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Federal Appeals Court Says People with Gender Dysphoria are Protected Against Discrimination by Federal Disability Statutes

Posted on: August 17th, 2022 by Art Leonard No Comments

A three-judge panel of the Richmond, Virginia, based U.S. Court of Appeals for the 4th Circuit ruled on August 16 that people with a gender dysphoria diagnosis are considered to have a “disability” that entitles them to protection against discrimination under two federal statutes, the Americans with Disabilities Act (ADA) and the Vocational Rehabilitation Act.  The 2-1 decision is the first in which a federal appeals court has found such individuals to be entitled to protection under those two laws.  Williams v. Kincaid, 2022 WL 3364824, 2022 U.S. App. LEXIS 22728.

The Rehabilitation Act, passed in 1973, forbids discrimination in federal programs, by large federal contractors, or in programs or activities that receive federal financial assistance, against qualified individuals with a disability.  The ADA, passed in 1990, forbids discrimination by employers, by public entities (including public transportation), by public accommodations and commercial facilities, or in telecommunications, against qualified individuals with a disability.  Both statutes cover physical and mental disabilities.

Transgender people generally won protection against discrimination by employers under Title VII of the Civil Rights Act of 1964 when the Supreme Court ruled in Bostock v. Clayton County (2020) that the ban on discrimination because of sex in Title VII must be interpreted to include discrimination because of transgender status.  However, that ruling applies only to employment by entities with at least fifteen employees.  When Congress amended the civil rights bill in 1964 to add “sex” to the list of prohibited grounds for discrimination, it did not also add “sex” to other provisions of the civil rights bill – most significantly the public accommodations provision – so until the 4th Circuit’s August 16 ruling, there was no federal protection against discrimination in public accommodations and services for transgender people.

When the ADA was pending in Congress, Senators Jesse Helms and William Armstrong, outspoken opponents of LGBT rights, criticized the measure as a “gay rights bill,” arguing that “homosexuals,” “transvestites” and “transsexuals” could claim that they had a mental disability and sue for discrimination under the proposed ADA.  To prevent protection for people whom they disapproved, they successfully proposed an amendment that excludes from the definition of disability “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, [and] other sexual behavior disorders” as well as “compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs.”  Federal trial courts, until relatively recently, have interpreted this provision to preclude protection under the ADA or the Rehabilitation Act for transgender individuals.

In Kesha Williams v. Stacey Kincaid, the August 16 ruling, the trial court relied on the ADA exclusion language to dismiss claims by a transgender former inmate of a Virginia jail that she had been subjected to unlawful disability discrimination while incarcerated, because of her gender dysphoria.  The trial judge, Claude M. Hilton of the Eastern District of Virginia, concluded that Congress intended to withhold protection from transgender people, which would include those suffering from gender dysphoria.  He also rejected gross negligence claims against two of the three named defendants, the sheriff in charge of the jail and two jail employees.

Two of the three circuit judges disagreed with Judge Hilton.  Pointing to the Bostock decision, in which Justice Neil Gorsuch wrote that statutes should be interpreted in light of the common meaning of their language at the time the legislation was enacted, Circuit Judge Diana Gribbon Motz observed that the term “gender dysphoria” was not in use in 1990, and that the American Psychiatric Association, in the 2013 edition of its Diagnostic and Statistical Manual (DSM-5), had removed “gender identity disorders” as a listed diagnostic term, and had adopted the new term of “gender dysphoria.”  The court reasoned that this change was not just a case of renaming the same thing, but rather of recognizing a new “independent diagnosis” for a specific condition.  This resulted from “advances in medical understanding.”

“The very fact of revision suggests a meaningful difference,” wrote the judge, “and the contrast between the definitions of the two terms – gender identity disorder and gender dysphoria – confirms that these revisions are not just semantic.”  Consequently, a majority of the panel ruled that a person with gender dysphoria – which the defendants did not dispute was an actual disability that was otherwise within the statutory definition – did not come within the exclusionary provision.  As an alternative argument, they accepted Williams’ reliance on some scientific articles suggesting that gender identity has a physical basis and thus might be described as a gender identity disorder that results does from a physical impairment.

The court also pointed out that a 2008 amendment to the ADA instructed that “courts construe the ADA in favor of maximum protection for those with disabilities, (so) we could not adopt an unnecessarily restrictive reading of the ADA.”  And, added Judge Motz, reversing the district court’s dismissal based on this interpretation of the statute also avoided the need to rule on Williams’ contention that she had been denied Equal Protection of the law in violation of the 14th Amendment.  Courts generally will consider whether ruling against the plaintiff would raise constitutional issues in determining how to interpret a statute.

The court also rejected District Judge Hilton’s conclusion that claims against two prison employees should be dismissed on statute of limitation grounds because they were only named in an amended complaint that was filed after the two-year statute of limitations had run.  The court also reversed Judge Hilton’s dismissal of a gross negligence claim, finding, contrary to the trial judge, that Williams’ factual allegations were sufficient to meet the requirements of Virginia law for such a claim against the sheriff and one of the jail employees.

Dissenting, Judge A. Marvin Quattlebaum focused on similarities in the definitions of “gender identity disorders” and “gender identity” and argued that even if Williams was correct about “changes in understanding” by the medical profession since 1990, “linguistic drift cannot alter the meaning of words in the ACA when it was enacted.”  He insisted that as of 1990, “the meaning of gender identity disorders included gender dysphoria as alleged by Williams.”  He also disagreed with the majority of the panel on the gross negligence issue as it pertained to Sheriff Stacey Kincaid, the lead defendant.

The 4th Circuit panel decision establishes a precedent for the federal courts in Maryland, Virginia, and North and South Carolina.  However, it is possible that Judge Quattlebaum will call for a vote by the full circuit bench on whether to rehear the case “en banc,” or that the defendants could move for such a vote. A vote by a majority of the fourteen active judges of the Circuit court to grant en banc review would vacate the panel decision and require reconsideration by the full 4th Circuit bench.  (There is one vacancy that Biden has not yet filled.)  At present, eight of the fourteen judges are Democratic appointees, including Judge Motz (Bill Clinton) and Judge Pamela Harris (Barack Obama), the other member of the majority. Dissenting Judge Quattlebaum was appointed by Donald Trump.

The defendants could also apply directly to the Supreme Court for review of this decision.  The Supreme Court usually does not grant review unless there is a split among circuit courts about the legal issues in the case.  The 4th Circuit is rule on the question whether people with gender dysphoria are protected under the ADA and the Rehabilitation Act, so there is no circuit split.

Music Director Barred from Suing Catholic Church For Hostile Environment Harassment Under Anti-Discrimination Laws

Posted on: July 11th, 2021 by Art Leonard No Comments

A ten-judge bench of the Chicago-based U.S. Court of Appeals for the 7th Circuit ruled on July 9 by a vote of 7-3 that the religion clauses of the 1st Amendment of the U.S. Constitution give churches total immunity from hostile environment claims by their ministerial employees.  Demkovich v. St. Andrew the Apostle Parish, 2021 U.S. App. LEXIS 20410, 2021 WL 2880232 (7th Cir. en banc).

Rejecting a decision by a three-judge panel of the court that Sandor Demkovich, the gay former Music and Choir Director and Organist at St. Andrew the Apostle Parish in Calumet City, Illinois, could bring a hostile environment claim against the church under the Civil Rights Act of 1964 and the Americans with Disabilities Act, the en banc court held that allowing such claims would violate the religious autonomy of the church protected by the religion clauses of the 1st Amendment.  Judge Michael Brennan, appointed by President Donald Trump, wrote the court’s opinion.

The 7th Circuit is among the most Republican-dominated of the federal appeals courts.  Of the eleven active members of the Court, eight were appointed by Republican presidents (four by Trump).  President Joseph Biden’s first appointee to the court, Judge Candace Jackson-Akiwumi, was only recently confirmed by the Senate and did not participate in this case.  One of President Trump’s appointees recused himself, and a senior (retired) judge appointed by Ronald Reagan, Joel Flaum, who was the dissenter on the three-judge panel, was entitled under 7th Circuit rules to participate.

Judge David Hamilton, appointed by Barack Obama, wrote the panel decision and the dissenting opinion, joined by Judge Ilana Rovner, a moderate appointed by George H. W. Bush in 1992, who was the other member of the three-judge panel majority.   Judge Diane Wood, appointed by Bill Clinton, joined the dissent.

Demkovich was hired in September 2012.  His supervisor was Reverend Jacek Dada, a priest who is the church’s Pastor.  According to Demkovich, who has various physical disabilities, Dada was constantly subjecting him to verbal abuse because of his sexual orientation and his disabilities, adversely affecting his physical and mental health.  In 2014, after Illinois had legislated to allow same-sex marriages, Demkovich let the church know that he planned to marry his same-sex partner.  Dada told him that he had to resign from the church because his marriage would violate Catholic doctrine.  When Demkovich refused to resign, Dada fired him.

Demkovich sued the St. Andrew church and the Archdiocese of Chicago under Title VII of the Civil Rights Act and the Americans with Disabilities Act, claiming that his discharge was unlawful discrimination because of his sexual orientation and disabilities.  The church moved to dismiss the case, citing the “ministerial exception” under the 1st Amendment, and the district court granted the motion, determining that Demkovich was a “ministerial employee” under the Supreme Court’s 2012 decision, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171.  In Hosanna-Tabor, an ADA case involving a school teacher, the Supreme Court ruled that it would violate the 1st Amendment to allow a ministerial employee to challenge their discharge in a federal court, because religious institutions have an absolute right under the Free Exercise Clause to decide whom to employ as ministers without any interference from the courts.  Under Hosanna-Tabor, the district court’s decision to dismiss Demkovich’s unlawful discharge claims was undoubtedly correct.

Demkovich came back to court with an amended complaint, alleging that he was unlawfully subjected to a hostile environment by Dada, his supervisor, because of his sexual orientation and disabilities.  Again, the church invoked the “ministerial exception” and moved to dismiss. District Judge Edmond E. Chang decided that Hosanna-Tabor, a discharge case, did not necessarily apply to a hostile environment claim, drawing a distinction, as the San Francisco-based 9th Circuit Court of Appeals had previously done in a similar situation, between tangible and intangible employment actions, finding that the exception applied only to the former.

Judge Chang held that the proper approach in a hostile environment case was to balance the church’s religious freedom concerns with the employee’s statutory anti-discrimination rights, taking into account the nature of the employer’s conduct and the reasons for it.  Based on this “balancing of rights,” Chang dismissed the sexual orientation claim but refused to dismiss the disability claim, distinguishing between hostility that could be motivated by religious doctrine and hostility that had no basis in religious doctrine.  Demkovich v. St. Andrew, 343 F. Supp. 3d 772 (N.D. Ill. 2018).

But Chang then certified a request by the church to have the court of appeals consider the issue before the case went further.  Last summer, the Supreme Court issued another ministerial exception decision, Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), which took a broader view of the definition of a ministerial employee in the context of religious schools. This case also involved two teacher discharges, allegedly in violation of the ADA and the Age Discrimination in Employment Act.

The three-judge 7th Circuit panel ruled in 2020 that Demkovich should be allowed to litigate both of his hostile environment claims, finding that the reasoning behind Hosanna-Tabor did not require a dismissal in a case such as this, following the lead of the 9th Circuit.  See 973 F. 3d 718 (7th Cir. 2020).  The church then petitioned the 7th Circuit for rehearing en banc.  The 7th Circuit vacated the panel decision, heard arguments before a panel of 10 judges earlier this year, and issued its July 9 decision holding that Judge Chang should have dismissed the case completely.

In his opinion for the court, Judge Brennan, while acknowledging that the Supreme Court’s two precedents, Hosanna-Tabor and Guadalupe, both involved discharges of religious school teachers, found various statements in those decisions that he said could be construed to have embraced more general principles that the courts should not be interfering in any personnel-related disputes between religious institutions and their ministerial employees.  He drew two “principles” from the Supreme Court’s decisions: “The protected interest of a religious organization in its ministers covers the entire employment relationship, including hiring, firing, and supervising in between.  Second, we cannot lose sight of the harms – civil intrusion and excessive entanglement – that the ministerial exception prevents.  Especially in matters of ministerial employment, the First Amendment thus ‘gives special solicitude to the rights of religious organizations,’” quoting from Hosanna-Tabor.

Brennan pointed out that in a hostile environment case, discovery could be wide-ranging, and would involve an inquiry into the reasons why, in this case, the priest in charge was treating the music director – both ministerial employees because of the role they play in the religious life of the church – in a particular way. To the majority of the en banc court, this would raise the specter of judicial interference in matters of religion, regardless whether the claim arose under Title VII or the ADA.  The court found that a central theme of the Supreme Court and lower federal court rulings involving discrimination claims by ministerial employees was that churches must enjoy autonomy in making personnel decisions about their ministerial employees, whether they could be characterized as tangible or intangible actions.

“Demkovich’s hostile work environment claims challenge a religious organization’s independence in its ministerial relationships,” wrote Brennan.  “A judgement against the church would legally recognize that it fostered a discriminatory employment atmosphere for one of its ministers.”  While the employment discrimination statutes have been interpreted to hold employers liable for fostering a discriminatory employment atmosphere, Brennan wrote that the Supreme Court’s ministerial exception cases “teach that ministerial employment is fundamentally different.”  And, he continued, “Just as a religious organization ‘must be free to choose those who will guide it on its way,’ so too must those guides be free to decide how to lead a religious organization on that journey,” once again quoting from the Hosanna-Tabor opinion.

Judge Hamilton’s dissent began by noting that the Supreme Court’s ministerial exception cases all involved discharge decisions, not hostile environment claims, and that federal circuit court and state courts are “split on the question before us,” noting not only the 9th Circuit’s prior rulings, but also several district court decisions.  He insisted that “the majority’s rule draws an odd, arbitrary line in constitutional law,” and argued that “the line between tangible employment actions and hostile environment fits the purposes of the ministerial exception.”

He accused the majority of departing “from a long practice of carefully balancing civil law and religious liberty,” and pointed out the severe consequence of holding that religious employers would be immune from any liability for mistreating their employees under anti-discrimination laws.  “We know that people who exercise authority within churches can be all too human,” he wrote.  “Casebooks and news reports tell us of cases of sexual harassment by ministers, sometimes directed at parishioners, sometimes at non-ministerial employees, and sometimes at other (typically less senior) ministers.  In briefs and oral argument, defendants have acknowledged that a religious employer could be held civilly liable for a supervisor’s criminal or tortious conduct toward a ministerial employee. . .  Such cases would not violate the supervisor’s or the employer’s First Amendment rights.  If criminal or tort cases do not, then it is hard to see why a statutory case based on the same conduct would necessarily violate the First Amendment, whether or not the supervisor claims a religious motive.”

“The hostile environment claims before us present a conflict between two of the highest values in our society and legal system: religious liberty and non-discrimination in employment,” wrote Hamilton.  “The Supreme Court has not answered this question, nor does the First Amendment itself.  Circuits and state courts are divided.  For the reasons explained above and in the panel majority, I submit that the majority’s absolute bar to statutory hostile environment claims by ministerial employees is not necessary to protect religious liberty or to serve the purposes of the ministerial exception.”

The next step for Demkovich could be to file a petition for review with the Supreme Court.  Depending on the details of his factual claims, he might try to pursue a state court tort suit for intentional infliction of emotional distress against Jacek Dada individually, but it is possible that it would be barred by the state statute of limitations, since all the conduct at issue took place in 2012-2014.

 

Federal Court Awards Significant Damages to Individuals Denied Plastic Surgery Because of HIV Status 

Posted on: August 22nd, 2020 by Art Leonard No Comments

U.S. District Judge Analisa Torres (S.D.N.Y.) ruled on August 5 in United States v. Asare, 2020 U.S. Dist. LEXIS 139864, that three men who were denied plastic surgery by Dr. Emmanuel O. Asare because he believed them to be HIV-positive are entitled to the maximum statutory damages available in such a case under the Americans With Disabilities Act and the New York City Human Rights Law.  The court ordered that Dr. Asare to pay each of the men $125,000 and to pay a fine to the government of $15,000.  The total awarded is $390,000 in damages and penalties.  The court also ordered Dr. Asare to refrain from testing patients for HIV as a prerequisite for denying them services if they test positive.

The U.S. Department of Justice, which enforces Title III of the Americans with Disabilities Act (ADA), forbidding unjustified disability discrimination by public accommodations (including medical practices), filed this lawsuit in 2015, consolidating in one case complaints by three New York men, Mark Milano, J.G., and S.V.  Each of the men had gone to Dr. Asare seeking a procedure to remove unwanted body fat from their chests, a common procedure in which the doctor specialized.  Each of the men was ultimately rejected for the procedure by the doctor when he came to believe (incorrectly in the case of one of them) that they were HIV-positive.

According to the court’s findings after discovery and trial, Dr. Asare’s practice was to have blood drawn for testing some days in advance of the scheduled procedure, to determine whether the patient had any condition that would cause him to deny them treatment.  J.G. and S.V. both testified that they were not asked to consent to HIV testing and were not aware that their blood would be tested for this purpose.  Dr. Asare’s practice was to categorically refuse to perform plastic surgery on HIV-positive people in his clinic.

J.G. had been scheduled for the procedure, but received a call from Dr. Asare’s office asking him to come in to speak with the doctor, who informed him that he had tested positive for HIV and could not receive the procedure.  J.G. had known for years that he was HIV-positive but had not disclosed this on the doctor’s intake questionnaire because he had long kept this information secret from all but a handful of individuals.  He was on anti-retroviral therapy, with an undetectable viral load, and was otherwise healthy.  When he submitted to a blood draw for testing, he was not told that his blood would be tested for HIV.

S.V., a single father of two children who was planning to get married, decided to get the surgical procedure because he was dissatisfied by the appearance of his body.  Due to some sort of mix-up, he had actually reported for the procedure, was sedated and ready for it to be performed, when Dr. Asare informed him that the blood draw a few days earlier showed that he was HIV-positive and the procedure was off.   Asare called a car service for S.V. and sent him home in a sedated state!  When he arrived home, S.V., who was puzzled and shocked by the news, was so woozy that he had to crawl up the stairs to his bedroom and slept for hours.  Not believing that he could possibly be HIV-positive, he went to a hospital a few days later for testing and was informed that he was not HIV-positive.  Judge Torres’ opinion identifies J.G. and Milano as gay men, but does not so specify as to S.V., and does not mention the gender of the person he was planning to marry.

Mark Milano, who was working at the time for an HIV/AIDS organization, also knew that he was HIV-positive, but he did not indicate this on the intake questionnaire because he did not consider the information relevant.  However, in discussing the procedure with Dr. Asare, he asked out of curiosity whether the anti-viral medication he was taking could be responsible for the fatty deposits he wanted to have removed from his chest.  Asare replied that his office was not set up to provide surgery for HIV-positive people and refused to schedule the procedure.  Thus, with Milano things did not get to the stage of blood testing in advance of the procedure.

Under the ADA, a public accommodation, including a medical practice, may not deny services to somebody because of a disability, either actual or perceived, unless the disability renders the person unqualified for the service.  In this case, Judge Torres heard expert testimony that convinced her that being HIV-positive, which is considered a disability under the ADA, was not a disqualification for the procedure Dr. Asare was supposed to provide to these men.  She concluded that the doctor’s explanation that it would be dangerous to mix the anesthetic he used with the anti-retroviral medication that an HIV-positive person would be taking had no medical basis.

Furthermore, the ADA prohibits medical testing that would unjustifiably screen out qualified individuals from receiving a service.  The medical experts testified that all surgeons are supposed to observe “universal precautions” with patients to avoid exposure to any blood-borne infections, regardless of testing.  The emergence of “universal precautions” as the standard of care was actually sparked by the AIDS epidemic.  Before then, it was an open secret in the medical profession that many health care professionals were infected with hepatitis B, a much more easily transmitted infection through blood exposure than HIV, as a result of casual exposure to the blood of patients in health care facilities where universal precautions against such exposure were not enforced.

Thus, Dr. Asare was found to have violated the ADA (and, since his activities were taking place in New York City, the City’s Human Rights Law) in two respects: denying services to people with a disability, and using medical testing to screen out otherwise qualified people with a disability.

Some of these points had been established at earlier stages of the litigation when the focus was on Mr. Milano’s discrimination claim.  The government’s decision to add claims on behalf of J.G. and S.V. prolonged the case, because the issue of testing, which was not raised in Milano’s case, had to be addressed in connection with J.G. and S.V..  The court needed medical expert testimony so that Judge Torres could determine whether requiring the testing violated the statute, a crucial point in framing her remedial order in the case, and haggling about the qualification of an appropriate expert caused significant delay, which is one of the reasons a lawsuit originally filed in 2015 did not come to a final ruling by the trial court until five years later.

The amount of damages was determined by reference to the range of damages that are customarily awarded in Title III cases.  Here the focus was on the psychological and emotional impact on the three men from being denied Dr. Asare’s services under these circumstances.  Each of them credibly testified about severe emotional distress that they suffered, prompting the judge to award the highest amount of damages that she found to be available under the ranges of damages that have been awarded in ADA cases, adding consideration of the range of remedies available under the New York City law as well.

It is possible that Dr. Asare could get the damages cut down on appeal to the 2nd Circuit Court of Appeals, but Judge Torres devoted a substantial part of her opinion to describing the testimony about how each man was affected by being rejected for the procedure, and particularly the bizarre treatment of S.V., who was not HIV-positive and was actually prepped for surgery and sedated by mistake, then sent home in that sedated state without any supervision or follow-up from Dr. Asare’s office to see whether he was all right.  The court’s description of Dr. Asare’s conduct in this case should draw the attention of regulatory authorities on health care practice.

Lawyers from the U.S. Department of Justice prosecuted the case against Dr. Asare, but Mark Milano was allowed by Judge Torres to intervene as a co-plaintiff, and he was represented by Alison Ellis Frick and Matthew D. Brinckerhoff, of Emery Celli Brinckerhoff & Abady, LLP, New York, NY, as well as Armen Hagop Merjian, who has litigated many important HIV-related cases on behalf of Housing Works, Inc., a provider of housing to people living with HIV and an active advocate for their rights.

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.

Illinois Federal Court Allows Discharged Gay Organist to Pursue ADA Hostile Environment Claim against Archdiocese of Chicago

Posted on: October 2nd, 2018 by Art Leonard No Comments

U.S. District Judge Edmond E. Chang ruled on September 30 that Sandor Demokovich, a church organist and choir director who was fired from his position at St. Andrew the Apostle Parish, Calumet City, in the Archdiocese of Chicago, after marrying his same-sex partner, may pursue a hostile environment disability harassment claim against his former employers under the Americans with Disabilities Act (ADA). Demkovich v. St. Andrew the Apostle Parish, 2018 U.S. Dist. LEXIS 168584 (N.D. Ill.).  In previous motion practice, Judge Chang found that Title VII and state and local antidiscrimination claims against the defendants for discriminatory discharge because of his sexual orientation and marital status are barred by the “ministerial exception” recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012).  In this ruling, he found that claims of hostile environment harassment because of the plaintiff’s sex, sexual orientation and marital status are also barred, due to Free Exercise and Establishment Clause concerns.

Demkovich began working as Music Director, Choir Director and Organist at St. Andrew in September 2012, and was fired in September 2014. His immediate supervisor, Reverend Jacek Dada, St. Andrew’s pastor, knew that Demkovich was gay and that he was engaged to another man, and, according to Demkovich’s allegations, subjected him to abusive and harassing behavior, which built to a crescendo as the date of Demkovich’s impending wedding approached.  Witnesses averred that Dada told them he would fire Demkovich if Demkovich married, and he was true to his word.  In addition, Demkovich, who had an obvious weight problem traceable to his struggles with diabetes, also suffered under Dada’s unwelcome comments about his weight and medical condition.  “Reverend Dada made harassing remarks about Demkovich’s weight, often urging him to walk Dada’s dog to lose weight, and telling Demkovich that he needed to lose weight because Dada did not want to preach at his funeral,” wrote Chang, summarizing the allegations in the complaint.  “Dada also repeatedly complained about the cost of keeping Demkovich on the parish’s health and dental insurance plans because of his weight and diabetes.  In 2012, when Demkovich declined a dinner invitation from Dada because he did not have his insulin with him, Dada asked if Demkovich was diabetic and told him that he needed to ‘get his weight under control’ to help eliminate his need for insulin.”

Being an organist and choir director seems to be a profession that attracts gay men, to judge by the number of cases we have seen over the years, including some of the earliest sexual orientation discrimination cases. Lawsuits challenging dismissals of gay church organists and choir directors almost invariably founder on the courts’ solicitude for defenses based on the First Amendment protection of the decisions by churches about whom to employ in positions directly implicated in carrying out their religious mission, and there is little disagreement among those judges who have faced the question that a church organist and choir director plays a ministerial role in the life of a church.  As to that, Judge Chang found that Demkovich’s concession that his is a “minister” for this purpose precludes his pursuit of wrongful discharge discrimination claims, whether premised on Title VII and the ADA or similar state or local laws, based on the Supreme Court’s determination that the government should never be involved in telling a church whom to employ as a minister.

However, Chang found, the Supreme Court’s Hosanna-Tabor case was a discharge case, and can be read to be limited to discrimination claims with respect to tangible employment issues, such as hiring, promotion, assignments, compensation. The Court spoke in that case about the right of a church to decide whom to employ as its minister, but not necessarily how that individual would be treated based on characteristics other than their religion, as to which Title VII provides for an express exception allowing religious institution employers to establish religious criteria for employment.  On the other hand, he found, one must resort to circuit court precedent to determine whether the ministerial exemption should also bar hostile environment harassment claims by a ministerial employee against a religious employer.  Since these claims involve “intangible” harms, he concluded that it was possible that the ministerial exception does not apply to them.  Instead, on a case-by-case basis, the court would have to determine whether allowing a hostile environment claim to go forward would raise significant 1st Amendment free exercise or establishment concerns.

As to this, he concluded, given the Catholic Church’s well-known public opposition to same-sex marriage, alleging a hostile environment based mainly on adverse comments by a supervisor about an employee’s proposed same-sex marriage would intrude unduly into the 1st Amendment rights of the church, thus ruling out that claim as well. “Although the ministerial exception does not bar Demkovich’s hostile-environment claims (to repeat, he does not challenge a tangible employment action), the Court concludes that litigation over Reverend Dada’s alleged harassment based on Demkovich’s sex, sexual orientation, and marital status would excessively entangle the government in religion.”  He noted that defendants offered a “religious justification for the alleged derogatory remarks and other harassment: they ‘reflect the pastor’s opposition, in accord with Catholic doctrine, to same sex marriage,’” he wrote.

“Whether Catholicism in fact dictates opposition to same-sex marriage is not subject to court scrutiny,” wrote the judge, quoting 7th Circuit authority to the effect that “once the court has satisfied itself that the authorized religious body has resolve dthe issue, the court may not question the resolution.”  Furthermore, he observed, the Church’s “official opposition to gay marriage is commonly known (nor does Demkovich question it), and there is no reason to question the sincerity of the Archdiocese’s belief that the opposition is dictated by Church doctrine.”  Also, Demkovich’s ministerial role “weighs in favor of more protection of the Church under the First Amendment,” he continued, noting that “the church has absolute say in who will be its ministers.”  Chang pointed out several different ways in which allowing this hostile environment claim to proceed would raise Establishment Clause as well as Free Exercise Clause problems.

On the other hand, found Chang, there seemed no salient 1st Amendment concern in allowing Demkovich to pursue a hostile environment disability claim under the ADA, assuming that hostile environment claims are actionable under that statute – an issue not yet addressed by the Supreme Court.  Although the Church’s ministerial exemption bars suing it about a decision concerning whom to employ as a minister, wrote Chang, it was hard to discern a First Amendment right of the Church that would be abridged by questioning the disability-related hostile treatment of a minister whom the Church was willing to employee.

He wrote, “The Court first notes that the Seventh Circuit has not yet expressly decided that the ADA ever permits a hostile work environment claim. Instead, the Seventh Circuit has assumed – in both published and unpublished decisions – that there is such a claim under the ADA.  In light of the similarity between Title VII and the ADA in protection against discriminatory workplace conditions, this Court too assumes that the ADA does provide for hostile work environment claims.  When analyzing hostile work environment claims under the ADA, the Seventh Circuit has ‘assumed that the standards for proving such a claim would mirror those established for claims of hostile work environment under Title VII.”

Significantly, he noted, the Archdiocese “offers no religious explanation for the alleged disability discrimination. The Archdiocese justifies [Rev. Dada]’s comments as ‘reflecting the pastor’s subjective views and/or evaluation of Plaintiff’s fitness for his position as a minister.’  But this is not a religious justification based on any Church doctrine or belief, at least as proffered so far by the defense.  So the disability claim does not pose the same dangers to religious entanglement as the sex, sexual orientation, and marital-status claims.  Nothing in discovery should impose on religious doctrine on this claim.  Rather, the inquiry will make secular judgments on the nature and severity of the harassment (and whether it even happened), as well as what, if anything, the Archdiocese did to prevent or correct it.  The Religious Clauses do not bar Demkovich from pursuing the hostile-environment claims based on disability.”

The Archdiocese had also argued that “the alleged conduct was not severe or pervasive, was not physically threatening, and is not alleged to have altered the terms and conditions of Plaintiff’s employment,” but Chang noted that “this case is at the pleading stage, so Demkovich need not plead more facts than necessary to give the Archdiocese ‘fair notice of his claims and the grounds upon which those claims rest, and the details in his Amended Complaint present a story that holds together.’”  Judge Chang found that the allegations thus far were sufficient to place a hostile environment claim in issue for purposes of defeating a motion to dismiss.

Thus, the bottom line is that defendants’ motion to dismiss was granted as to the hostile environment claims based on sex, sexual orientation, and marital status, but denied as to the claims based on disability.”

Demkovich is represented by Kristina Buchthal Regal of Lavelle Law, Ltd., Palatine, IL.

Court Recognizes Gender Dysphoria Discrimination Claims under Americans With Disabilities Act

Posted on: May 19th, 2017 by Art Leonard No Comments

For the first time, a federal court has recognized that individuals suffering from gender dysphoria are entitled to protection against workplace discrimination under the Americans with Disabilities Act (ADA), a federal law that requires employers to reasonably accommodate employees’ disabilities. The May 18 ruling by U.S. District Judge Joseph F. Leeson, Jr., accepted an argument by attorneys for Kate Lynn Blatt, a transgender woman, that a provision in the ADA excluding protection for “gender identity disorders” should be narrowly construed to avoid a potential violation of the Equal Protection Clause.  Blatt v. Cabela’s Retail, Inc., 2017 U.S. Dist. LEXIS 75665 (E.D. Pa.).

Blatt, who is also alleging sex discrimination by her employer, Cabela’s Retail, Inc., was diagnosed with gender dysphoria in October 2005. She alleges that her gender dysphoria “substantially limits one or more of her major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational function.”   The ADA provides protection for people suffering from physical or mental impairments that substantially limit one or more of their major life activities.

Blatt claims that shortly after she was hired by Cabela’s in September 2006, she began to experience discrimination, culminating in her termination in February 2017. The court’s decision does not provide much factual detail, because it is narrowly focused on Cabela’s motion to dismiss the portion of Blatt’s complaint that relies on the ADA.

Part of the opposition to the ADA in Congress in 1990 focused on the possibility that the proposed law could be interpreted to prohibit discrimination against sexual minorities – gays, lesbian, bisexuals, and transgender people – on the theory that “abnormal” sexuality was a “disability” within the meaning of the statute. To combat this argument, the bill was amended to provide that “homosexuality and bisexuality are not impairments and as such are not disabilities under this Act.”  The provision goes on to say that the term “disability” “shall not include transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”  It also excludes protection for people afflicted by “compulsive gambling, kleptomania, or pyromania; or psychoactive substance use disorders resulting from current illegal use of drugs.”

This provision has long been considered to exclude any protection for transgender people related to their gender identity under the ADA. During the debate over the bill, it was made clear that this would not deny protection to transgender people who suffer from other disabling conditions, such as blindness, deafness and the like, not related to their gender identity.

Cabela’s asked the court to dismiss the two ADA counts of Blatt’s four-count complaint: failure to accommodate her gender dysphoria, and retaliation against her for reporting discrimination and requesting accommodations for her disability. Cabela’s argued that because of the exclusionary provision, any claim related to Blatt’s gender identity was excluded from coverage.  Cabela’s was not seeking in this motion to dismiss Blatt’s sex discrimination claims under Title VII.

Blatt’s attorneys countered with the argument that denying protection for a disability without a rational justification would violate Blatt’s right to equal protection of the laws under the 14th Amendment, but that the court could avoid having to consider the constitutionality of the statute by interpreting it to cover Blatt’s claims.

Judge Leesom accepted Blatt’s argument, finding that there is a “fairly possible” interpretation of the exclusionary provision, “namely, one in which the term gender identity disorders is read narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

Leesom breaks down the text of the exclusion into “two distinct categories: first, non-disabling conditions that concern sexual orientation or identity, and second, disabling conditions that are associated with harmful or illegal conduct. If the term gender identity disorders were understood, as Cabela’s suggests, to encompass disabling conditions such as Blatt’s gender dysphoria, then the term would occupy an anomalous place in the statute, as it would exclude from the ADA conditions that are actually disabling but that are not associated with harmful or illegal conduct.  But under the alternative, narrower interpretation of the term, this anomaly would be resolved, as the term gender identity disorders would belong to the first category described above.”

The judge found that this interpretation was consistent with controlling precedents in the 3rd Circuit, which covers the federal courts in Pennsylvania.  The 3rd Circuit Court of Appeals has endorsed the view that the ADA, as “a remedial statute, designed to eliminate discrimination against the disabled in all facets of society, must be broadly construed to effectuate its purposes.”  This requires a narrow reading of any exclusionary provisions.  This is also consistent with 2008 Amendments to the ADA that emphasized the Congressional purpose to allow a liberal interpretation of the concept of disability so as to provide maximum protection against unjustified workplace discrimination.

Leesom held that because a narrow interpretation of the exclusionary provision would avoid raising the constitutional equal protection question, it was his “duty to adopt it,” and the motion to dismiss should be denied.

This ruling does not necessarily mean that Blatt will ultimately win her case, but it will remove the employer’s argument that her case cannot be brought under the ADA.   Even if she had lost this motion and suffered dismissal of her ADA claim, Blatt could still litigate a sex discrimination claim, as the 3rd Circuit has accepted the argument that anti-transgender discrimination may be attacked as sex discrimination under Title VII by using the sex-stereotype theory that was approved by the Supreme Court in 1989 in the Price Waterhouse v. Hopkins case.  But finding ADA coverage is very important, because that statute imposes a duty of reasonable accommodation to enable an employee with disabilities to work, while Title VII does not impose any gender-related accommodation requirements other than, arguably, some accommodation to pregnancy and childbirth.  The ADA also has provisions governing medical testing and confidentiality of medical information, which may be useful for individuals dealing with gender dysphoria as well.

Blatt is represented by Sidney L. Gold, a Philadelphia lawyer, with assistance from the Civil Justice Clinic of Quinnipiac University School of Law, as well as Neelima Vanguri, an attorney at Gold’s law firm.

Another Federal Judge Lets Gay Plaintiff Pursue Discrimination Claim under Title VII

Posted on: November 22nd, 2016 by Art Leonard No Comments

One of the nation’s most senior federal trial judges, Warren W. Eginton (age 92) of Connecticut, rejected an employer’s motion to dismiss a Title VII sex discrimination claim brought by an openly gay employee in a November 17 ruling.  Boutillier v. Hartford Public Schools, 2016 U.S. Dist. LEXIS 159093, 2016 WL 6818348 (D. Conn.).  Eginton, who was appointed by Jimmy Carter in 1979 and has been a senior judge (semi-retired) since 1992, accepted the argument that Title VII can be interpreted to ban sexual orientation discrimination, despite prior contrary rulings by the U.S. Court of Appeals for the 2nd Circuit, to which his decision can be appealed.

 

Eginton’s ruling came less than two weeks after a federal district judge in Pennsylvania, Cathy Bissoon, appointed by Barack Obama, issued a similar ruling in EEOC v. Scott Medical Health Center, bucking contrary appellate precedent in the 3rd Circuit Court of Appeals.  Could this be the beginning of a trend?

 

Lisa Boutillier, a lesbian who formerly taught in the Hartford Public School system, claimed that she had suffered discrimination and retaliation because of her sexual orientation and physical disability in violation of the Connecticut Fair Employment Practices Act, the Americans with Disabilities Act, and Title VII of the Civil Rights Act.  Because Connecticut law explicitly bans sexual orientation and disability discrimination, she could have brought her case in state court and, by confining her claims to state law, she could have avoided ending up in federal court where adverse circuit precedent might have doomed her Title VII claim.  Instead, however, her attorney, Margaret M. Doherty, included the federal claims and filed in the U.S. District Court, prompting the school district to file a motion arguing that Title VII does not cover this case.  The case could remain in Judge Eginton’s court only if he found that Boutillier could assert a potentially valid claim under either or both of the Americans with Disabilities Act or Title VII of the Civil Rights Act. Eginton concluded that Boutillier failed to allege facts sufficient to qualify as a person with a disability under the ADA, so her ability to maintain the action in federal court turned entirely on whether she could allege a sex discrimination claim under Title VII.       There is little doubt from her factual allegations that if Title VII covers this case, Boutillier will have stated a potentially valid claim and avoid summary judgment against her.

 

Judge Eginton devoted most of his opinion to the Title VII question.  He sharply disputed the Second Circuit’s prior rulings refusing to allow sexual orientation discrimination claims under Title VII.  “Early interpretations of Title VII’s sex discrimination provisions reached illogical conclusions based on a supposed traditional concept of discrimination, which, for example, determined that discrimination based on pregnancy was not discrimination based on sex,” he began his analysis, noting that Congress had overruled that mistaken early Supreme Court decision by amending Title VII.  He said that the pregnancy case “and other similar decisions that imposed incongruous traditional norms were misguided in their interpretations regardless of whether Congress had been able to overrule them.”  He charged that these early cases were mistaken because “they failed to take the ordinary meaning of the Act’s text to its logical conclusions . . . .  The converse of the majority’s decision,” wrote Eginton, “and equally absurd, would be to hold that an exclusion in coverage for prostate cancer does not discriminate against men based on sex.  Such conclusion represent a fundamental failure of ordinary interpretation.”

 

He found a similar error of reasoning in the Second Circuit’s approach to sexual orientation claims.  He noted that when Congress overruled the pregnancy case, the House Report stated: “It is the Committee’s view that the dissenting Justices correctly interpreted the Act.”  The 2nd Circuit has premised its view on lack of legislative history showing that Congress intended to protect gay people from discrimination when it included “sex” in Title VII in 1964.  “Acknowledging that the legislative history on whether sexual orientation should be included in the category of sex under Title VII is slight,” wrote Eginton, “it is difficult to glean the absence of prior intention merely from subsequent efforts by Congress to reinforce statutory civil rights protections” by adding “sexual orientation” to federal law, as the 2nd Circuit has repeatedly done.  He pointed out that the Supreme Court has cautioned against relying on legislative inaction as an indication of legislative intent.

 

More importantly, however, he wrote, “straightforward statutory interpretation and logic dictate that sexual orientation cannot be extricated from sex: the two are necessarily intertwined in a manner that, when viewed under the Title VII paradigm set forth by the Supreme Court, place sexual orientation discrimination within the penumbra of sex discrimination.”

 

The judge pointed out the inconsistency between the 2nd Circuit’s approach to sexual orientation and its cases about race discrimination.  The 2nd Circuit has accepted the argument that it is race discrimination when an employer discriminates against an employee for engaging in an interracial relationship.  “The logic is inescapable,” wrote Eginton: “If interracial association discrimination is held to be ‘because of the employee’s own race,’ so ought sexual orientation discrimination be held to be because of the employee’s own sex.”  The 2nd Circuit’s cases are “not legitimately distinguishable,” he argued.  “If Title VII protects individuals who are discriminated against on the basis of race because of interracial association (it does), it should similarly protect individuals who are discriminated against on the basis of sex because of sexual orientation – which could otherwise be named ‘intrasexual association.’”

 

He pointed out that the Supreme Court’s key decision in Price Waterhouse v. Hopkins “bolsters” his conclusion, in holding that “sex stereotyping could constitute discrimination because of sex. . .  Indeed, stereotypes concerning sexual orientation are probably the most prominent of all sex related stereotypes, which can lead to discrimination based on what the Second Circuit refers to interchangeably as gender non-conformity.”  The 2nd Circuit has refused to extend this reasoning to sexual orientation cases, however, using an analysis that Eginton maintains is “inherently unmanageable, as homosexuality is the ultimate gender non-conformity, the prototypical sex stereotyping animus.”

 

He quoted extensively from a recent 7th Circuit decision, Hively v. Ivy Tech Community College, where a 3-judge panel of that court dismissed a sexual orientation discrimination claim because of circuit precedent, but two members of the panel submitted an opinion suggesting that the circuit should be reconsidering its position.  Since then, the 7th Circuit has voted to grant “en banc” review in the case, with reargument scheduled for November 30.

 

Eginton pointed out the paradox stemming from the 2nd Circuit’s position.  “Essentially, employers are prohibited from discriminating against employees for exhibiting stereotypical gay behavior, yet, at the same time, employers are free to discriminate against employees for actually being gay.”  Thus, Eginton, concluded, he would follow the lead of the 2nd Circuit’s interracial discrimination case instead of its past dismissal of sexual orientation discrimination claims “by interpreting the ordinary meaning of sex under Title VII to include sexual orientation, thereby obviating the need to parse sexuality from gender norms.”  Eginton pointed out that the EEOC adopted this view in 2015, the 7th Circuit agreed to a full rehearing in Hively, and a 2nd Circuit panel will soon rule on appeals from trial court dismissals of sexual orientation claims in several cases from New York.  While the 2nd Circuit’s expected ruling on those appeals “may ultimately decide the fate of plaintiff’s Title VII claims,” he wrote, “in the meantime, summary judgment will be denied.  Plaintiff has adequately established a right to protection under Title VII.”