable or not, which the court spends too much time discussing. Real issue is whether the district took adequate steps to accommodate employee’s religious beliefs.

2. Dissenting Opinion, Berrey:

a) Religious accommodations: the district did not attempt to accommodate employee’s religious beliefs. Would affirm the Commission’s finding that employee’s rights were violated.

i. District did not meet its burden because it did not show that it made any attempt at all to accommodate, let alone an attempt in good faith.

ii. District refused to meet with employee to discuss accommodations, which is contrary to the policy behind the state law.

iii. District did not take ANY initial steps to deal with employee’s concerns.

iv. Court must uphold the Commission’s decision if it is supported by substantial evidence. There is no evidence that the district took ANY steps to accommodate employee’s religious concerns.

Court must construe evidence in favor of the administrative body.

It is outside the duty of this Court to “substitute its judgment for that of the Commission.”

“If the school district fails to propose an accommodation, it must accept [employee’s] proposal or demonstrate that her proposal would cause the district undue hardship.”

D. Subsequent History: Denial of appeal: Appellant's Motion for Rehearing and/or Transfer to Supreme Court Denied September 1, 1992.

E. Key Issues Raised: #3

Shuchter v. Division of Civil Rights , 285 A.2d 42 (1971)

A. Overview: The Division of Civil Rights dismissed complaint for lack of jurisdiction and the Superior Court, Appellate Division affirmed.

B. Affirmative Religious Claims:a. The word “creed” as used in the LAD includes beliefs other than those relating to

a man’s religion. (N.J.Const. (1947), Art. I, par. 5)i. Court reviews history of civil rights legislation dating back to 1884.

1. Determining that the word “creed” contemplates the holding of certain beliefs with respect to religious principles.

2. Recognizes that the word “creed” has more recently been accepted to meanings other than those of a religious context.

a. Court does not find it to be their duty to expand a legislative enactment because of new trends in the definition of a word.

C. Religious Defenses: NoneD. Concurrence/Dissent: NoneE. Subsequent History: NoneF. Key Issues: Five – this case could go either way, they are trying to claim the protections

of a religious organization even though they are not in fact a religious based organization

Spellacy v. Tri-County Hosp ., 1978 WL 3437 (Pa. C.P. 1978).   ( Employment)

A. Overview: Majority opinion by J. Kelly, granting summary judgment for ER.

B. Affirmative Religious Claims:

EE, a part-time admissions clerk with the Defendant Tri-County Hospital, refusing [to] admit

patients who sought abortions (as part of her responsibilities as outlined by the court), alleging

that she was discharged from her position as because of her refusal to ‘paticipate in or cooperate

in’ abortions or sterilizations procedures.

1. EE was not discharged from her position as because of her refusal to ‘paticipate in or

cooperate in’ abortions or sterilizations procedures because was not required to ‘perform,

participate or cooperate in’ any abortions or sterilizations, nor was she ever present or

required to be present during any abortion or sterilization procedures.

2. Plaintiff as a matter of law does not come within the protection of § 955.2(a) of the

Pennsylvania Human Relations Act. The Regulations Regarding Discrimination With

Respect to Abortion and Sterilization, 16 Pa. Code Ch. 51, promulgated by the

Pennsylvania Human Relations Commission specifically defined the classes of

employees statutorily protected to refuse certain duties for moral or religious reasons

pursuant to § 955.2(a) of the Act.

a. EE was not an employees that can be considered to be a part of the protected class

under the Act. She is not [one] who either ‘perform[s] or participate[s]’ in

abortions or those who ‘cooperate’ in abortions.

3. The Pennsylvania Human Relations Act establishes parameters limits protection to only

those ‘perform, participate or cooperate’ in abortion or sterilization procedures. Thus, EE

is excluded from the scope of the Act's protection and the employer owes to them no duty

to accommodate.

4. Alternatively, even if there did exist a duty to accommodate EE, ER has made such an

accommodation by offering to Plaintiff alternative employment opportunities, in excess

of the requirement of federal law as explained in Hardison.

a. Here, the hospital made extensive efforts to achieve an accommodation, but EE

refused its repeated offers of alternative employment.

C. Religious Defenses: § 955.2(a) of the Pennsylvania Human Relations Act (see above).

D. Concurring/Dissenting Opinions: none

E. Subsequent History: none

F. Key Issues Raised: 3

Vanderburg v. NC Department of Revenue , 168 N.C.App. 598 (2005) Overview:

Majority opinion by Judge Tyson affirming the State Personnel Commission’s decision to overturn the Department of Revenue’s (DOR) dismissal of probationary employee.

Affirmative Religious Claims

(i) Harassment

Disparate treatment

Not reviewed by appellate court

(ii) Retaliation

Disparate treatment

Not reviewed by appellate court

(iii) Religious Discrimination

Disparate treatment (Title VII)

Brief Description of claim

Terminated because of religious beliefs

Result:

Trial court’s order affirming the Commission’s Final Decision is affirmed

Presentation of argument:

Disparate Treatment (Title VII)

McDonnell Douglas Analysis

● Choice of prima facie case: court adopted the standard of the North Carolina Supreme Court in Gibson, rule that a PF case of discrimination may be established in various ways; (1) member of minority group, (2) qualified (3) discharged, (4) replaced with person not a member of minority group.

● Application of PF: Undisputed that elements met

● Asserted Legit Reason: Dismissed for unsatisfactory job performance in the form of insufficient productivity be (1) creating conflict with his supervisors, (2) not performing share of workload, (3) disorganized and missing files, (4) overall deficient performance.

● Pretext: adequately performing his duties; issues arose after requested and received permission to pursue secondary employment as associate pastor; religious items removed from his cubicle, while other co-workers continue display of similar religious object; was reminded probationary employee could be fired “for any reason;” caseload increased substantially; was told several times he did not have a future with NCDOR

● Court found substantial evidence to support the Commission’s finding that plaintiff was dismissed under discriminatory motives.

Concurring opinion

Judge Wynn concurring

● (standing issue)

● Religious Discrimination

• Emphasizes that the issue on appeal concerns a matter of discrimination based on religious practices not constitutionally protected religious freedoms.

• Notes, In Gibson, the NC SC set out a four-step test to establish a prima facie case and upon applying that standard the same result is reached.

Subsequent History:

● Direct History

Treatment of the case on appeal: affirming trial court’s decision to uphold Commission’s reinstatement of DOR employee

Van Osdol v. Vogt (908 P.2d 1122, 69) (Employment)

A. Overview: The district court, per Judge William P. Demoulin, dismissed the Title VII claim and certain intentional torts and negligence claims as barred by the First Amendment. The court of appeals affirmed. On Cert. review, the Supreme Court decision by Kourlis, J. (Plurality by Mullarky, J.) affirmed the lower court’s opinion and remanded with instructions.

B. Affirmative Religious Claims:

1. Retaliation Claim (Title VII): Claims UCRS violated Title VII when it revoked her license and reversed its decision to allow her to open her own church . She claims she was retaliated against for informing the Ecclesiastical Committee minister had sexually assaulted others . Court affirmed and remanded with instructions lower courts’ ruling that the claims were precluded by the first amendment of the United States Constitution.

a. Case involves conflict between Title VII I and the First Amendment

1. Case doesn’t really discuss the claim except to the extent that it fits the requirements to be barred by the First amendment, so see religious defenses argument below.

C. Religious Defenses:

1. First Amendment

A. Precludes jurisdiction over her Title VII claims

i. Case involves conflict between Title VII I and the First Amendment

a. Under Title VII Sexual Harassment is considered sexual discrimination.

b. Section 702 exempts religious institutions from the requirements of Title VII in the area of religious discrimination. Legislative history shows consideration of blanket exception, but decided on narrower exception.

c. The first Amendment states that congress can’t make laws regarding the establishment of religioin (the Free Exercise Clause and the Establishment Clause

d. Each claim has to do with whether or not the church has the power to revoke her minister license and change their decision allowing her to open a new church. This means that each claim directly related to whether or not the church can decide to employ her in a ministerial position.

e. Court concludes that the First Amendment does bar Title VII to this case because the “choice of minister is a unique distillation of a belief system. Regulating that choice come perilously close to regulating belief

f. Protected under both Establishment and Free Exercise Clauses

i. Balancing test-> government actions that substantially burden a religious practice have to be justifies by a compelling state interest (Sherbert). Courts have to weigh interests and also determine if gov. interest can be achieved through an alternative, less restrictive means. Choice of minister is protected from review by state courts (Rayburn and Minker).

ii. Allowing a pretextual hearing on the choice of minister would, therefore, not get the court anywhere because it would have to invoke the first amendment once it has to analyze the doctrinal reasons.

iii. Does not bar all cases, such as hostile work environment cases.

g. Court decides it would be impossible to apply Title VII to this case without violating the beliefs of the church. (Smith said it is not the court’s job to decide what a belief system should be.)

1. Fraud or collusion Exception

A. No exception exists in this case

i. Inherently ecclesiastical nature of the choice of minister logically inconsistent (Milivojevich states allowing the arbitrariness exception would be inconsistent with the fact that the court must accept the church’s decision on ecclesiastical matters)

E. Subsequent History: None

F. Key Issues Raised: #5

Weishuhn v. Catholic Diocese of Lansing, 756 N.W.2d 483 (Mich. App. 2008).

A. Overview: The Circuit Court, Genesee County, Archie L. hayman, J., granted church summary

disposition on Weishuhn’s WPA claim and denied summary disposition on CRA claim. The Court of Appeals vacated the Circuit Court’s judgment and remanded.

B. Affirmative Religious Claims: Treatment; (Whistleblowers’ Protection Act, Civil Rights Act); Former teacher alleges

that the church that had employed her violated the WPA and the CRA with her retaliatory termination; remanded (for consideration of ministerial exception below).

C. Religious Defenses: Constitutional defense; (federal Constitution); Defendant wishes to invoke ministerial

exception; remanded.o The court lays out framework for the Circuit Court to use in determining whether

or not Weishuhn’s position and function were such that she was a ministerial employee. If the trial court finds that Weishuhn is a ministerial employee, her claim should be dismissed. If not, further proceedings may be necessary.

D. Concurring/Dissenting Opinions: none

E. Subsequent History: none

F. Key Issues Raised: 5

Williams v. Commission on Civil Rights , 260 A.2d 889 (Employment)

A. Overview: Majority opinion by Klau dismissing the plaintiff’s complaint. This Civil Rights Commission dismissed the complaint and the employee appealed.

B. Affirmative Religious Claims:

1. Commission mad its decision based upon the right of an employer to establish a regular work week.

A. Based decision on order from a Michigan civil rights commission rejecting a claim on similar facts and a press release that there was a similar holding by the federal equal employment opportunity commission. “Both orders relied upon the right of an employer to establish a regular work week applicable to all employees notwithstanding any possible effect on religious observance of the employees.”

i) Therefore, the defendant commission in relying on this “did not act illegally arbitrarily or capriciously.” (The language of the statute)

B. Court decides the statute is silent on the procedure to be followed in a case such as this where the investigator does not find a “reasonable cause” for finding an unfair employment practice.

C. Plaintiff cites Sherbert (374 U.S. 398, 83 S.Ct.), but the case did not compel a private employer to accommodate his employee’s religious need. This case centered on the denial of employment benefits because of unwillingness to work Saturdays for religious reasons; not on a firing for refusing to work Saturdays.

D. Court says that it is clear from the commission’s file that she wasn’t dismissed because of her religious creed, but because of her refusal to work shifts. Therefore, the dismissal of the complaint was not arbitrary, illegal, or capricious.

D. Concurring: NONE

E. Subsequent History:

F. Key Issues Raised: #3

World Peace Movement of America v. Newspaper Agency Corp., Inc.,

879 P.2d 253, Utah, 1994. (Public Accommodation)A. Overview: Majority opinion by Justice Durham affirmed the district court's order

dismissing the civil rights action but vacated its order awarding expenses to NAC.

B. Affirmative Religious Claims

1. Treatment Claim (Utah Civil Rights Act – U.C.A. §§ 13-7-1 - –4 ): Claim that advertisement was unlawfully rejected b/c it might offend religious beliefs of the Agency, Deseret News, and/or some of the readers of Deseret News. Claim denied (Defendant’s motion for summary judgment under ADA).

i) Alleged discrimination was based on the religious content of an ad and religious message that depicted Jesus as dark-skinned.

o Result:

Affirm the District Court’s order granting summary judgment in favor of the Defendant

Claim Denied (Defendant’s motion for summary judgment under ADA)

o Court Arguments:

The court does not address the parties’ Constitutional arguments. The Court rationalized this by stating that that it “is a fundamental rule that the court should avoid addressing constitutional issues unless required to do so”. The Court finds that the Plaintiff does not have a claim under the Utah Civil Rights Act and therefore the court does not address the parties’ constitutional arguments.

The Court argues that the operative language in the case is “all persons…are entitled to full and equal…services…without discrimination on the basis of…religion” (U.C.A. §13-7-3). The court notes that the Utah Civil Rights Act generally prohibits businesses and other entities from discriminating against suspect classes which include religion. The court argues that while this may be true, a publisher may discriminate on the basis of the content even when the content overlaps with a suspect class.

The Court’s Bottom Line: The Utah Civil Rights Act does not prohibit “discrimination against religious beliefs, ideas, or sentiments, apart from the persons who hold and profess them.” The Utah Civil Rights Act prohibits discrimination against the denial of services to a person on the basis of their religion, but not on the basis of content.

Application to the Facts: The Defendant’s rejected the content of the Plaintiff’s advertisement. The Defendant’s would have refused to print this advertisement had the advertisement been offered by any person of any religion.

C. Religious Defenses: None

D. Concurring/Dissenting Opinions

1. Concurrence: Zimmerman, C.J. and Stewart, Associate C.J., Concur

2. Concurring in Part and Dissenting in Part Opinion (Russon joined by Howe)

a. Concurring with majority except in section two

b. Dissenting from majority that the term “expenses” includes attorney fees

E. Subsequent History: None

F. Key Issues Raised: #2