Woman fired for IVF will test bounds of Title VII’s ministerial exception

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Ohio Employer’s Law Blog. Yet, despite my management-side tendencies, I call ‘em as I see ‘em, and every now and again a story about an employer’s treatment of an employee outrages me. This is one of those stories.

According to ABC News, an Indiana Catholic church has fired one of its school teachers, Emily Herx, after it learned she was undergoing fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church official told that her attempt to become pregnant through in-vitro fertilization made her a “grave, immoral sinner.” According to the lawsuit, when Herx appealed her termination to the Bishop, he called IVF “an intrinsic evil, which means that no circumstances can justify it.”

If those two statements are true, there should be little doubt that the church fired Herx because of her IVF treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

1. Does Title VII’s prohibition against sex and pregnancy discrimination cover IVF treatments?
2. Does Herx’s employment falls outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

On the first issue, I defer (as will the court) to the 7th Circuit’s 2008 decision in Hall v. Nalco Co., which concluded that Title VII’s pregnancy discrimination amendments cover IVF as a medical conditions related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures, such as IVF treatments.

This case, however, is complicated by the fact that Herx’s IVF is contrary to the doctrine of her religious employer. According to Herx’s lawsuit, she worked as a secular literature and language arts teacher. She is not Catholic, never taught any religion classes, and was not required to complete any training or education in the Catholic faith as a condition of her employment. If there is nothing religious about Herx’s employment or responsibilities, it would seem that her job falls outside the ministerial exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed, this is exactly what the Southern District of Ohio held in a strikingly similar case just last month.

To prevail under the ministerial exception, the Diocese will have to convince the court that all of its teachers, even those of a different faith like Herx, serve as “moral exemplars” for its students. Rick Garnett, associate dean and professor of law at Notre Dame Law School, articulates this argument:

A lot of Catholic schools … every teacher brings the kids to Mass, is involved in sacramental activities…. It’s not just one teacher who teaches religion, religion is pervasively involved. The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision. [Huffington Post]

This case will be fascinating to follow, much more so for the religious implications than for the pregnancy discrimination implications. Whether Title VII protects a woman’s right to undergo fertility treatments is a fairly well-settled issue. Whether a Catholic Church has to provide that right to its secular employees, however, is open to vigorous debate. As someone who thinks that people should not have to choose between having a family and holding a job, I am rooting for Emily Herx.

WIRTW #223 (the “or are you just happy to see me” edition)

This has been a busy week in employment law land, with the EEOC protecting transgendered employees and announcing its long-awaited guidance on the use of arrest and conviction records in employment decisions. Yet, the most tantalizing story of the week comes from Murfreesboro, Tennessee, where an unfortunately-named county employee, Bill Boner, was accused of sexual harassment. The Murfreesboro Post settled on the headline, Boner rejects sexual harassment allegations. Thankfully, jimromenesko.com is all over this story to bring you the unprintable headlines the The Murfreesboro Post rejected (really):

• Boner Says Women Faking It
• Female Workers Say Boner Intimidated Them
• Boner Taking It Hard
• Sticky Situation for Boner
• Boner: “It’s Hard … on My Wife”
• EEOC to Probe Boner

There’s nothing funny about sexual harassment. But, if you can’t giggle about this story, you’re in the wrong line of work.

Here’s the rest of what I read this week:

Discrimination

• Connecticut Supreme Court Stakes Out “Similarly Situated” and Statistical Standards — from Dan Schwartz’s Connecticut Employment Law Blog
• Breakdown of EEOC Guidance on Criminal Background Checks — from Nick Fishman at employeescreenIQ Blog
• The Broad Boundaries of Discrimination in the Workplace — from Dawn Lomer at i-Sight Investigation Software Blog
• Lawsuit Filing: Woman fired after donating kidney to her boss — from Chris McKinney’s Texas Employment Law Blog
• Failure to provide timely COBRA notice, retaliation? No, Sensei!!! — from Eric Meyer’s The Employer Handbook Blog
• Pregnant Employees Make Very Sympathetic Plaintiffs — from Labor & Employment Law Perspectives
• Attendance May be an Essential Function of the Job — from Employment Matters Blog
• EEOC charge against you? It need not turn into a long, costly war — from HR Cafe

Social Media & Workplace Technology

• Facebook Message Leads to Disability Claim — from Molly DiBianca’s Delaware Employment Law Blog
• U.K. Judge Allows Suit to be Served via Facebook — from Ethan Wall’s Social Media Law & Order
• Socializing Over State Lines: Social Media as a Basis for Personal Jurisdiction — from Augmented Legality
• California Provides Social Media Guidance for Financial Institutions — from Socially Aware Blog
• Employer’s Duty to Report Crimes: Employee Using a Personally-Owned iPad for Work Purposes — from From the Sidebar
• 1 In 3 Employers Reject Applicants Based On Facebook Posts — from AOL jobs

HR & Employee Relations

• Is that a whistle in your pocket? — from Walter Olson’s Overlawyered
• An Employer’s Response Guide to Whistleblower Claims — from Jason Shinn’s Michigan Employment Law Advisor
• Your BMI is 35: Should You Pay More For Healthcare? — from The HR Capitalist, Kris Dunn
• Does Smoking Affect Your Employability? — from The Proactive Employer Blog
• Worker’s Suit Claims His Boss Took over His Computer and Placed the F-Word on It — from ABA Journal Daily News
• Valve’s “Handbook for New Employees” leaked, hilarious illustrations included — from The Verge
• Dear Evil Skippy: Is It Illegal To Go Through My Employee’s Desk — from Evil Skippy at Work
• Oops!! Sorry – We Just Laid Off the Entire Staff via Email — from TLNT
• Just Because You Can, Does Not Mean You Should: What Non-Compete Lawyers and Their Clients Can Learn From Bo Ryan and “Transfergate” — from Trade Secret Litigator Blog

Wage & Hour

• Anatomy of a Wage and Hour Complaint — from Casey Sipe’s The Employer’s Lawyer
• Huffington Post Wins Victory In Bloggers’ Compensation Suit — from Wage and Hour Law Update
• Wage and Hour Cases ─ Not Going Away Anytime Soon — from The Wage and Hour Litigation Blog
• A Start-Up Nightmare: the Department of Labor Audit and How to Avoid It — from Social Media Today
• Nail Salon Must Pay Almost $236K After Court Rejects Immigration Defense Under FLSA — from Smart HR Manager
• What Does It Mean to Sell? Ask the U.S. Supreme Court — from Harvard Business Review Blog

Labor Relations

• NLRB issues guidance on new election rules, take effect April 30 — from Mike VanDervort’s The Human Race Horses
• Do You Know Your Rights? – NYT Editorial on NLRB Notice Posting Rule (Guess Whose Side They’re On?) — from Labor Relations Institute
• Senate Rejects Resolution That Would Have Nullified the NLRB’s Revised Election Rules — from Wyatt Employment Law Report
• Labor Board Meets Rising Resistance — from The Wall Street Journal
• Obama’s Renegade NLRB Is Disrupting the Recovery — from U.S. News & World Report
• Micro Union Case Hits Federal Court Of Appeals — from Labor Relations Update

EEOC announces new guidance on the use of criminal background checks under Title VII that focuses on individualized assessments of past crimes

Yesterday afternoon, the EEOC announced its long awaited, and, by employers, long dreaded, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (along with a short and sweet Q&A).

The Guidance is not nearly as bad for employers as it could have been. Anyone who feared that the agency would over-reach and proclaim that pre-employment criminal background checks per se violate Title VII will be greatly relieved. As SHRM points out:

SHRM is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.

Nevertheless, the Guidance is not perfect. For example, “as a best practice, and consistent with applicable laws,” the EEOC “recommends that employers not ask about convictions on job applications.” While I certainly appreciate the EEOC’s recommendation, I’m not sure what “applicable laws” it references. This attempt to codify “ban the box” is one clear example where the EEOC is over-reaching.

Perhaps the most controversial piece of the new Guidance is the EEOC’s belief that to survive a potential disparate impact claim, employers must develop a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.

In engaging in this individualized assessment, the EEOC directs employers to consider the following factors:

Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.

Other relevant individualized evidence for employers to consider includes:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age at the time of conviction, or release from prison;
• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense or conduct;
• Rehabilitation efforts (e.g., education/training);
• Employment or character references and any other information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or local bonding program.

I’m not aware of any requirement under Title VII that requires an individualized assessment in all circumstances. In the EEOC’s opinion, however, forgoing a screen that includes the individualized assessment will make it difficult, if not impossible, for an employer to justify a criminal background check as job related and consistent with business necessity. Yet, applying this individualized assessment for all applicants will impose a heavy burden on employers. And, the greater an employer’s attrition and hiring needs, the heavier that burden will become.

The EEOC concludes by suggesting some best practices for employers who consider criminal record information when making employment decisions:

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• The policy should Identify essential job requirements and the actual circumstances under which the jobs are performed.
• The policy should also determine the specific offenses that may demonstrate unfitness for performing such jobs, and the duration of exclusions for criminal conduct.
• Record the justification for the policy, procedures, and exclusions, including a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

There is a lot to digest in this comprehensive policy guidance. For example, the EEOC discusses the differences between arrest records and conviction records, and provides specific examples of exclusions that will and will not fall under the umbrella of job related and consistent with business necessity.

This Enforcement Guidance is required reading for any business that takes arrest or conviction records into consideration in any employment decision.

EEOC pronounces protections for transgender workers

Title VII does not, on its face, protect transgender workers from discrimination. Increasingly, however, courts have extended its protections under the umbrella of Title VII’s protections against sex-stereotyping-as-gender-discrimination, as first explained 23 years ago by the U.S. Supreme Court in its landmark Price Waterhouse v. Hopkins decision:

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

Earlier this week, the EEOC made what might be the most significant pronouncement to date on the issue of the protection of transgender as gender discrimination. Macy v. Holder [pdf] involved a transgender woman, Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms denied her a job after she announced she was transitioning from male to female.

In reinstating Macy’s Title VII claim, the EEOC concluded:

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort….

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex,” and such discrimination therefore violates Title VII.

While this opinion is not binding on courts, one cannot overstate the significance of the fact that the agency responsible for enforcing the federal EEO laws has made this broad pronouncement. Many employers operate under the belief that they are free to discriminate on the basis of sexual orientation or gender identity because Title VII lacks no facial prohibition. As this case illustrates, that belief, no matter how commonly held, might be mistaken.

The EEOC and I disagree on a lot. (See criminal background checks as hiring criteria). Yet, on this issue, we are on the same page. It strikes me as appalling that in the year 2012 there are still minority groups against whom it remains facially legal to discriminate. Already, 21 states prohibit sexual orientation discrimination in employment, 16 of which also prohibit gender identity discrimination; another 140 cities and counties have similar laws. Many companies have also made the private decision to prohibit this type of discrimination in their individual workplaces.

For the uncovered, this EEOC decision signals that the time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

[Hat tip: The Proactive Employer / Stephanie Thomas]

“Eat Shop Sleep” underscores the importance of proactively addressing wage and hour issues

You might want to pay attention to the Department of Labor’s latest press release.

The U.S. Department of Labor’s Wage and Hour Division is launching an enforcement and education initiative focused on the restaurant industry in the Los Angeles area to ensure compliance with the Fair Labor Standards Act’s minimum wage, overtime, record-keeping and child labor provisions. Under this initiative, the division will be conducting unannounced investigations at [Los Angeles area] restaurants.

What jumps out the most from the press release is the following statistic:

In the past six years, … the division conducted more than 1,800 investigations of restaurants along the West Coast and found that 71 percent were violating the FLSA, resulting in more than $12 million in back wages owed to more than 9,500 employees.

What’s amazing to me is that the percentage of non-compliant employers is only 71 percent. I remain convinced, as I’ve pointed out before, that I can walk into any company and find a wage and hour violation. The FLSA and its regulations are that complex, twisted, and anachronistic.

For this reason, even if you aren’t a restaurant operator in the Los Angeles area, you need to pay attention to, and get out ahead of, these issues. You cannot predict when, why, or who the DOL will audit. What can you do? Take a detailed look at all of your wage and hour practices: employee classifications, meal and rest breaks, off-the-clock issues, and any child workers. Make sure you are 100 percent compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney who knows these issues to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

[Hat tip: Social Media Employment Law Blog]

As the public policy turns

Last summer, in Alexander v. Cleveland Clinic Foundation, the Cuyahoga County Court of Appeals held that a police officer, fired after several outbursts while working traffic control, could proceed to trial with his wrongful discharge claim. He claimed that because his termination jeopardized the state’s public policy in favor of police officers enforcing the law, he should have been able to pursue his public policy wrongful discharge claim.

Three months later, the Ohio Supreme Court decided Dohme v. Eurand America, holding that to support a wrongful discharge claim, a plaintiff must identify the specific federal or state constitutional provisions, statutes, regulations, or common law that support the public policy relied upon.

Following Dohme, the Ohio Supreme Court vacated the appellate court’s decision and set it back to the appellate court for a re-do.

Second verse, same as the first. In Alexander v. Cleveland Clinic Foundation II (4/19/12) [pdf], the same panel of the same appellate court again concluded that Alexander was entitled to proceed to trial on his public policy claim.

Pursuant to Dohme, the court considered whether Alexander had clearly supported his public policy argument with a specific statement of law from the federal or state constitution, statutes, administrative rules and regulations, or common law:

Alexander claimed that public policy dictates that police officers enforce the laws of the state of Ohio; thus, discharging a police officer for enforcing the laws “would jeopardize the public policy of wanting police officers to enforce Ohio laws.” … Alexander cited R.C. 1702.80(D) in support of his public policy argument. The statute … provides that … a qualified nonprofit corporation … police department … “shall preserve the peace, protect persons and property, enforce the laws of the state.” … [H]ere, Alexander cited to “a specific statement of law” that was drawn from R.C. 1702.80(D).

The takeaway for employers—Ohio or otherwise—hasn’t changed since I first reported on Alexander last year:

Public policy wrongful discharge claims often hinge on the combination of two influences: the creativity of the employee’s attorney to pigeonhole the circumstances surrounding the discharge into a specific state or federal constitution, statute or administrative regulation, or in the common law; and the court’s opinion of that particular public policy.

The unpredictability of these claims underscores the need for employers to treat every termination like a potentially litigious event.

WIRTW #222 (the “exhausted” edition)

Federal jury trials are exhausting. Looking forward to getting my life back.

Here’s what I read this week (during my down time, on my iPhone):

Discrimination

• New Theory of Discrimination: “Implicit Bias” — from Stephanie Thomas’s The Proactive Employer Blog
• Wall Street Journal Takes the EEOC to Task on Background Checks — from Nick Fishman’s employeescreenIQ Blog
• EEOC: Employers have no right to ask what prescription drugs employees are on — from Walter Olson’s Overlawyered
• Even a voluntary demotion can lead to a retaliation claim — from Eric Meyer’s The Employer Handbook Blog
• Happy (?) Equal Pay Day! — from Maryland Employment Law Developments
• 4 Things Employers Should Know About the ADAAA — from Workplace Insights
• Can an employer insist on regular attendance without violating the ADA? Maybe. — from Robin Shea’s Employment and Labor Insider
• Inside the Racist Mind — from Time

Social Media & Workplace Technology

• Does a Social Media Policy for Employees Apply to Contractors? — from i-Sight Investigation Software Blog
• Anatomy of an Employee Facebook Password Protection Law — from Phil Miles’s Lawffice Space
• Employers requesting Facebook passwords — from George’s Employment Blawg
• Are Employer Social Networking Accounts Protectable Trade Secrets? — from Trade Secrets and Noncompete Blog
• I Get It: 4 Ways I Can Tell You Don't Like Voice Mail (and what I think about each of them...) — from The HR Capitalist, Kris Dunn
• Is the boss spying on you? Cyber-snooping on rise — from the Palm Beach Post

HR & Employee Relations

• Why Pet Insurance Makes Sense as Part of Your Menu of Employee Benefits — from TLNT
• Just because you’re paranoid doesn’t mean they aren’t out to get you — from Evil HR Lady, Suzanne Lucas
• Employers Provide Too Little Leave — from Mike Haberman’s Omega HR Solutions
• To Handbook or Not to Handbook — from The Employer's Lawyer
• Employee Handbooks: do’s and dont’s — from Warren & Associates Blog
• Dear Evil Skippy: How Do I Avoid Offending Sensitive Co-Workers? — from Evil Skippy at Work
• Office Romances On The Rise Among Young Employees — from Fox Business

Wage & Hour

• Overtime Lawsuits On The Rise — from Overtime Lawyer Blog
• The Buddha and the Fair Labor Standards Act — from Work Matters
• Keep an Eye Out for Court’s Ruling on Pharmaceutical Sales Rep. Case — from Dan Schwartz’s Connecticut Employment Law Blog
• Clocking in early: a recipe for bogus overtime claims — from HR Cafe

Labor Relations

• Court Upholds Non-Employee Property Access Rights — from Labor Relations Update
• The NLRB and social media: The next phase and more scrutiny — from John Holmquist’s Michigan Employment Law Connection