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Federal Court Rules That Charlotte (N.C.) Catholic High School Violated Title VII by Discharging Gay Substitute Teacher 

Posted on: September 6th, 2021 by Art Leonard No Comments

In 2014, after federal courts ruled that North Carolina had to allow same-sex couples to marry, Lonnie Billard and his long-time partner Richard Donham decided to marry and Billard posted an exuberant announcement on his Facebook page for his friends only.  He ended that announcement by stating, “If you don’t agree with this. . . keep it to yourself.  You never asked my opinion about your personal life and I am not asking yours.”

Among Billard’s Facebook friends were staff and parents associated with Charlotte Catholic High School, where he had taught as a substitute English teacher since 2012, after a decade as a full-time member of the faculty teaching English and Drama.  His friends did not keep the news to themselves, and the school stopped calling Billard as a substitute.  When he asked why, he was told by the assistant principal that it was because he “announced his intention to marry a person of the same sex.”

Billard had been a very successful teacher at Charlotte Catholic.  He won the Inspirational Educator Award from North Carolina State University in 2011 and the Charlotte Catholic Teacher of the Year Award in 2012.  He had been nominated for that award “every year since its inception,” according to the man who was principal of the school at that time.  He had been associated with the school since 2000, and throughout that time he had been in a “romantic relationship” with Donham, whom he listed on Charlotte Catholic employee contact forms as his “friend” or “housemate,” and who was identified on some forms as living at the same address as Billard.  Donham came to Charlotte Catholic events with Billard, accompanying him on class trips to New York City with the drama students to see musicals, and had even served as a substitute teacher when Billard was teaching English full-time.  Donham also substituted at the Charlotte Diocese’s middle school.  Billard claimed that members of the high school’s administration knew that he was gay, but the current principal and assistant principal both claimed, rather incredibly, that they were not aware of his sexual orientation until his Facebook post in December 2014.

The Catholic Church is outspokenly opposed to same-sex marriage, and Catholic schools, which have employed many lesbians and gay men as teachers, have consistently dismissed those employees, regardless of how they have performed their jobs, upon finding out that they intended to or had married same-sex partners.  The de facto position of the Church sounds like the federal government’s old “don’t ask, don’t tell” policy on gay military service.  They were happy to employ qualified gay people as ministers (especially church musicians) and teachers, so long as the employees were quiet about being gay and did not go public on same-sex marriages, which the Church saw as defying Catholic doctrine and setting a bad example for congregants and students.

Billard filed a charge with the Equal Employment Opportunity Commission in May 2015, claiming a violation of his rights under Title VII, but at that time the EEOC had not yet issued its ruling that it would investigate and prosecute sexual orientation claims under Title VII’s ban on discrimination because of sex.  Ironically, the EEOC issued such a decision, in the case of gay air traffic controller David Baldwin, in July 2015, shortly after the Supreme Court ruled in June 2015 in the Obergefell case that same-sex couples had a constitutional right to marry.  Billard’s charge was still pending with the EEOC at that time, but perhaps the school’s religious defenses discouraged the EEOC from pursuing Billard’s case directly, as it decided not to sue Charlotte Catholic High School on his behalf, instead issuing a “Notice of Right to Sue Letter” to him in November 2016.  He obtained representation from the ACLU Foundation and its North Carolina affiliate, which filed suit against the school in January 2017.   On September 3, 2021, U.S. District Judge Max O. Cogburn, Jr., of the federal district court in Charlotte, granted summary judgment to Billard and denied summary judgment to the school, finding that Billard had proven a clear violation of Title VII and that none of the defenses argued by the school were valid.

The school argued that it had not fired Billard because is gay, but rather because he supports gay marriage, which the Catholic Church opposes.  The school argued that under the First Amendment’s protection for free exercise of religion, it is privileged to discharge teachers who disagree with the Church’s positions.  The school also argued that it was protected from liability by two sections of Title XII that relieve religious institutions, including religious schools, from complying with the statute’s ban on discrimination because of religion.  The school also cited a “church autonomy doctrine” under the First Amendment, which prohibits “excessive government intrusion upon religion” and which includes the so-called “ministerial exception” that the Supreme Court has identified as sheltering religious institutions from any liability for their employment decisions regarding ministers.  The school also cited the Religious Freedom Restoration Act, arguing that this federal statute would prevent the court from holding it liable for discrimination under Title VII.

The school actually disclaimed any contention that Billard comes within the ministerial exception, but to be on the safe side, Judge Cogburn explained why Billard’s duties as a substitute teacher did not come within the scope of that exception, as most recently described by the Supreme Court last year in a Catholic schoolteacher case, Our Lady of Guadalupe School v. Morrissey-Berru.  Despite the Supreme Court’s broad definition of the exception to extend to any religious school teacher who performed any religious functions, the judge concluded that Billard’s charge to lead a prayer at the beginning of each class was too minimal to excuse the School from complying with Title VII in his case.  He was not hired to teach religion.

Judge Cogburn rejected the school’s argument that discharging somebody for announcing his plans to marry a same sex partner was not discriminating against him because of his sex (or sexual orientation), drawing a comparison to Supreme Court Justice Neil Gorsuch’s reasoning in the Bostock decision of 2020.  The judge pointed out that a female teacher who posted an announcement on Facebook that she was marrying a man would not be discharged, but when Billard, a man, posted the announcement that he was marrying a man, he was discharged, so clearly his sex was a reason for his discharge.  Justice Gorsuch had described similar hypothetical situations in explaining the Supreme Court’s conclusion that firing an employee for being gay was inescapably due, in part, to the employee’s sex, and thus prohibited by Title VII, even though members of Congress in 1964 would not have expected such a ruling.  Gorsuch, a “textualist,” takes the view that the words of the statute take priority over the expectation or intentions of the legislators who passed it, and his view won the support of six of the Court’s nine members.

As to the express religious institution exemptions included in Title VII, the court concluded that they were not intended to excuse religions institutions from complying with Title VII’s ban on discrimination because of sex. Rather, they were enacted to allow religious institutions to prefer members of their faith in making employment decisions.  Billard is a Catholic, and the court was unwilling to accept the school’s argument that a provision allowing it to discriminate because of religion also gave it a right to discriminate because of sex if it had a religious reason for doing so.  Under that theory, a religious institution would be free to discriminate on the basis of race, color, national origin or sex, the other categories prohibited under Title VII, which stretches the religious exception too far and would expose thousands of employees of religious institutions to discriminatory treatment.  Congress has not given religious institutions free reign to discriminate against employees for reasons other than the employees’ religion.

As to the Religious Freedom Restoration Act, many federal appeals courts have ruled that it applies only to situations where the government is suing to enforce a federal statute against a religious defendant, but not to lawsuits brought by private individuals.  Although the Supreme Court has yet to rule on this question, and at least one appeals court has disagreed with that conclusion, Judge Cogburn found based on a close reading of the text of RFRA that it was clearly aimed to restricting enforcement actions by the government, and that a court decision in a lawsuit brought by a non-governmental litigant, such as Lonnie Billard, would not be subject to RFRA’s requirement that the government prove it had a compelling interest to enforce a federal law that burdens the defendant’s free exercise of religion. The court itself is not a “party” to a non-governmental lawsuit, and in the absence of a governmental party, the affirmative defense provisions of RFRA have no application.

Several lawsuits are pending around the country in which employees of Catholic institutions who were discharged over the same-sex marriage issue are seeking relief under Title VII.  In many of them, the plaintiffs’ job duties were such as to bring them within the ministerial exception.  Billard’s is the rare case that was not, at least according to Judge Cogburn’s analysis.

Having granted Billard summary judgment on the merits of his claim, Judge Cogburn ordered that the case “Proceed to trial to determine the appropriate relief that should be granted.”  It is likely that to avoid a court order to reinstate Billard as a substitute teacher, the school may offer a substantial financial settlement.  Title VII specifically lists “reinstatement” as a remedy for a wrongful discharge.  If the case doesn’t settle and Judge Cogburn orders reinstatement, the school and the Roman Catholic Diocese of Charlotte, a co-defendant, are likely to appeal to the 4th Circuit Court of Appeals.

Judge Cogburn was appointed to the court by President Barack Obama.  In 2014, he wrote the decision striking down North Carolina’s ban on same-sex marriage, a decision that was upheld by the 4th Circuit and denied review by the Supreme Court, and it was the decision that led Billard and Donham to decide to get married that led to this lawsuit!

District Judge Enjoins Enforcement of H.B. 2 against Transgender Plaintiffs by the University of North Carolina

Posted on: August 29th, 2016 by Art Leonard No Comments

U.S. District Judge Thomas D. Schroeder granted a motion for preliminary injunction brought by attorneys for three transgender plaintiffs asserting a Title IX challenge to North Carolina’s bathroom bill, H.B.2. Carcano v. McCrory, 2016 U.S. Dist. LEXIS 114605 (M.D. N.C., August 26, 2016).  Finding that the plaintiffs were likely to succeed on the merits of their Title IX challenge in his district court because he was bound by the 4th Circuit Court of Appeals’ ruling in G.G. v. Gloucester County School Board, 822 F.3d 709 (2016), to defer to the Department of Education’s interpretation of Title IX as banning gender identity discrimination and requiring restroom access consistent with gender identity by transgender students, Judge Schroeder concluded that satisfaction of the first test for preliminary injunctive relief, likelihood of success on the merits under 4th Circuit case law, was easily satisfied.  Judge Schroeder noted that the Supreme Court has stayed a preliminary injunction that was issued in the G.G. case while the school district petitions the Supreme Court to review the 4th Circuit’s ruling, but observed that the stay did not vacate the 4th Circuit’s decision, so the requirement for deferral remains the “law of the circuit,” binding on the district court.

Lambda Legal announced on August 29 that it would attempt to get the court to broaden the injunction so as to protect all transgender people in North Carolina from enforcement of the bathroom provision of H.B. 2.

This case arose after the North Carolina legislature held a special session on March 23, 2016, for the specific purpose of enacting legislation to prevent portions of a recently-passed Charlotte civil rights ordinance from going into effect on April 1. Most of the legislative comment was directed to the city’s ban on gender identity discrimination in places of public accommodation, which – according to some interpretations of the ordinance – would require businesses and state agencies to allow persons to use whichever restroom or locker room facilities they desired, regardless of their “biological sex.” (This was a distortion of the ordinance which, properly construed, would require public accommodations offering restroom facilities to make them available to transgender individuals without discrimination.)  Proponents of the “emergency” bill, stressing their concern to protection the privacy and safety of women and children from male predators who might declare themselves female in order to get access to female-designated facilities for nefarious purposes, secured passage of Section 1 of H.B. 2, the “bathroom bill” provision, which states that any restroom or similar single-sex designated facility operated by the state government (including subsidiary establishments such as public schools and the state university campuses) must designate multiple-user facilities as male or female and limit access according to the sex indicated on individuals’ birth certificates, labeled “biological sex” in the statute.

Another provision of the law preempted local civil rights legislation on categories not covered by state law, and prohibited lawsuits to enforce the state’s civil rights law. This would effectively supersede local ordinances, such as the recently-enacted Charlotte ordinance, wiping out its ban on sexual orientation and gender identity discrimination as well as several other categories covered by Charlotte but not by the rather narrow state civil rights law, such as veteran status. This had the effect of lifting Charlotte’s mandate that places of public accommodation not discriminate in their restroom facilities based on gender identity or sexual orientation, and limited the ordinance’s sex discrimination prohibition to distinctions based on “biological sex.”  Although private sector facilities could, if their owners desired, adopt policies accommodating transgender individuals, they would not have to do so.

A furious round of litigation ensued, with cases brought in two of the three North Carolina federal districts by a variety of plaintiffs, including the three individuals in Carcano (represented by the ACLU of North Carolina and Lambda Legal), who are all transgender people covered by Title IX by virtue of being students or employees of the University of North Carolina. Equality North Carolina, a statewide lobbying group, is co-plaintiff in the case.  Governor McCrory and state Republican legislative leaders sued the federal government, seeking declaratory judgments that H.B. 2 did not violate federal sex discrimination laws, while the Justice Department sued the state officials, seeking a declaration that H.B. 2 did violate federal sex discrimination laws and the Constitution.  A religiously-oriented firm, Alliance Defending Freedom, sued on behalf of parents and students challenging the validity of the Justice Department’s adoption of its Guidelines on Title IX compliance.  There has been some consolidation of the lawsuits, which are at various stages of pretrial maneuvering, discovery and motion practice.  Judge Schroeder’s ruling responded solely to a motion for preliminary relief on behalf of the three plaintiffs in the case against UNC, Governor McCrory and other state officials, including Attorney General Roy Cooper, the Democratic candidate for governor against McCrory.  Cooper is refusing to defend H.B. 2, requiring McCrory to resort to other defense counsel.

The University of North Carolina’s reaction to the passage of H.B. 2 has been curious to watch. At first University President Margaret Spellings announced that UNC was bound by the state law and would comply with it.  Then, after a storm of criticism and the filing of lawsuits, Spellings pointed out that H.B. 2 had no enforcement provisions and that the University would not actively enforce it.  Indeed, in the context of this preliminary injunction motion, the state argued that there was no need for an injunction because the University was not interfering with the three plaintiffs’ use of restroom facilities consistent with their gender identity.  Thus, they argued, there was no harm to the plaintiffs and no reason to issue an order compelling the University not to enforce the bathroom provisions.  Judge Schroeder rejected this argument, pointing out that “UNC’s pronouncements are sufficient to establish a justiciable case or controversy.  The university has repeatedly indicated that it will – indeed, it must – comply with state law.  Although UNC has not changed the words and symbols on its sex-segregated facilities, the meaning of those words and symbols has changed as a result of [the bathroom provisions], and UNC has no legal authority to tell its students or employees otherwise.” In light of those provisions, he wrote, “the sex-segregated signs deny permission to those whose birth certificates fail to identify them as a match.  UNC can avoid this result only by either (1) openly defying the law, which it has no legal authority to do, or (2) ordering that all bathrooms, showers, and other similar facilities on its campuses be designated as single occupancy, gender-neutral facilities.  Understandably, UNC has chosen to do neither.”  Since UNC has not expressly given transgender students and staff permission to use gender-identity-consistent facilities and has acknowledged that H.B. 2 is “the law of the state,” there is a live legal controversy and a basis to rule on the preliminary injunction motion.

Perhaps the key factual finding of Judge Schroeder’s very lengthy written opinion was that the state had failed to show that allowing transgender people to use restroom facilities consistent with their gender identity posed any significant risk of harm to other users of those facilities, and he also found little support for the state’s privacy claims, although he did not dispute the sincerity with which those claims were put forward by legislators. Indeed, as described by the judge, the state has been rather lax in providing any factual basis for its safety and privacy claims in litigating on this motion, and had even failed until rather late in the process to provide a transcript of the legislative proceedings, leaving the court pretty much in the dark as to the articulated purposes for passing the bathroom provision. According to the judge, the only factual submission by the state consisted of some newspaper clippings about men in other states who had recently intruded into women’s restrooms in order to make a political point. This, of course, had nothing to do with transgender people or North Carolina. The judge also pointed out that North Carolina has long had criminal laws in place that would protect the safety and privacy interests of people using public restroom facilities.  In reality, these “justifications” showed that the bathroom provision was unnecessary.  For purposes of balancing the interests of the parties in deciding whether a preliminary injunction should be issued, Schroeder concluded that the harm to plaintiffs in deterring them from using appropriate restroom facilities was greater than any harm to defendants in granting the requested injunction, and that the public interest weighed in favor of allowing these three plaintiffs to use restroom facilities consistent with their gender identities without any fear of prosecution for trespassing.  (Since the bathroom provision has no explicit enforcement mechanism, Judge Schroeder found, its limited effect is to back up the criminal trespassing law by, for example, designating a “men’s room” as being off-limits to a transgender man.)

However, Judge Schroeder, commenting that the constitutional equal protection and due process claims asserted by the plaintiffs were less well developed in the motion papers before him, refused to premise his preliminary injunction on a finding that the plaintiffs were likely to succeed in proving that H.B. 2’s bathroom provision violates the 14th Amendment.  Accepting for purposes of analysis that the plaintiffs were asserting a sex discrimination claim that invoked “heightened scrutiny” of the state’s justification for the bathroom provision, he concluded that it was not clear that the state could not meet that test, referring to 4th Circuit precedents on individual privacy and the state’s interest in protecting the individual privacy of users of public restroom facilities.  He reached a similar conclusion regarding the due process arguments, putting off any ruling on them to the fall when he will hold a hearing on the merits.  There will be pre-trial motions to decide in the other cases that were consolidated with this one for purposes of judicial efficiency, so this ruling was not the last word on preliminary relief or on the constitutional claims.

Judge Schroeder explained that his injunction directly protects only the three plaintiffs and not all transgender students and staff at UNC. “The Title IX claim currently before the court is brought by the individual transgender Plaintiffs on their own behalf,” he wrote; “the current complaint asserts no claim for class relief or any Title IX claim by ACLU-NC on behalf of its members.  Consequently, the relief granted now is as to the individual transgender Plaintiffs.”  Despite that technicality, of course, this preliminary injunction puts the University on notice that any action to exclude transgender students or staff from restroom facilities consistent with their gender identity has already been determined by the district court to be a likely violation of Title IX, which could deter enforcement more broadly.  Given the University’s position in arguing this motion that it was not undertaking enforcement activity under the bathroom bill anyway, there was no immediate need for a broader preliminary injunction in any event.

Judge Schroeder was appointed to the court in 2007 by President George W. Bush.