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Posts Tagged ‘Age Discrimination in Employment Act’

Supreme Court Broadens “Ministerial Exception” to Anti-Discrimination Laws, Leaving LGBTQ Employees or Religious Schools Without Protection

Posted on: July 8th, 2020 by Art Leonard No Comments

On June 15, 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from employment discrimination.  On July 8, 2020, the Court took away that protection from most LGBTQ people who are employed as teachers by religious schools.  In a ruling expanding a “ministerial exception” to anti-discrimination laws that it had recognized under the Free Exercise Clause of the First Amendment of the Bill of Right eight years previously, the Court held that employees of religious schools whose job entails teaching religion enjoy no protection against discrimination because  of their race or color, religion, national origin, sex, age, or disability.  The Court’s vote in Our Lady of Guadalupe School v. Morrissey-Berru, 2020 WL 3808420, was 7-2.

The prior decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U. S. 171 (2012), involved a teacher at a Lutheran church school, whom the Court found to be, in effect, a “minister” of the Church, since she had been formally “called” to the ministry by the congregation after a period of extended theological study, and who had even claimed the tax benefits of being clergy.  Although the teacher in question did not teach religion as her primary assignment, the Court found it easy to conclude that it would violate Hosanna-Tabor’s right to free exercise of religion under the First Amendment for the government to intervene in any way in its decision not to continue this teacher’s employment, even if – as the teacher alleged – she was being discriminated against because of a disability in violation of the Americans with Disabilities Act (ADA).

The July 8 decision involved two teachers at Catholic elementary schools in the Los Angeles Diocese.  Neither of them was formally a “minister,” neither of them had extended religious education.  As grade school teachers, they each taught the full range of subjects, including a weekly unit on Catholic doctrine at appropriate grade level for their students, but the overwhelming majority of their time was spent teaching arithmetic, science, history, reading, and so forth – the normal range of what a grade school teacher covers, but with an overlay of Catholicism.  They also were supposed to pray with their students every day, and to attend Mass with them weekly.

One of the teachers claimed that she was dismissed because the school want to replace her with a younger person, suing under the Age Discrimination in Employment Act.  The other claimed she was forced out because of a disability, in violation of the ADA.  In both cases, the U.S. Court of Appeals for the 9th Circuit, reversing trial judges, found that these teachers could sue their schools for discrimination because they were not ministers.

The 9th Circuit looked to the Hosanna-Tabor ruling and found that unlike the teacher in that case, these teachers did not have extensive religious education, were not “called” to ministry or titled as ministers by their schools, and were essentially lay teachers whose time teaching religion was a small part of their duties.

Justice Samuel Alito, writing for the Supreme Court, said that the 9th Circuit had misinterpreted the Hosanna-Tabor case.  He rejected the idea that there was a checklist that could be mechanically applied to the question whether somebody is a “ministerial employee,” instead focusing on the religious mission of the Catholic School and the role the teacher plays in that mission.

“The religious education and formation of students is the very reason for the existence of most private religious schools,” wrote Alito, “and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”

In a concurring opinion, Justice Clarence Thomas (joined by Justice Neil Gorsuch) argued that the Court needn’t even probe into the details of the teachers’ employment, but instead should defer to a religious school’s determination whether their employees are excluded from coverage of anti-discrimination laws because of the ministerial exception.  However, the Court was not willing to go that far, and Justice Alito’s opinion made clear that how to classify an employee of a religious institution is a fact-specific determination that does require looking at the job duties of the employee.

In her dissenting opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, rejected Alito’s contention that the Court’s ruling was a faithful application of the Hosanna-Tabor precedent.  Although the Court had not explicitly adopted Justice Thomas’s “deference” approach, she charged that it had actually adopted Thomas’s approach when it classified these teachers as covered by the ministerial exception.  She wrote that “because the Court’s new standard prizes a functional importance that it appears to deem churches in the best position to explain, one cannot help but conclude that the Court has just traded legal analysis for a rubber stamp.”

To the dissenters, there was a world of difference between the teacher in Hosanna-Tabor and the teachers in this case, and they could see no good reason why church schools should be free to discriminate on the full list of grounds prohibited by anti-discrimination laws when the schools had no “theological” reason for discharging the teachers.

Federal anti-discrimination laws specifically allow religious schools to discriminate based on religion, but not based on such grounds as race or color, sex, national origin, age or disability, except for their “ministers,” as to whom traditionally the churches would have total freedom to decide whom to employ.  The Supreme Court long recognized churches’ freedom from government interference in employing “ministers.”  Hosanna-Tabor extended the concept from clergy to some religious teachers, but Sotomayor argued that this new decision takes that concept too far away from traditional religious leadership roles, taking protection against discrimination away from thousands of teachers.

The Court’s ruling may have an immediate adverse effect in lawsuits pending around the country by teachers who have been systematically fired by religious schools – almost entirely Catholic schools – after marrying their same-sex partners in the wake of the Obergefell decision five years ago.  By rejecting Justice Thomas’s “deference” approach, the Court leaves open the possibility that some of these discharged teachers might be able to prove that the “ministerial exception” does not apply to them, but, as Justice Sotomayor suggests, in most cases courts will have to dismiss their discrimination claims if their job had a religious component similar to the elementary school teachers, even if that was only a minor part of their role.

Texas Federal Court Vacates Transgender Protection under Obamacare

Posted on: October 18th, 2019 by Art Leonard No Comments

Reed O’Connor, a federal trial judge in the Northern District of Texas, ruled on October 15 in Franciscan Alliance v. Azar, 2019 U.S. Dist. LEXIS 177871, 2019 WL 5157100, that the Obama Administration’s regulation providing that the Affordable Care Act (ACA, a/k/a “Obamacare”) prohibits health care providers and institutions from discriminating against patients because of “gender identity” or “termination of pregnancy” is invalid.  The judge “vacated” the rule, effectively ordering the government not to enforce it, although he declined to issue an injunction to that effect.

Government agencies and courts in several states have relied on the regulation, “Nondiscrimination in Health Programs & Activities,” 45 C.F.R. Sec. 92, in several important cases, ruling, for example, that state Medicaid programs and the insurance coverage that states provide to their employees had to provide coverage for medically necessary gender transition treatment.  The regulation has also been invoked in lawsuits challenging the refusal of private employers to cover such treatment, and theoretically also could be invoked to challenge refusals by health care providers to perform abortions, although it is uncertain whether it could apply to such refusals.

O’Connor’s ruling was not a real surprise, since he issued a “nationwide” preliminary injunction barring the government from enforcing the regulation on December 31, 2016, just as it was set to go into effect on January 1, 2017.  Consequently, it is uncertain how federal enforcement proceedings would have fared in the courts.

The Department of Health and Human Services (HHS) formally adopted the regulation on May 16, 2016, as an official interpretation of the ACA’s anti-discrimination language, which mentions neither gender identity nor abortions.  Unlike most federal anti-discrimination statutes that list the prohibited grounds of discrimination, the ACA instead listed four other federal anti-discrimination laws, and provided in Section 1557 that “an individual shall not, on the grounds prohibited under” the listed statutes, “be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.”

The statutes listed were Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin in programs that received federal funds, Title IX of the Education Amendments of 1972, which prohibits sex discrimination by educational institutions that receive federal funds, the Age Discrimination in Employment Act, which prohibits discrimination against people aged 40 or older by companies that employ 20 or more people, and Section 504 of the Rehabilitation Act of 1973, which prohibits unjustified discrimination against people with disabilities by programs that receive federal funding.  HHS interpreted Title IX’s sex discrimination ban to include discrimination against an individual because of their “gender identity” or “termination of a pregnancy” in the context of the ACA.

Franciscan Alliance, an operator of faith-based health care institutions, and two other private sector plaintiffs, joined together with eight states to file a lawsuit in the U.S. District Court in Wichita Falls, Texas, shortly after the regulation was published, challenging HHS’s adoption of the regulation under the Administrative Procedure Act (APA) and the Religious Freedom Restoration Act (RFRA).  Franciscan Alliance specifically alleged that providing gender transition treatment violated its religious beliefs, and that the regulation would require them to perform abortions, also against their religious beliefs. The state plaintiffs, as well as Franciscan Alliance, argued that the regulation was not based on a legitimate interpretation of the discrimination prohibited by Title IX. They also raised constitutional arguments that the court didn’t have to address, since it found the regulation to be invalid under these two federal statutes.

Concerned that the new regulations might be struck down, the American Civil Liberties Union of Texas (ACLU) and River City Gender Alliance (RCGA) filed motions in September 2106 to intervene as parties to help defend the regulation.  Judge O’Connor reserved judgment on this motion pending the filing of answer to the complaint by the federal government, but allowed ACLU and RCGA to participate as amicus parties and file briefs on the pending preliminary injunction motion.

Judge O’Connor developed a reputation during the Obama Administration for his willingness to issue nationwide preliminary injunctions against Obama Administration initiatives, usually at the behest of conservative state governments or faith-based organizations.  Because he is the only judge on the U.S. District Court for the Northern District of Texas who is assigned to sit several days a month in the satellite courthouse in Wichita Falls, Texas, a small city with a population of about 100,000 (roughly the size of South Bend, Indiana, for example), Judge O’Connor’s judicial propensities help to explain why several cases of national importance were filed by conservative opponents of the Obama Administration in that rather obscure courthouse.  Lawyers call this “forum shopping” — seeking out a particular court or judge because they are highly likely to rule in favor of the plaintiffs based on their past performance.

While this litigation was going on, Judge O’Connor became embroiled in a Title IX lawsuit brought by states challenging the Obama Administration’s interpretation guidance to school districts concerning their obligations to transgender students.  In that litigation, he found that the plaintiffs were likely to prevail on their argument that Title IX did not apply to gender identity discrimination, issuing a nation-wide preliminary injunction barring the Education Department from requiring school districts to refrain from discriminating against transgender students.

When he issued his preliminary injunction in this case, O’Connor concluded that the plaintiffs were likely to succeed in showing that the ban on sex discrimination in Title IX did not extend to gender identity discrimination (as he held in the schools case), and that failing to incorporate religious exemption language from Title IX in the regulation violated the intent of Congress in its method of specifying prohibited grounds for discrimination under the ACA.  He also ruled that it was likely that attempts by the  government to enforce the regulation against faith-based health care providers would burden their free exercise of religion without sufficient justification under RFRA.  If the agency exceeded its statutory authority, its adoption of the regulation would violate the APA.

Just weeks after O’Connor issued his preliminary injunction, Donald Trump took office and appointed new leadership for the various federal agencies that interpret and enforce the federal anti-discrimination statutes.   On May 2, 2017, the new leadership at HHS filed a motion asking the court to “remand” the challenged regulation back to the agency, because the new administration was going to be reviewing all of the Obama Administration’s regulatory actions and might make the case “moot” by rescinding the regulation.  Judge O’Connor granted that motion on July 10, 2017, and said he would “stay” further proceedings in the case while HHS decided whether to revoke the regulation.

Surprisingly, in light of Attorney General Jeff Sessions’ memorandum from the fall of 2017 opining that federal laws banning sex discrimination do not ban gender identity discrimination, as well as the Trump Administration’s repeatedly articulated hostility toward abortion, HHS has not yet undertaken the formal steps necessary under the APA to repeal or amend the challenged regulation, and evidently Judge O’Connor finally lost patience and decided to issue a ruling on the merits.  Having received briefing by the parties on the legal questions involved, he determined that he could render a ruling on the government’s motion for summary judgment, producing the decision published on October 15.

He referred back to his earlier preliminary injunction ruling, doubling down on his conclusion that when Congress passed Title IX in 1972, it knew that the EEOC and federal courts had been rejecting transgender individuals’ sex discrimination claims under Title VII of the Civil Rights Act, so as of 1972 Congress would believe that passing a new federal statute outlawing sex discrimination would not outlaw discrimination because of gender identity.

Getting further into the RFRA analysis, he found that the government does have a compelling interest in prohibiting discrimination in health care, but that the regulation did not impose the “least restrictive alternative” as required by that statute. Because there are non-faith based health care providers who will provide gender transition treatment and abortions, he wrote, it is not necessary to burden faith-based providers in order to make it possible for individuals to get those treatments.  They can just go elsewhere.

Thus, Judge O’Connor extended his earlier opinion to hold, as a final ruling on the merits, that the inclusion of “gender identity” and “termination of pregnancy” in the regulation exceeded the interpretive authority of HHS in violation of the Administrative Procedure Act, and that enforcement of those provisions against faith-based health care providers would violate their rights under RFRA.

Judge O’Connor found that because the defendants (the Trump Administration) was no longer affirmatively defending the regulation, ACLU and RGCA were entitled as of right to intervene as co-defendants in order to provide a defense. This was an important step, since only an actual party can appeal a decision. However, Judge O’Connor pointed out that the intervenors will have to establish individual standing to do so if they want to take this case to the 5th Circuit Court of Appeals. The district court could just rely on their allegations that they have members who would be adversely affected by the regulation being struck down in order to grant their intervention motion, but their standing to appeal the ruling might be challenged in the 5th Circuit which, for example, has vacated a ruling against Mississippi’s draconian anti-LGBT statute on grounds that the organizational plaintiffs did not have “standing” to challenge the law before it had gone into effect.

Judge O’Connor did not strike down the regulation in full, merely holding that the inclusion of “gender identity” and “termination of pregnancy” was not authorized by the statute and thus that those portions of the regulation are “vacated.”  He refrained from issuing a nationwide injunction, presumably because the defendant – formally, the Trump Administration – is clearly going to comply, since it is no longer arguing that the regulation is lawful in light of the Sessions memorandum and the position it is arguing in the Harris Funeral Homes case at the Supreme Court.

O’Connor’s action immediately raises the question whether his ruling is binding outside the Northern District of Texas.  Striking down the “unlawful” portions presumably does not just mean for purposes of one federal district.  Normally, the government would appeal such a ruling, but in this case, it seems unlikely that HHS or the Justice Department is going to appeal this ruling, which leaves that determination up to the ACLU of Texas and RGCA, in light of all the circumstances, including a national election just a year from now.