[Details, briefs]

The Equal Employment Opportunity Commission (EEOC) sued the employer, asserting a retaliation claim under the Americans with Disabilities Act (ADA). The trial court dismissed the claim, based on the “ministerial exception” to the ADA. The 6th Circuit vacated the trial court’s dismissal.

The ministerial exception is codified in the ADA (42 USC Section 12113(d)), but it is rooted in the 1st Amendment and has been applied to Title VII and other employment discrimination statutes. The EEOC’s claim arose from the discharge of a teacher from a sectarian school, and the primary issue on appeal was whether the teacher was a “ministerial” employee subject to the ministerial exception. The 6th Circuit noted that “[t]he question of whether a teacher at a sectarian school classifies as a ministerial employee is one of first impression for this Court.”

The 6th Circuit observed that “the overwhelming majority of courts that have considered the issue have held that parochial school teachers … who teach primarily secular subjects do not classify as ministerial employees for purposes of the exception.” The 6th Circuit also observed that “when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.” Applying those standards, the court concluded that the teacher at issue did not fall within the scope of the ministerial exception. The court noted that the teacher taught secular subjects, and spent only forty-five minutes out of her seven hour workday on religious-oriented activities. The court reasoned, “[t]he fact that [the teacher] participated in and led some religious activities throughout the day does not make her primary function religious.”

The US Supreme Court granted certiorari to review the 6th Circuit judgment.

Question presented in petition for certiorari:

The federal courts of appeals have long recognized the “ministerial exception,” a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The circuits are in complete agreement about the core applications of this doctrine to pastors, priests, and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

About the Author: Ross Runkel is founder of LawMemo, is Professor of Law Emeritus at Willamette University College of Law. He has spent 35 years specializing in employment law, employment discrimination, labor law, and arbitration.

This blog originally appeared in LawMemo.com on March 28, 2011. Reprinted with Permission.

New report documents how low-wage workers are discriminated against at work based on their caregiving responsibilities at home

A new report by U.C. Hastings’ Center for WorkLife Law details the extreme measures to which low-wage workers must go to keep a job and care for their children or elderly family members—and the sometimes shocking discrimination they face at work despite these efforts.

The first of its kind to analyze caregiver discrimination lawsuits filed by low-wage workers, the report—Poor, Pregnant, and Fired: Caregiver Discrimination Against Low-Wage Workers—exposes mistreatment at work around caregiving responsibilities.  The powerful cases profiled in the report, which attracted the attention of the National Law Journal, include:

• employees encouraged to get abortions or asked about their birth control usage, or sexually harassed because of their roles as caregivers;
• pregnant workers fired on the spot or immediately after announcing their pregnancies, or banned from certain positions no matter what their individual capabilities;
• workers routinely denied access to their legal rights, especially to family and medical leave;
• employees being set up to fail, with unreasonable goals or tasks assigned to them, after caregiving responsibilities are discovered;
• low-wage men who care for children or elderly parents subjected to extreme gender stereotyping at work; and
• pregnant women of color denied access to accommodations regularly granted to their pregnant co-workers of a different race.

Even in family emergencies, the report shows, low-wage workers are refused the small kinds of workplace flexibility that are commonplace for middle-wage and professional workers.  One retail worker whose case is profiled in the report was fired for insubordination for carrying a water bottle at work—despite a doctor’s note recommending she do so to treat recurring urinary and bladder infections due to her pregnancy.

Ironically, small changes by employers can make a significant difference in keeping experienced employees in their jobs.  They can also prevent costly liability: several lawsuits profiled resulted in large verdicts, including four with recoveries of between $2.3 and $11.65 million, despite the plaintiffs’ (a housekeeper, a shipping dispatcher, a bakery delivery driver, and a hospital maintenance worker) low wages.

“Caregiver discrimination lawsuits brought by low-wage workers document clearly that work-family conflict is not just a professional women’s problem.  In fact, it’s most acute and extreme for low-income families,” said study author Stephanie Bornstein, Deputy Director of the Center for WorkLife Law.  “To help families move out of poverty, we can’t just focus on ‘fixing’ the worker.  We also need to look at how caregiver discrimination in low-wage jobs undercuts economic stability.  Discrimination not only hurts workers and their families; it leads to high turnover and legal liability for employers.”

Another case profiled in the report is that of a pregnant woman who was forced out of her retail sector job onto unpaid leave despite her desire to work as long as possible while pregnant.  Her supervisor had allowed her perform all of her job tasks while avoiding heavy lifting, and she was working successfully.  Yet several weeks later, when her doctor sent a letter to the company’s HR office to cement this arrangement, she was immediately sent home and told that she could not be accommodated—in violation of California law.

A soon-to-be single mother, the woman was “trying to do the best she could for her baby,” and was confused as to why she was being sent home when she wanted to work, said Jamie Dolkas, Staff Attorney at Equal Rights Advocates in San Francisco, who represents the woman.  “As a low-wage worker, she was really disenfranchised….[T]hey didn’t take the time to explain to her what her rights or options were—they just gave her something in writing that essentially said we can’t accommodate you, go home,” explained Dolkas.

The report profiles 50 cases—selected from among hundreds identified by Center for WorkLife Law research—of low-wage workers who experienced discrimination at work based on their efforts to be both a good worker and a good parent or family member.

The Center for WorkLife Law is a nonprofit research and advocacy organization that works with employees, employers, attorneys, unions, and policymakers to fuel social and organizational change around work-life issues.  The Center is part of the University of California, Hastings College of the Law in San Francisco.

About the Author: Stephanie Bornstein is an employment attorney and Deputy Director of WLL. Prior to joining WLL, she worked as a staff attorney at Equal Rights Advocates (ERA), a public interest law center focused on gender discrimination in employment and education. At ERA, Bornstein represented plaintiffs in individual and class action employment matters, specializing in pregnancy discrimination and family and medical leave. She was also among a small group of advocates to help author and enact California’s Paid Family Leave insurance program, the nation’s first comprehensive paid leave law. In addition, Bornstein worked as a legal editor of employment law products at Nolo Press, a leading publisher of legal books for non-lawyers.

The Stand with the Women of Wal-Mart rally will take place as the nation’s highest court hears arguments on Wal-Mart v. Dukes to decide whether the case can move forward as a class action.

Ten years ago, a group of women who worked at Wal-Mart stores, led by Betty Dukes, filed a lawsuit alleging the corporation engaged in company-wide gender discrimination by paying women less than men, promoting fewer women to management positions and promoting male employees more quickly. The case, now a class action, has made its way to the Supreme Court.

Wal-Mart is challenging the decision by a lower court to allow the women employed at Wal-Mart stores across the country to join together in a class action lawsuit to challenge pay and promotion practices that discriminate against women.

If Wal-Mart succeeds in keeping these women from joining together, the already uphill battle for women to fight pay discrimination will get even worse. But If the women prevail, their case will become the largest class-action civil rights suit in the nation’s history, with some 1.6 million female Wal-Mart and Sam’s Club employees.

A coalition of women’s, workers’ and religious groups are sponsoring the rally, including the AFL-CIO constituency group, the Coalition of Labor Union Women (CLUW).

In a statement, the American Association of University Women (AAUW), another rally sponsor, says class action can send a strong message to employers to follow the law in the first place. Lisa Maatz, AAUW’s director of public policy and government relations, says:

This case illuminates the dirty little secret that women know all too well — that pay discrimination is alive and well and undermining the economic security of American families.

About the Author: James Parks’ first encounter with unions was at Gannett’s newspaper in Cincinnati when his colleagues in the newsroom tried to organize a unit of The Newspaper Guild. He saw firsthand how companies pull out all the stops to prevent workers from forming a union. He is a journalist by trade, and has worked for newspapers in five different states before joining the AFL-CIO staff in 1990. He also has been a seminary student, drug counselor, community organizer, event planner, adjunct college professor and county bureaucrat. His proudest career moment, though, was when he served, along with other union members and staff, as an official observer for South Africa’s first multiracial elections.

This blog originally appeared in ALFCIO on March 28, 2011. Reprinted with Permission.

Speaker of the House of Representatives, John Boehner cries on “60 Minutes.” He cries during a swearing in ceremony. He cries in another interview. Will it be long before he cries over a lost parking spot?

In fact, enter the phrase “John Boehner cries” into Google and you’ll get 351,000 links.

Holy Tip O’Neill, what is going on here?

Then the Miami Heat, a.k.a. the Heatles, lose their fourth game in a row. Coach Erik Spoelstra observes in a post-game interview that a couple of players were crying in the locker room.

Sure, the coach said that to show that his players care. But crying? In the locker room?

Try as I may, I just can’t see former Boston Celtic Bill Russell cry. I can see him make other players cry as he blocked shot after shot, but not Bill himself.

Now I’m going to show my age. I remember in 1972 when Edmund Muskie choked up in a speech in New Hampshire, and it promptly ended his presidential campaign.

I can remember when Tom Hanks said, “There is no crying in baseball” in the movie “A League of Their Own.”

How did the very thing that used to end a career, or serve as a punch line, suddenly become the thing to do?

The crying game, clearly the game has changed. Crying appears to be the new high five. A way to bond with your audience, to show your emotional presence and to put a capital “E” for empathy on your forehead.

So business people, let’s tear up, the time has come for you to emote.

With employees, customers and vendors. Let them see that you care.

You don’t have to put it on your sleeve, it can run down directly onto your shirt. No worries.

Of course you can always go against the grain and keep your eyes dry. But why fight the sudden tsunami of tears?

Ironically, Boehner’s predecessor, Nancy Pelosi, did cry a time or two. Mostly she was savaged by opponents for not being genuine.

That’s the remarkable irony here, crying used to be owned by women, appears to now be a guy thing.

Ladies and gentlemen in the world of business, start your tear ducts. Crying is now officially in fashion.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Public workers don’t make big bucks but they are the backbone of the middle class.  They are teachers who tutor struggling students so they’re prepared for college, vocational school or a trade.  They are police and firefighters who protect us when the unthinkable happens.  They are nurses who vaccinate children so we no longer have polio and diphtheria epidemics.  They are $9.00/hour home health care workers helping individuals live in their homes with dignity.  They keep the economy humming by paying their mortgages, buying groceries and purchasing clothes items that keep our Main Street small businesses afloat.

Throughout the years, public employees and their unions have accepted lower paychecks to defer money to their pensions and health care.  Despite this, they’ve agreed to wage and benefit concessions to help do their share in balancing the state budget.

In sharp contrast to their “jobs, jobs, jobs” campaign promises, Wisconsin Republicans are pushing tax breaks to corporations and the rich that will decimate the state’s budget revenue.  To pay for their millionaire friends’ favors, they propose to cut already stretched-thin funding for education, police, firefighters and human services, all provided by public employees.

In a now-public recorded call to Gov. Walker in which a journalist pretended to be anti-union billionaire David Koch, the men discuss plans to threaten public workers with layoffs, attempts to divide public and private sector unions, and their hope that their anti-union efforts could spread nationwide.

Let’s be clear: This showdown is NOT about balancing the state budget.  It’s about union busting, pure and simple.  The upshot of these efforts is to take away power and family-supporting jobs from working families.

Meanwhile, Gov. Walker and allied legislators have launched other attacks on all working families in both the public and private sectors.  Their budget gives themselves the power to slash health care – a key middle class support – for the 1.1 million Wisconsinites relying on Medicaid.

They’ve proposed rolling back Wisconsin’s Family and Medical Leave Act.  Employees working less than 25 hours per week would no longer be eligible for family leave, and employers could deny the use of accrued sick time to cover lost pay.  Many would be forced to take unpaid leave for emergencies, putting their homes, families and even their jobs at risk.

In an end run around Milwaukee’s paid sick days policy, passed by 70% of that city’s voters in 2008, these legislators have introduced a bill to prevent municipalities from enacting paid sick days laws.

Proponents of these measures suggest they’re needed to boost industry and jobs but Wisconsin’s biggest companies are thriving, even through the recession.  Mercury Marine reported profits of $1.1 billion between 2000-2007 while paying nothing in state corporate income taxes.  Harley-Davidson’s profits have increased – profits The New York Times documented as “…mostly going to shareholders instead of the broader economy.”  Nevertheless, hearing the mantra of “you’re lucky to have jobs,” Harley workers were forced to take pay cuts.

The Governor and allied legislators are pulling the rug out from under middle class families because they want to bust unions and strip hard-won protections like health care, family leave and paid sick days from workers to enrich their corporate campaign contributors.

It’s time for people across Wisconsin and the nation to stand up for working families against policies that would degrade their pay and security.

About the Author: Linda Meric is the Executive Director of 9to5, National Association of Working Women, a national membership-based organization of low-income women working to improve policies on issues that directly affect them.

Educational and employment tests rose to prominence after the civil rights revolution of the 1960s. They signaled that a college or employer valued ability and was committed to equal treatment. With the SAT, the New Haven fire captain’s exam, or the popular General Aptitude Test Battery, each candidate’s numerical score could be plotted on a curve. A scientific judgment could be made about who was most able, most meritorious, and most deserving of a desk in the classroom or a seat on the fire truck.

While both kinds of tests were popularized by equal opportunity laws, educational tests have had a very different legal and practical history than employment tests. Berkeley and the University of Michigan and Yale and Harvard took SAT test scores with a grain of salt, in part because data from millions of test-takers showed that the test does not predict college performance very well for African-Americans. When elite colleges made a concerted effort to diversify the student body in the 1960s, they avoided hard numerical cutoffs for SAT performance and instead took a range of different indictors, like high school grades, into account. Non-elite colleges were admitting almost all comers, so the test mattered little for the average college applicant.

Many companies responded to the Civil Rights Act of 1964 by installing hiring and promotion tests on the theory that these could guarantee that placement was based on merit, not bias. While police and fire departments came to rely heavily on tests, the relationship between test and job performance was problematic, like the relationship between SAT and college performance. Employers often used general ability tests that covered basic high school math and English skills for jobs in auto factories and airplane plants that didn’t require these skills. People who do well on the GATB can make lousy bricklayers. The disconnect between test scores and job performance was the basis of a the Supreme Court’s landmark Griggs v. Duke Power decision in 1971, in which African-American plaintiffs argued that they had been denied posts at Duke Power because they scored poorly on a test that measured skills unrelated to the job. Substandard segregated high schools had prepared African-Americans poorly for such tests, and so many promising candidates for jobs botched the test. The Court ruled that hiring and promotion practices that have a “disparate impact” on certain groups, and serve no business purpose, can be discriminatory.

Personnel psychologists echoed the court’s call for tests to be validated — statistically proven to predict job performance. Lower courts encouraged validation, but Washington made no hard and fast rule that employers must validate job tests. As a result, HR departments sometimes used psychologists’ stringent criteria to validate employment tests, but more often they used guesswork or, as one HR manager told me in an interview, decided they would “throw themselves on the mercy of the court” if they were sued for using a discriminatory test. Even big city police and fire departments, many of whom were under court order to integrate, continued to use tests that had not been validated, and that were known to exclude almost all African-American or Latino candidates. New Haven’s captain’s test had not been validated. While some police and fire departments followed colleges in using supplemental criteria for selection, such as performance in a mock fire, many did something like New Haven, which gave the multiple choice exam a weight of 60% and an oral exam a weight of 40%. In effect, no one below a certain threshold could win a lieutenancy or captaincy.

In colleges, we know that the SAT isn’t a perfect predictor of success, and so we don’t exclude all candidates below a particular score. In fire departments, which use any number of different tests, fire chiefs frequently have no idea of whether the exam is a good predictor of job performance, and yet they rule out candidates below a particular score.

Would Sonia Sotomayor have passed the New Haven lieutenant’s exam? Perhaps, though there are some reasons to think she might not have. She reports that her SAT scores for Princeton and her LSAT scores for Yale were not on par with those of her peers, and that she had to teach herself grammar and vocabulary and the classics when she got to Princeton. She likely wouldn’t have gotten into either Princeton or Yale if they had used hard cutoffs, but that didn’t stop her from graduating summa cum laude from Princeton and making the Law Review at Yale. She may have done a middling job on the SAT for any number of reasons. Perhaps growing up in a housing project in the Bronx didn’t give the preparation that a childhood in Scarsdale and at Exeter Academy might have. Perhaps learning English as a second language put her at a disadvantage. Or perhaps she choked. Social psychologists find that minorities often blow tests when they are thinking of their status, and excel when they aren’t.

Soon to be Justice Sotomayor hoped as a child to become a detective. If she had followed that dream, she might well have struggled with the police department’s detective exam and been stuck as a beat cop. The world of policing would have lost a natural leader, and a great intellect. Police and fire departments could stand to learn one thing from colleges and universities. If multiple choice tests don’t predict college test-taking very well, they surely don’t predict policing and firefighting very well. Chiefs would be well advised to look at a wider range of criteria, as Princeton and Yale did in the case of Sonia Sotomayor.

Frank Dobbin is the author of Inventing Equal Opportunity

Frank Dobbins: Frank Dobbin is professor of sociology at Harvard. He has studied corporate equal opportunity and diversity programs for more than two decades. In his most recent work, with Alexandra Kalev, he is developing an evidence-based approach to diversity management, using a large sample of firms and thirty years of data to analyze the effects of popular diversity programs on workforce integration. His Inventing Equal Opportunity (Princeton University Press, 2009) traces the evolution of corporate equal opportunity and diversity programs put into place by human resources managers – programs that ultimately define discrimination in the American mind.