Original photo by eye2eye (flickr)

The Workplace Prof Blog tipped off this story in the National Law Journal about the ongoing litigation between three former law professors at the Ave Maria School of Law and the school’s founder and financier, Tom Monaghan (the Domino’s guy).

The lawsuit has been going on for over two years now, with the professors claiming they were fired for voicing concerns over the legality of uprooting and moving the ABA-accredited school to Florida.

Now Monaghan has filed a motion to dismiss the case using what some see as a novel approach.  From the NLJ:

In the latest twist to the two-year-old suit… Monaghan… filed a motion last month claiming that the law professors are “ministerial.” Therefore, he argues, because the school is a religious institution, the administration over these minister-professors is exempt from civil trial court under the “Establishment and Free Exercise of religious clauses of the First Amendment.”

Monaghan also claims that the institution is eligible for “ecclesiastical abstention,” requiring courts to “abstain from inquiring into, or interfering with, governance of the religious institution.”

Seems crazy, right?  You’d think there’d be no support for a position like that, but it turns out that in cases where professors – law schools included – are actual ministerial employees, ecclesiastical abstention has been a decent defense.  The NLJ article mentions McDonough v. the Catholic University of America (83 F.3d 455 (D.C. Cir. 1996)) - where a nun/law professor’s sex discrimination case was thrown out as a ministerial matter outside of the court’s purview.  And Monaghan’s motion points to various sections of the Catholic canonical law regarding treatment of university faculty as a sign that the courts should stay away.

The difference here, of course, is that none of the professor plaintiffs are actual clergy.  Instead, Monaghan argues that if their jobs require them to address some theological issues related to their specialty (which Canonical law requires), they are ministers enough for the court to abstain from hearing the case. 

The McDonough court framed the ministerial exemption pretty broadly, actually:

[T]his circuit and a number of others have long held that the Free Exercise Clause exempts the selection of clergy from Title VII and similar statutes and, as a consequence, precludes civil courts from adjudicating employment discrimination suits by ministers against the church or religious institution employing them.

***

The ministerial exception has not been limited to members of the clergy. It has also been applied to lay employees of religious institutions 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….”  If their positions are “important to the spiritual and pastoral mission of the church,” they “should be considered ‘clergy.’”

(Citations Omitted)

Everything I’ve read about the motion sort of frames it as a bizarre stalling tactic (the attorneys for the professors certainly thinks it is), but if the standard in McDonough is applied, then I think Ave Maria at least has a solid argument here.

The U.S. Equal Employment Opportunity Commission has concluded an investigation of racial discrimination claims made by black Mississippi state troopers. The investigation spanned several months and resulted in the agency finding in favor of the state troopers.

The EEOC’s report cited discriminatory practices by Mississippi’s Department of Public Safety in hiring, assignments, demotions, discharges and discipline. There was also evidence of a hostile work environment. 

The way this works is that the EEOC issues a recommended conciliation program, and the employer (the Highway Patrol, in this case) has some time to make counter-proposals. 

But State Rep. George Flaggs (D-Vicksburg) doesn’t want to wait.  According to the Sun Herald, Rep. Flaggs issued a statement urging the state’s governor, Haley Barbour, to step in and resolve the racial discrimination problems cited by the EEOC:

[The] lawmaker has asked Gov. Haley Barbour to “step in immediately” to help resolve the racial discrimination problems cited in a federal report on employment practices at the Mississippi Highway Patrol.

[Rep. Flaggs] issued a statement Thursday in which he also urged Department of Public Safety Commissioner Steve Simpson to freeze hirings and promotions at the patrol “until they can resolve the issues in the complaint.” Flaggs is chairman of the House appropriations subcommittee overseeing the Department of Public Safety’s budget.

Well, that flag probably doesn't help...

When asked about the complaint at a news conference, Gov. Barbour said that he had not seen the EEOC report. He also commented that the complaint strikes him as “peculiar,” because the troopers didn’t file the original EEOC charge; the Mississippi chapter of NAACP did.  He said he’s never heard of an EEOC case “without an injured party.”

Barbour has not stepped in, and doesn’t want to.  According to the Sun Herald, his office is waiting because the Department of Public Safety is “willing to investigate it.”  The NAACP disagrees.  From the article:

Derrick Johnson, president of the state NAACP, said the troopers had approached Simpson, who’s been DPS chief since April 2008, months before the complaint was filed. Johnson said Simpson didn’t make an effort to address the claims, which date back three years, until it was clear the troopers were going to file an EEOC complaint.

In December 2008, Simpson formed an independent panel of three prominent attorneys to investigate the claims, but the troopers never met with the committee.

“The only reason why we went through this process is that DPS would not respond,” Johnson said. “They’re stonewalling.”

Among other things, the EEOC recommended recommended that the state of Mississippi pay $1.5 million to the affected troopers, revamp its promotion system and implement annual racial diversity training for all personnel.

The Equal Employment Opportunity Commission recently opined that “an employer violated the Americans with Disabilities Act when it required employees to undertake a health risk assessment (“HRA”) as a condition of participating in the employer’s group health plan.” The case the EEOC based its informal opinion letter on involved a county that had implemented an HRA which included answering a short health-related questionnaire, taking a blood pressure test, and providing blood for use in a blood panel screen. Employees declining to participate in the program (and members of their families) were ineligible for coverage under the employer’s self-funded health plan.

The EEOC, in forming their opinion, distinguished between disability-related inquiries and medical examinations that are job-related and consistent with business necessity and voluntary wellness programs:

[O]nce employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. The EEOC determined that requiring all employees to take this HRA that includes disability-related inquiries and medical examinations as a prerequisite for obtaining group health coverage does not appear to be job-related and consistent with business necessity, and therefore it would violate the ADA. …

 

A wellness program is considered voluntary only if employees are not required to participate and are not penalized for non-participation. With regard to the HRA, an employee’s decision not to participate resulted in the loss of the opportunity to obtain health coverage through the employer’s plan. Thus, even if the HRA could be considered part of such a wellness program, the program would not be voluntary because individuals who do not participate in the assessment are denied a benefit (i.e., they are penalized for non-participation).

 

In fact, one of the chief inspirations for this blog was Gary Skoning‘s annual “Wacky Employment Cases” reports published in the National Law Journal.

For months, though, we’ve been busy with important legislation and constant economic changes that required seriousness and professionalism. That, and we had a complete lack of content.  I  can’t remember the last time a wacky story crossed my desk, and I was honestly starting to worry.

Then the ABA Journal drops a bomb like this:

The federal agency in charge of enforcing anti-discrimination laws has taken up the cause of a Texas strip club waitress allegedly illegally fired due to her age.

Some stories just write themselves.

According to the Houston Chronicle story cited by the Journal, 56-year-old Mary Brassi had worked for AHD Houston, which owned 5 area strip clubs (an impressive amount for any city), since 1993.  She was earning near six figures waiting tables at a club called Cover Girls.  She was popular with the customers.  She sold a lot of drinks.  But for all her success, according to the EEOC, she got called “old” by her bosses, and teased about menopause and Alzheimer’s.  Then the club started bringing in “younger women” and giving them the prime shifts.

And then in 2006, they let her go.  Just like that.  Imagine – a 15-year veteran of the Houston live adult entertainment community, tossed out into the blaring sun and uncomfortable gravel parking lot like a best man who got too “handsy”.  Wondering if she’d get to serve $13 bottles of beer to distracted drunk guys with expense accounts ever again.

Refusing to go down quietly, Brassi brought her case to the EEOC and the agency investigated.  Last week, they filed suit on her behalf.   And this, of course, is the moral of the story: it doesn’t matter who you are, or what your job is; you can always go to the EEOC for help.  And it doesn’t matter what sort of business you’re in; if you employ people, the EEOC can always come knocking.  That’s their job, after all.

Although, if recent events are any indication, the EEOC may be superseded by karma this time around.   According to the Chronicle, Brassi (now 59) is waiting tables for a competitor.

As for Cover Girls?  Burned to the ground.  In 2007.

EEOC v. Nordstrom, Inc.

According to the Puget Sound Business Journal, the high-end department store agreed to pay nearly $300,000 to 10 employees in two of its south Florida stores because of some pretty serious derogatory comments made by an alterations manager:

In the suit, the EEOC alleged that an alternations department manager said “she hated Hispanics and that Hispanics were lazy and ignorant.” The same manager, the EEOC alleged, made remarks such as “I don’t like blacks,” and “you’re black you stink.”

The EEOC’ claimed that the employees had complained to Nordstrom about the alleged racist remarks, but that nothing was done.  A Nordstrom spokesperson said that an investigation was conducted, but that no evidence of discrimination was found at the time.

Skilled Healthcare Group, Inc.

The EEOC sued Skilled Healthcare, which runs nursing facilities throughout the southwest, after multiple claims were filed that the company refused to let employees speak Spanish, even while letting other bilingual employees speak Tagalog and other languages.

According to the L.A. Times, the EEOC’s lawsuit claimed that employees were warned of punishment or termination when supervisors heard them speaking Spanish, even to patients who did not speak English.  One monolingual Spanish-speaking employee – the first to file a charge against Skilled Healthcare – was fired when he couldn’t pledge to speak only English. [Ed. Note - how did he get hired in the first place?]

Skilled Healthcare said that it had never instituted an English-only policy, even when the first charge was filed and the business was under old management.   The company settled the lawsuit for $450,000.

Cautionary Tales

The thing that makes both of these suits worth reviewing is the companies’ statements regarding the settlements.  In both cases, the company denied anything happened, and both companies claimed their internal processes showed no sign of discrimination.  They both said the only reason settlements were reached was because the cost of litigation outweighed the cost of settlement.

As a result, however, each company agreed to pay well over six-figures to their employees and institute discrimination training programs.  I’d venture a guess that they’re both fast-tracking legal reviews of their hiring and employment practices as well.

These last two items, anti-discrimination training and employment practices review, could have been done without EEOC intervention.   They are both preventative measures that, if done years ago, could have saved these companies the cost of settlement, and more importantly, the legal fees in defending the cases before the EEOC.

There’s no telling whether these particular situations could have been avoided by doing the things both of these companies are now doing after-the-fact.  But as the recessession continues and employers are looking for places to save money, it’s important to remember the true costs of not taking preventative measures now.

On the contrary. 

Amidst the gradual demise of this country’s economic infrastructure, legal and financial institutions have been faced with historic downsizing efforts.  The public has been inundated with headlines foretelling salary cuts, layoffs, and disappearing pensions.  As the dust begins to settle, it appears that these mass reductions are widening a gender gap that, up to now, had been slowly closing. 

On March 16, Forbes magazine ran a cover article exposing claims made by Wall Street women that female employees have endured the brunt of downsizing efforts.  According to the article, the financial services and insurance firms have cut approximately 260,000 jobs.  An astounding 72% of these jobs belonged to women, even though women only constituted 64% of the workforce before the economic downturn. 

Many of the ousted female professionals are seeking legal recourse and have recently filed charges with the U.S. Equal Employment Opportunity Commission.  Attorney Douglas Wigdor, who is featured in the Forbes article, currently represents a group of five former managers and rising young stars who claim they were victimized by the cuts.  In the article, Mr. Wigdor describes the cuts as a case of “recessionary discrimination.”

Still, other women with cognizable claims against various financial institutions will not come forward.  There is a concern that in doing so, they will be professionally exiled from the industry once the economy regains its footing.  The Forbes article recounts a 2007 class action settlement, where female employees at Morgan Stanley were given the opportunity to opt-in:

 Alice Hughes, a Morgan Stanley financial adviser in Dallas, talked with several women who declined to participate–and not because they planned to pursue separate claims. “It was just sheer fear,” she says, that even if they kept their jobs they might be excluded from benefits like getting a chunk of business when another broker left the firm. “They’re right,” says Hughes. Moreover, she claims, if they make trouble, “they will be blacklisted from working at any major firm.”

The participants include two attorneys from the famously pro-management law firm Jackson Lewis, a solo practitioner repping unions, and the Organizing Director for the largest health care workers’ union in New Jersey.

Regardless of your particular flavor of EFCA Kool Aid, this one should be a good show.  If anyone is in Jersey this Thursday, check it out.  You can register on their website.

And, if you’re so inclined, let us know what you thought in the comments below.

Joining him at the signing ceremony were, among others, House Speaker Nancy Pelosi, First Lady Michelle Obama, and Lilly Ledbetter herself, who is seen on the video receiving the signatory pen.

The law is intended to reverse the Supreme Court decision, also bearing Ledbetter’s name, that plaintiffs in discrimination cases must bring their claims within 180 days from the initial discriminatory act. Under the newly-signed revision, claimants have 180 days since the most recent discriminatory act. This difference means that employees like Ledbetter, who worked for years without knowing she was being paid unequally, have 180 days from their last paycheck to file suit.

A couple of important notes about the Ledbetter Act:

• It is not limited to gender discrimination. The law changes the filing limitations in all major antidiscrimination statutes, including the Americans with Disabilities and Age Discrimination in Employment Acts.
• It doesn’t change the amount a plaintiff can recover. That is still limited under most statutes to damages dating 2-years back from the date the claimant files a charge.
• The law is designed to be retroactive, applying to cases initiated anytime on or after May 28, 2007 (the day before the Supreme Court’s decision). What this means for the cases that have been dismissed in the interim, or for Ledbetter herself, in unclear. (Some have suggested that she wins nunc pro tunc. I’m not so sure.) Expect this point to be litigated agressively and soon.

Yesterday, the House voted 250-177 to send the Lilly Ledbetter Fair Pay Act to the President’s desk.  According to the San Francisco Chronicle, President Obama has indicated he will sign the bill tomorrow, making it the first major legislation approved under his tenure.

Named for the Plaintiff in a Supreme Court case the law effectively overturns, The Ledbetter Act alters the major discrimination laws – Title VII, the ADA, ADEA and the Rehabilitation Act – to make clear that each unequal paycheck an employee receives is a new discriminatory act, effectively continuing the statute of limitations for as long as the person is employed or receiving benefits from the company.

The Court had interpreted the original Act’s language, that the statute of limitations started at the time of “the alleged unlawful employment practice,” to mean that an employee had to bring a claim within 180 days of the initial decision to provide them unequal pay.  Which meant Ledbetter, who was tipped off to her unequal pay at 70, months before retirement, was years too late to bring a valid claim. 

Congress’s vote fell mainly along party lines; this was a statute that President Bush had vowed to veto had he seen it last year. 

Republicans are concerned that the change will lead to stale lawsuits that are hard, if not impossible, to defend.  Management-side attorneys are warning their clients that employee records that used to be cleared for shredding will now have to be stored indefinitely.

Proponents of the bill, including most Democrats, women’s-rights groups and organized labor, say the Ledbetter Act will finally provide the right statutory protection to level the playing field with regard to pay.  The view was succinctly summed up by Senator Barabara McKulski of Maryland (the bill’s chief sponsor in the Senate) in the N.Y. Times:

“If you don’t want to be sued, don’t discriminate.”

This early passage of such a controversial bill is heralding a wave of legislation that’s likely to come throughout the year.  Democrats have been holding onto similar bills until a more favorable climate arose for their passage, and have clearly found it in the new President and their increased power in both Houses of Congress. 

The bulk effect of these changes may be a shift of power under U.S. labor and employment law away from business and into the hands of employees and their labor representatives.

The opinion should help both employees and businesses by settling what “opposing” discrimination means in plain, unambiguous language.

[UPDATE: Paul Mollica, of Daily Developments in EEO Law, points out that not everything is so settled:

One issue not resolved by this case ... is whether and how employees must manifest a reasonable belief that they are complaining about a prohibited activity under Title VII.  Here, Ms. Crawford was specifically asked by the employer about harassment, and volunteered facts that few reasonable people would dispute constitute some kind of hostile work environment.  But where the behavior is fuzzier, employees will continue to run into the argument that the conduct they "opposed" -- though possibly offensive -- did not violate Title VII at all, such as the notorious Jordan v. Alternative Resources Corp., 458 F.3d 332, 98 FEP 1400 (4th Cir. 2006) (racial comment by a co-worker -- "They should put those two black monkeys in a cage with a bunch of black apes and let the apes f**k them" -- not harassment).  This area will require some fine-tuning in the future.

Fine tuning, indeed.]

Actually, the case, Crawford v. Metro. Gov’t. of Nashville & Davidson Cty., 06-1595, would never have made it this far if the antiretaliation rules hadn’t been so odd in the first place.

The Backstory

The School District in Nashville and Davidson County, Tennessee was investigating its employee relations director for sexual harrassment.* During the investigation, an HR employee questioned Vicky Crawford about any “inappropriate behavior” she’d witnessed.  Crawford had worked for the District for 30 years.

Crawford answered the question, as summarized by Justice Souter:

[O]nce, Hughes [the Employee Relations Director] had answered her greeting, “‘Hey, Dr. Hughes, what’s up?,’” by grabbing his crotch and saying “‘[Y]ou know what’s up’”; he had repeatedly “‘put his crotch up to [her] window’”…

and did some other things that won’t be restated here.  Suffice it to say that rarely has the word “crotch” been used so recurrently in a Supreme Court decision.  Two other employees recalled similar incidents.

The District acted on all of this information by issuing the Director a formal, verbal reprimand.  Then it fired Crawford and the other two employees for allegedly embezzling money.

Crawford filed a charge against the District, claiming that it retaliated against her for participating in the investigation.  (Go figure.)

The Law

Title VII’s antiretaliation provision makes it unlawful “to discriminate against any … employee[] … because he has opposed any practice made unlawful” by the statute.  Crawford figured that since her comments about the Employee Relations Director got her fired (allegedly – the embezzlement thing never really panned out), she had a valid retaliation case under this section of the law.

But the federal district court told her she was wrong, and the Sixth Circuit Court of Appeals agreed.  Their reasoning was that Title VII’s antiretaliation provision didn’t apply to employees who simply participate in an investigation that was initiated by someone else.  According to the Sixth Circuit, the opposition clause, at it’s called, “demands active, consistent “opposing” activities….”

In other words, if you tell your boss about discrimination, he can’t fire you for it, but if he asks you about discrimination, and you tell him what you know, all bets are off.

Sound crazy?  The Supreme Court thought so.  Writing for a unanimous Court, Justice Souter noted that people passively opposed slavery, as they do capital punishment today.  He then said:

There is, then, no reason to doubt that a person can “oppose” by responding to someone else’s question just as surely as by provoking the discussion, and nothing in the statute requires a freakish rule protecting an employee who reports discrimination on her own behalf but not one who reports the same discrimination in the same words when her boss asks a question.

That’s right.  Freakish.  All nine Supreme Court justices agreed to calling the rule “freakish.”  And Justice Souter wasn’t done.  Later, the admonishment continued:

We find it hard to see why the Sixth Circuit’s rule would not itself largely undermine … the statute’s “primary objective” of “avoid[ing] harm” to employees.  If it were clear law that an employee who reported discrimination in answering an employer’s questions could be penalized with no remedy, prudent employees would have good reason to keep quiet about Title VII offenses…

Analysis

So who won?  Well, Vicky Crawford, obviously (though she still has to try her case – this was an appeal of summary judgment).  But the opinion’s straightforward explanation of what “oppose” means should really help everyone – employees and employers alike.

I know at first blush, a unanimous decision publicly chastizing an appellate circuit for reducing workers rights seems like a loss for employers.  But let’s face it – a simple reading of Title VII shows how off base the Sixth Circuit’s reasonsing has been – how can “oppose” be a terminological separator of those who bring a claim and those who participate in another claim?  That’s the kind of ridiculousness Congress would have to spell out in the statute itself.

But the Supreme Court’s broad view of the opposition clause leaves little room for anyone to misread the statute, or take a case to trial because the law in their circuit is ambiguous at best.  It will require employers to be more careful about validly terminating people who have recently brought discrimination claims, but that’s a pretty small number of situations on the whole.  For those cases where a person was wrongfully retaliated against, the Court’s decision will keep cases out of court by laying such a clear explanation on the table that an employer’s attorney will know early on whether to settle or not.

It’s also important to note that, while the Court’s strong language is partially directed at the Sixth Circuit, this case would not have ever gotten this far had the District’s actions not been so egregious in the first place.

Accusing a 30-year employee of embezzlement, and firing her and her two colleagues while retaining “Dr. Hughes” (who I suspect must have received his “Doctor” title from “the Todd“…) is just bad, bad business.  And these bad business decisions at least partially led to the Court’s pointed language, which now leaves little room for employers to maneuver in court.  This should serve as a cautionary tale for every HR exec during their next conversation with their employment counsel.  I know I’d bring it up.

My last point on why this is good for business in the long run:  people who perform pelvic thrusts at coworkers’ windows are are hardly ever good employees.  Encouraging others to report them will only help the company’s bottom line.  The Court cited an article which concluded that fear of retaliation is the number one limiter of employees’ willingness to bring claims.  So the Court’s opinion should give employers more chances to investigate charges that will eventually lead to a more productive company.

No?  Not buying it?  Well, it was worth a shot.  Honestly, unlike much of employment law, anti-discrimination statutes should probably be followed broadly just because it’s the right thing to do.

*[Ed. Note:  Look, if your "Employee Relations Director" is being investigated for sexual harrassment, you have bigger problems than losing a procedural Title VII case before the Supreme Court.]