Some noteworthy labor and employment developments from the past week, in no particular order:
Court rules against Christian teacher who wouldn’t use kids’ names, preferred pronouns. A federal judge in Indiana ruled against a high school orchestra teacher who refused, for religious reasons, to address his students by their preferred pronouns or use their chosen names. The Brownsburg Community School Corporation had adopted a rule that transgender students would be addressed by the names registered in the school database. (Parents could update names in the database if their children transitioned.)
John Kluge, a Christian who believes that sex is binary and immutable, objected to addressing transgender students by their registered names. As an accommodation to his beliefs, he and the school corporation initially agreed that he could address all students by their last names only, “like a sports coach.” However, the school corporation received complaints from some students and the faculty advisor of a student LGBT group, among others. After being told that things were not working out, Mr. Kluge held firm. He was ultimately told that he should resign at the end of the school year, although he was allowed to continue using last names during the remainder of the year. (Whether he resigned or was terminated is another long story that I won’t get into here.)
Judge Jane Magnus-Stinson granted summary judgment to the school corporation on Mr. Kluge’s religious accommodation claim under Title VII (finding that accommodating his beliefs would have been an undue hardship for the school corporation), and also on his claim of retaliation.
“Minister on minister” harassment is covered by the — you guessed it! — ministerial exception, court says. Sandor Demkovich was the music director (and, thus, a “minister”) for St. Andrew the Apostle (Catholic) Parish in Calumet, Illinois. Mr. Demkovich is gay and also has a number of health problems. His pastor — who was also his supervisor — allegedly made disparaging remarks about his sexual orientation and his medical condition. (After Mr. Demkovich married his partner in 2014, his employment with the parish was terminated.)
He originally sued for discrimination, and his lawsuit was dismissed because of the ministerial exception to Title VII and the Americans with Disabilities Act. Then he filed an amended lawsuit, claiming hostile work environment. A federal district court dismissed the hostile work environment claims based on sexual orientation and marital status (among the reasons, because there was “a religious justification” for the pastor’s alleged comments) but allowed the disability-based harassment claims to proceed. Last year, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that all claims should proceed.
The full Seventh Circuit vacated the panel decision and ruled this week that all of Mr. Demkovich’s claims should be dismissed because they were barred by the ministerial exception. According to the majority,
The protected interest of a religious organization in its ministers covers the entire employment relationship, including hiring, firing, and supervising in between. [W]e 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.'”
(Citations omitted, emphasis added.)
There is a split in the circuits regarding whether hostile work environment claims are subject to the ministerial exception. (The Tenth says yes, the Ninth says no, and the Fifth and Eleventh haven’t done it “cleanly,” according to the Seventh Circuit majority.)
Jocelyn Samuels is confirmed for a second term on the EEOC. Vice Chair Samuels, who was originally appointed by President Trump to fill a Democratic vacancy on the Equal Employment Opportunity Commission, was confirmed by the U.S. Senate this week for another term, which will expire in 2026. Before joining the EEOC, Ms. Samuels was Executive Director of the Williams Institute of the UCLA School of Law. According to its website,the Williams Institute “is dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy.” The Vice Chair also has extensive experience with the federal government, including as Director of the Office of Civil Rights for the U.S. Department of Health and Human Services and as Acting Attorney General at the U.S. Department of Justice during the Obama Administration.
(The EEOC won’t have a Democratic majority until after next summer, when the term of former Chair Janet Dhillon (R) expires.)
Jennifer Abruzzo’s nomination as NLRB General Counsel clears Senate Committee. President Biden’s nominee for General Counsel of the National Labor Relations Board has made it out of committee, meaning that she will get a Senate vote in the not-too-distant future. Ms. Abruzzo was with the NLRB for 23 years and was Acting General Counsel after Richard Griffin, an Obama appointee, resigned in 2017. Ms. Abruzzo left the NLRB after Peter Robb became GC under the Trump Administration. Then Mr. Robb was fired by President Biden right after the latter took office. Got all that straight? No?
And, speaking of Peter Robb’s termination . . . A federal judge in New Jersey ruled this week that the President has the prerogative to fire the NLRB General Counsel and to designate an Acting General Counsel. The employer, Amerinox Processing, Inc., had argued that the President did not have this authority, and therefore that an NLRB Regional Director’s petition for an injunction brought under Section 10(j) of the National Labor Relations Act should not be granted. (Challenges to the validity of Mr. Robb’s firing are being raised in other cases, but I believe this is the first court ruling we’ve had.)
Have a great weekend, and stay cool!
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.