Key California Committee Passes Workplace Religious Freedom Act
Photo Credit www.istockphoto.com/ Amelia Johnson
In August 2010, Noor Abdallah, a Muslim woman who worked as a hostess at Disneyland’s Grand Californian hotel complained that Disney had refused to allow her to wear her hijab, or headscarf, which she wore as a sign of modesty in front of her customers. Disney, which had been working to accommodate her, found a blue scarf that would both fit with the uniform look and accommodate her religious beliefs. The issue was resolved.
Unfortunately, many other religious employees have not been this fortunate and the incidents of religious discrimination based on dress have continued to increase as they have been forced to choose between their faith and their job.
On April 16, 2012 the California Assembly Labor and Employment Committee passed the Workplace Religious Freedom Act of 2012. Introduced on April 11 by Assemblywoman Mariko Yamada (D-Davis), the bill, designated AB 1964 after the Civil Rights Act of 1964, is designed to decrease incidents of employment discrimination against employees who must wear religious dress as part of their religious commitment and adds it to other areas of protected “religious belief or observance.”
Particularly, this bill will address the concerns of Muslims and Sikhs who have been discriminated against in the workplace because of religious dress requirements, or “accommodated” in back rooms away from customers and the general public.
The code presently reads, “Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath of other religious holy days or days, and reasonable time necessary for travel prior and subsequent to a religious observance.”
AB 1964 would add: “and the practice of wearing religious clothing or a religious hairstyle.”
In order to defend against these claims, which can arise based on adverse employment action, refusal to provide reasonable accommodation, or failure to hire, employers will need to be able to demonstrate an “undue hardship” as defined in California law. Under the bill, an accommodation will not be considered reasonable if it requires an employee to be segregated from customers or the general public.
AB 1964 is scheduled to be heard next in the Assembly Judiciary Committee on April 24. The bill is being supported by a variety of faith groups including Catholics, Seventh-day Adventists, Muslims, and Sikhs. The bill also clarifies the employers’ requirement to provide reasonable accommodation by removing some of the ambiguities presently in the law.
A couple of years ago I had the privilege of testifying before the Oregon Judiciary Committee alongside the Northwest Religious Liberty Association in favor of the Oregon Workplace Religious Freedom Act which addressed the areas of religious dress and holy day observance. That bill was signed into law and as a result peaceful people of faith in Oregon have experienced greater workplace protections and employers have benefited from the clearer guidelines.
Click here for the latest Status on AB 1964: http://www.aroundthecapitol.com/Bills/AB_1964/20112012/
The U.S. Supreme Court made the Right Decision When It Upheld the Ministerial Exception
Since the U.S. Supreme Court issued its unanimous decision in Hosanna-Tabor v. EEOC on January 11, 2012, there has been a lot of discussion regarding whether the court did the right thing when it upheld the ministerial exception and denied jurisdiction in a case involving the termination of a ministerial employee. For reasons outlined below, I believe the Court made the right, albeit difficult, decision.
This was the case of the parochial school teacher who in addition to teaching on secular subjects also performed religious functions, Cheryl Perich, who was fired for threatening to file a lawsuit under the Americans with Disaiblities Act when she was not given her job back after returning from medical leave. The religious employer argued that it was against its religious beliefs for a minister to sue the church, and that these things had to be handled within the church structure.
The issue presented before the Court was whether the anti-retaliation prohibition of the Americans with Disabilities Act (ADA) could be constitutionally applied to a religious association’s retaliatory firing of a parochial school teacher who taught secular subjects and also performed religious functions and was designated a commissioned minister.
The Supreme Court found that the Establishment and Free Exercise Clauses of the First Amendment bar ministers from bringing lawsuits against their churches in which the ministers claim violation of employment discrimination laws. In this case, the Court found that Perich was a minister within the meaning of the ministerial exception, and therefore the First Amendment required dismissal of her employment discrimination suit against her religious employer.
The ministerial exception gives religious institutions certain rights to control employment matters without interference from the secular courts. It does not, as the Court decision points out, affect criminal, tort, or contract law. So churches cannot use it to shield themselves from liability for criminal acts, negligent behavior leading to accidents, or breach of contract. But it does protect churches from being hauled into court for religious decisions that have been made.
Some have tried to advance the theory that Perich had not fully pursued the administrative remedies available to her in the parochial system, but that would not have changed the outcome which hinged on the threshold issue of whether the ministerial exception applied to her. If the exception applied, the Court lacked jurisdiction.
Another misconception is that the Hosanna-Tabor decision somehow establishes the ministerial exception and adds something new. In reality, Congress specifically built an exception for religious organizations into Title VII of the Civil Rights Act of 1964. Title VII was enacted by Congress to prohibit employment discrimination on the basis of race, color, religion, sex, or national origin. (42 U.S. C. §§ 2000e-2(a)). Under the statutory exception, religious employers could prefer members of their own faith in making their hiring decisions.
The actual ministerial exception was born in 1972, when, in McClure v. Salvation Army, the U.S. Court of Appeals for the Fifth Circuit refused to hear a female minister’s gender discrimination claim. The court found that applying the provisions of Title VII to the employment relationship existing between a church and its ministers would therefore “cause the State to intrude upon matters of church administration and government” which would “result in an encroachment by the State into an area of religious freedom.”
The way it works is that courts in most Circuits rely upon a role-based or “primary duties test” to determine whether an employee is a minister within the exception, and whether or he she can bring suit under Title VII. Several circuits have adopted an approach that religious institutions should be able to choose who will perform certain spiritual functions. The first approach focuses on the employment relationship, while the second focuses on the right of churches to exercise their beliefs more freely.
Perich was, in many ways, the perfect “poster child” to challenge the ministerial exception. The case clearly involved a non-religious issue and for all the world, it looked like the church was looking for a way to fire her in a way that would be against public policy as applied to secular organizations and still avoid being hauled into court for violating the Americans with Disabilities Act.
In fact, the EEOC, the ACLU, and Americans United for Separation of Church and State (“AU”) rallied to Perich’s side. In its brief, AU argued that the ministerial exception did not entitle religious entities to discriminate or retaliate for reasons unrelated to religion, and that courts should determine whether an asserted religious justification for an action is pretextual.
In short, a church would therefore need to pass a two-prong test – first, it would have to demonstrate that its discriminatory rule was related to its religious beliefs; second, it would need to demonstrate that its action was not “pretextual.”
The AU brief gave some examples of what it meant to litigate on issues of discrimination that were not particularly related to a church’s doctrine. For instance, a Catholic Church could not be forced to hire a female priest, but an otherwise egalitarian church would not be permitted to fire a Sunday-school teacher when the pastor had a purely personal belief that “women should not work outside the home.” The examples continued for several pages, permitting organizations to make discriminatory doctrinal rulings but not permitting local churches from acting in contrast to non-discriminatory denominational policies or practice.
Applying an Employment Division v. Smith style argument, AU argued that generally applicable employment laws should apply to churches unless there is a need to safeguard a constitutional right. Why they would appeal to this analysis is particularly curious. The Smith decision created a major problem for free exercise of religion by subjecting religious minorities to the rule of the majority even if it goes against the minority’s religious beliefs. (One can hope that the Court, in the near future, might see the wisdom of applying the Hosanna-Tabor analysis to individual religious liberty rights and re-establishing the Free Exercise Clause that was compromised in Smith.)
The AU brief is helpful in that it provides a concrete example of the depth to which the government and courts would need evaluate in order to determine whether church employment decisions were permissible or not.
Under the approach proposed by AU, church decisions would be open to scrutiny as to whether they were doctrinal or not, and the investigators would then need to go into the minds of the decision makers to see whether such decisions were made in good faith and not merely to achieve a favorable outcome for the institution.
As people often say, bad cases often make bad law and the Supreme Court had just such an opportunity to throw away the ministerial exception in this highly sympathetic case and effectively destroy the wall of separation of church and state by allowing the state entry into the inner workings of the church. Fortunately the Court saw the bigger issues involved and made the right decision.
However by ruling the way it did, the Supreme Court protected the right of a religious organization to select its clergy without government interference and avoided placing church doctrine under government interpretation. Civil magistrates will not be in a position where they are forced to determine which religious view, that of the clergy member or the church, is correct.
Church leaders are free to choose ministers who they believe will carry their message forward.
While most religious organizations sincerely strive to provide fair and equitable treatment to all employees, this does not mean that some religious organizations will not abuse the “ministerial exception” to make poor personnel decisions that could lead to costly litigation if they were secular organizations. But organizational decision makes should realize that they will ultimately answer to a Higher Power even if these cases may not be pursued in the civil courts.
—-
For more information on the ministerial exception and its history, I would recommend the Charleston Law Review article by Todd Cole, “The Ministerial Exception: Resolving the Conflict between Title VII and the First Amendment.” The article is available online at http://www.charlestonlawreview.org/archive/vol4num4/Cole.pdf
Ruling on Ministers: What the Supreme Court said & didn’t say | Oregon Faith Report
Excerpt: The U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, held that the “ministerial exception” bars a school teacher from bringing employment discrimination claims against her religious employer. The Court’s ruling clearly grants religious institutions the freedom to employ (and terminate) employees who act as ministers of their faith. Yet the Court’s decision does not clearly delineate how a religious organization (or their employees) determines who is and who is not a “minister.”
New York City ‘Workplace Religious Freedom Act’ Clarifies Religious Accommodation Requirements for Employers
On August 30, 2011, New York City Mayor Michael Bloomberg signed the “Workplace Religious Freedom Act” (Int. 632-A) into law clarifying what requirements employers are required to meet to demonstrate that they have done all that is necessary to make a reasonable attempt to accommodate the bona fide religious needs of employees.
Under pre-existing law, employers were required to provide accommodation so long as it did not cause an “undue hardship” for the employer. However, since “undue hardship” was not clearly defined, it was generally viewed as a requirement that the “de minimis cost or burden” standard be applied.
The new City law amends sections 8-102 and 8-107 of the New York City Human Rights Law (“NYCHRL”) to defines what “undue hardship” means:
“Undue hardship” shall mean “an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system).” Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:
- The identifiable cost of the accommodation, including the costs of loss of productivity and the cost of retaining or hiring of employees or transferring of employees from one facility to another, in relation to the size and operating cost of the employer.
- The number of individuals who will need the particular accommodation to a sincerely held religious observance or practice, and
- For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.
The Act also provides that employers in New York City can establish that a religious accommodation will result in an “undue hardship” by showing that it will result in the employee’s inability to perform the essential functions of his or her position.
Potential remedies for violating the law include reinstatement, back pay, compensatory damages, attorney’s fees, and employers could be subject to a civil penalty of $125,000.
From a practical standpoint, employers should consult with human resources experts to ensure compliance by making sure that anti-discrimination policies are up to date, and job descriptions should be tailored to accurately describe portions of the job duties that involve attendance, availability, and dress / grooming requirements.
This law is of particular significance to Muslims and Sikhs who have faced an increase in discrimination since the events of 9/11, and will apply to both public and private sector employers.
###
Religious leaders line up in support of Supreme Court case – The Courier-Journal
The U.S. Supreme Court will soon hear a case involving whether churches can “discriminate” when making employment decisions about employees who are not clergy.
EXCERPT:
[Many religious groups] support the right of religious groups to hire and fire teachers who could be construed as “ministers” on grounds that would be otherwise discriminatory, whether due to race, gender and disability or other reasons. The case could affect hundreds of thousands of teachers and other employees in faith-based schools and organizations.
North Dakota Catholic Conference says ‘Sunday law’ Benefits All People (EWTN News)
NOTE: This is in reference to a law that has been on the books in North Dakota for many years. In the past, it banned business all on Sunday. In 1991, the law was changed to restrict business only until noon on Sunday. This is not a “new” Sunday blue law. This article is interesting in terms of the arguments that it raises.
According to Wikipedia, “North Dakota may have the strictest remaining blue law of the United States. Many goods and items are restricted from being sold between 12am Sunday morning and 12pm Sunday afternoon, rendering virtually all retailers closed in those hours, including malls and large retail chains such as Walmart. Prior to 1991 the law was stricter, when changes more clearly defined which businesses were exempt such as pharmacies, hospitals, and restaurants. The 1991 change also allowed businesses to open at 12pm on Sunday. Previously the laws were in effect all of Sunday until midnight. The changes were made after a 1991 blizzard, after which citizens were not able to purchase some needed goods and services due to the blue law.”
ARTICLE EXCERPT: The North Dakota Catholic Conference has responded to criticism of a law restricting Sunday hours for businesses, saying the regulation benefits the whole of society.
…
“Rather than restricting individual freedom,” the conference director said, “closing laws liberate and free people from the antisocial degeneration of human work.” He noted that economic freedom can only grow in healthy societies, not those which put profits above the values of family and community.
Dodson quoted the Compendium of the Social Doctrine of the Church, which describes public authorities’ duty “to ensure that, for reasons of economic productivity, citizens are not denied time for rest and divine worship.”
“Sunday closing laws are not about honoring the Sabbath day,” Dodson said. “They are about honoring people and families.”
Gov. Jerry Brown Should Veto Poorly Conceived Childcare Bill (LA Times)
EXCERPT: AB 101 began its career in January as a budget bill, then turned into a measure to eliminate community redevelopment agencies, and in June it was amended again and became an effort to slash in-home care service to seniors and the disabled. On Sept. 2, it was reborn one more time as a bill to create a powerful and well-funded new union of government contractors.
California AB 889 Could Be End of Private Babysitting Services
California state Senator Doug LaMalfa writes the following here. The bill is significant enough that we are reprinting his post here. Further analysis of the liberty implications of this billing that could end private babysitting services to follow.
Editor
———-
Adventures In Babysitting: Nanny State To Sue For Rest Break?
By Senator Doug LaMalfa
How will parents react when they find out they will be expected to provide workers’ compensation benefits, rest and meal breaks and paid vacation time for…babysitters? Dinner and a movie night may soon become much more complicated.
Assembly Bill 889 (authored by Assemblymember Tom Ammiano of San Francisco) will require these protections for all “domestic employees,” including nannies, housekeepers and caregivers. The bill has already passed the Assembly and is quickly moving through the Senate with blanket support from the Democrat members that control both houses of the Legislature – and without the support of a single Republican member. Assuming the bill will easily clear its last couple of legislative hurdles, AB 889 will soon be on its way to the Governor’s desk.
Under AB 889, household “employers” (aka “parents”) who hire a babysitter on a Friday night will be legally obligated to pay at least minimum wage to any sitter over the age of 18 (unless it is a family member), provide a substitute caregiver every two hours to cover rest and meal breaks, in addition to workers’ compensation coverage, overtime pay, and a meticulously calculated timecard/paycheck. Failure to abide by any of these provisions may result in a legal cause of action against the employer including cumulative penalties, attorneys’ fees, legal costs and expenses associated with hiring expert witnesses, an unprecedented measure of legal recourse provided no other class of workers – from agricultural laborers to garment manufacturers. (On the bright side, language requiring an hour of paid vacation time for every 30 hours worked was amended out of the bill in the Senate.)
Unfortunately, the unreasonable costs and risks contained in this bill will discourage folks from hiring housekeepers, nannies and babysitters and increase the use of institutionalized care rather than allowing children, the sick or elderly to be cared for in their homes. I can’t help but wonder if that is the goal of AB 889 – a terrible bill that needs to be stopped.
——
For more information on the current status of AB 889, please visit: http://www.aroundthecapitol.com/billtrack/text.html?bvid=20110AB88994AMD
New York City Council Passes Workplace Religious Freedom Act (Sikhsayaset.net)
EXCERPT:
The law, called the “Workplace Religious Freedom Act” by supporters, changes the legal standard by which courts review claims of religious workplace discrimination by public and private city employees.
Under current city law, employers are required to make ‘reasonable accommodations’ for the religious practices of their employees. However, employers can bypass this requirement by showing that such accommodations would impose minimal difficulty or expense for the employer’s business. This law will still allow employers to deny religious accommodations, but only by proving that such accommodations would constitute a “significant difficulty or expense.”
Read more at http://www.sikhsiyasat.net/2011/08/19/new-york-city-council-passes-workplace-religious-freedom-bill/
Feds Find Young Children Working Strawberry Farms – ABC News
EXCERPT: “In a letter to Labor Secretary Hilda Solis sent last Friday, Human Rights Watch expressed concern over a “disturbing overall decline in enforcement of child labor law” at the Department’s Wage and Hour Division. The non-profit group, which documented the use of child labor in farm work in a report released last year, cited 2010 Labor enforcement data showing that the Department’s agricultural inspections dropped by 9 percent from 1,379 in 2009 to 1,259 in 2010. The data also show that child labor violations in agriculture decreased from 36 cases involving 109 children to 31 cases involving 49 children during the same one-year period. Human Right Watch also found that the “hot goods” provision employed in the Washington was only used in one case per year.”