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Monday, October 09, 2006

Employment Discrimination by Religious Employers

There’s an interesting article in the New York Times (click here; registration required) discussing employment discrimination by religious employers.  The article begins by recounting why J. Jeffrey Heck, a management-side attorney decided, in this instance, to take on a plaintiff’s case:

“The only employee cases I take are those that poke my buttons… And this one really did.”  His client was a middle-aged novice training to become a nun in a Roman Catholic religious order in Toledo.  She said she had been dismissed by the order after she became seriously ill – including a diagnosis of breast cancer. … Along with her occupation and her home, she lost her health insurance[.]”

The story continues by describing how the U.S. District Court dismissed the novice’s case (under the Americans with Disabilities Act), reasoning that this was an ecclesiastical matter.  The article also describes a lawsuit by a rabbi, diagnosed with Parkinson’s disease, who was dismissed from his position (and whose case was also dismissed, due to the ministerial exception).

Although some of the cases involving clergy members were rather disturbing (if you can’t expect compassion from the church or synagogue for anyone who is ill, let alone an ill clergy member, who can you expect compassion from?), even more troubling were the cases described where religious institutions, as employers, were exercising discriminatory biases against workers in rank-and-file positions that had nothing to do with religion (such as receptionists) and were shielded from liability. 

More commentary from Paul Secunda (Ole Miss) here at Workplace Prof Blog.

Posted by Miriam Cherry on October 9, 2006 at 08:27 PM in Workplace Law | Permalink

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Comments

"I guess I would say that it depends on whether your conception of "civil rights" only stems from a statute, or whether you believe that there's something abiding about equality that runs deeper than that."

well, a "civil right" must have as its source either the constitution or a statute. i don't think anyone with a straight face could argue that the equal protection clause was understood to prevent persons from discriminating on the basis of handicap. if someone does believe that, then of course the nun does have a 'civil right.' but, if we do follow that line of reasoning, then we have even bigger problems, because then the ministerial exception is unconstitutional.

further, though i have yet to closely examine the text of the ADA, i would assume that there are various other exceptions to its application (perhaps for small employers or something? any ADA experts out there?). again, if the source of the "right" to be free from discrimination is grounded in the constitution, then the ADA's several exceptions are likely unconstitutional (the act, i understand, runs many pages and contains many exceptions. i strongly doubt that the right to be free from handicap discrimination is in the constitutition, but if it is, it seems a bit much to suggest that its exact parameters are neatly paralleled by the ADA-- i.e. the ADA, by creating exceptions, is unconstitutional for infringing on guaranteed rights).

"So, in Alabama, in 1950, there were no statutes forbidding discrimination on the basis of race; and many workplaces were segregated. Yet, arguably, we would say those workers had "civil rights" they were just denied them, or we would say that those rights were trampled on, or unrecognized."

You're probably right that proper heed was not paid to the EPC with respect to race, and that it finally took the 1964 act to kick people into shape, but i have a harder time believing that a right to be free from handicap discrimination has been lurking in the constitution all this time.

in short, it undoubtedly sucks that a nun could get canned in the fashion described, and i hope she has a legal remedy-- i just doubt that the ada grants her a "civil right" to assert, though (i hope) breach of contract claims, etc. prove fruitful.

Posted by: andy | Oct 11, 2006 5:43:32 AM

Hi Rick, I think that the justification is equal opportunity to work - a livelihood, economic freedom - the antidiscrimination norm. I'm not a student of the church-state issue (I don't teach con law, and never ran across this in practice) but casting my mind back on the issue (and correct me if I'm wrong) but we're talking a law of general application, no? Or to turn the question around and use a hypo, why should a church be able to discriminate on the basis of sex, race, disability or otherwise, in filling a receptionist position? Being a receptionist is a wholly secular job. Whether you're taking messages for a rabbi or the pope, the point is, you're taking messages.

It truly is odd and disturbing to think of religious institutions - those who are supposed to support good works and raise one's spirits to be at one's best - at least one hopes - as propogating invidious sex discrimination, discrimination agains the disabled, etc. The cynical side of me says that points to some serious problems that people who are actively religious should be very concerned about.

In response to Andy, I guess I would say that it depends on whether your conception of "civil rights" only stems from a statute, or whether you believe that there's something abiding about equality that runs deeper than that. So, in Alabama, in 1950, there were no statutes forbidding discrimination on the basis of race; and many workplaces were segregated. Yet, arguably, we would say those workers had "civil rights" they were just denied them, or we would say that those rights were trampled on, or unrecognized. Today, in Alabama, an employer can legally fire an employee on the basis of sexual preference. An employer cannot legally fire a gay employee in Mass. But the claim to "civil rights" does not depend on the jurisdiction; it comes from a sense that discrimination on that particular basis is unjustified, ugly, or harmful.

Posted by: Miriam Cherry | Oct 11, 2006 2:30:17 AM

PS wrote-- "but at the very least religious employers should not be able to run roughshod over their employees' civil rights in all cases."

My question is, if nuns working in churches aren't protected by the ADA, don't they lack the 'civil right' to be free from discrimination based on handicap?

The suggestion that these nuns 'civil rights' are being trampled upon seems conclusory. If (I'm assuming) the only reason one has a right to be free from discrimination on the basis of handicap is the ADA, then the nuns do not have any civil rights to assert. This would seem no different to me-- as a legal matter-- as someone who discriminates against handicapped persons when considering who to take to the prom. In either case, the jilted person has no 'civil right' to assert.

That being said, I quibble only with the legal analysis that would lead one to the conclusion that the nun has a "civil right." I join the chorus of others who, as a moral matter, are bothered that a nun with cancer would be turned away because "she was not called to our way of life."

Posted by: andy | Oct 10, 2006 11:20:30 PM

Hi Miriam -- I've also been following this series with interest, but it sounds like we have different reactions. On the one hand, like you, I really don't like hearing stories about churches / religious institutions acting toward ministerial employees in ways that hardly reflect well on their missions. On the other, I am inclined to think Paul Secunda is wrong (in the post to which you link) to say that "the question should come down to what is truly at the core of the organization's religious belief or expression, and not just a relexive kow-towing to any employment action a religious employer takes because of potential First Amendment concerns. Courts and legislators have to be willing to get analytically dirty in these affairs and be willing to do the necessary searching analysis these cases require." Just for the sake of discussion, why isn't the better rule -- in a regime committed to religious freedom through the separation of church and state -- one that affords a *complete* exemption to churches from employment-discrimination-type claims? (True, this creates a need to think hard about the entities that should get this exemption.) What is the justification for the state *ever* telling a religious entity whom it may or may not fire, or for the state examining the entity's reasons for firing for sufficient religion-related-ness?

Posted by: Rick Garnett | Oct 10, 2006 10:38:18 PM

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