Religious Discrimination

Cue the Organ Music: Court Administers the Ministerial Exception to Music MinisterCan an organist really be considered a church minister? In a detailed and unique opinion, an Illinois federal court applied the First Amendment’s religious clauses to a church employee who claimed he had been discriminated against due to his age and national origin. While it is unlikely that many of us will confront such a factual situation, the case does provide some lessons about the importance of job descriptions and case-by-case factual inquiries.

The Demoted Organist

Since 1992, the Plaintiff, Stanislaw Sterlinski, was the Director of Music at St. Stanislaus Bishop and Martyr Parish in Illinois. In 2014, Sterlinski was demoted, and instead of running the music program (with all that entailed) he only played the organ at church functions. He was no longer full-time and lost his benefits. Sometime after the demotion, Sterlinski was fired. He subsequently filed suit against the Catholic Bishop of Chicago claiming he was demoted and then terminated because of age discrimination, national origin discrimination and retaliation.

The church moved to dismiss the claims based on the First Amendment ministerial exception. The court granted the motion as to the demotion from Director of Music, but permitted limited discovery on the question of whether Sterlinski’s organist job qualified as ministerial. The church filed for summary judgment claiming that as an organist Sterlinski was a minister and that the First Amendment protected the church’s employment decision because of the protection of freedom of religion. As such, the court’s main focus was on whether Sterlinski’s job counted as a minister and whether the functions he performed as an organist were ministerial in nature.

Does Music Matter?

The most interesting part of the court’s opinion is its detailed analysis of the role that music plays in church functions. Why did the court look at this? The court first noted that case law shows that the First Amendment grants a ministerial exception to employment discrimination laws; “ministers” cannot sue  a religious-institution employer for race, sex or other discrimination. The purpose of the exception is to ensure that “the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” However, in this case, the applicability of that exception depended on whether Sterlinski’s job as an organist, and solely an organist, rose to the level of minister. In order to make this determination, the court had to figure out if music was such an essential part of worship that Sterlinski’s playing of it counted as ministering to the faithful.

In support of their claim that playing the organ at church functions was a ministerial function, the church presented an affidavit from the Office of Divine Worship that stated that music played and sung at Mass is never “simply music,” but is instead sung prayer. The church also submitted a church document specifically emphasizing the organ in worship, stating that the instrument is “accorded pride of place” due to its size and ability to generate emotion during worship. These pieces of evidence, coupled with the court’s deference to a religion’s own designation of what constitutes religious activity, were enough to sway the court that music plays a significant role in the church’s services.

Sterlinski countered these arguments by stating that he wasn’t allowed to pick the music played in the services and only “robotically played notes from sheet music.” He argued that these facts took him out of the role of ministerial function. On the first point, the court noted that his lack of choice in picking the music wasn’t that different from a priest being told what scripture to read based on a liturgical calendar. On the second point, the court cited several cases where accompanists were found to be performing ministerial functions even if they just played the notes on the page. The court noted again that official church doctrine establishes that music conveys a religious message and instrumentalists who play it are important ministers of the faith. Based on all these reasons, the court found that Sterlinski performed ministerial functions, even as only an organist, and therefore his suit could not proceed.

My Workplace Doesn’t Have an Organ, So Who Cares?

Understandably, this district court opinion will have a direct effect on a very small group of cases (if any). However, the court’s attention to detail and the evidence shows how important it is to have specific documents and testimony to back up an employment decision. Here, the church was able to provide specific evidence as to the importance of some of the job duties of the organist position.

As we preach (pun intended) from this blog all the time, be sure your employment decisions are consistent with your policies and your job descriptions. Nothing gives a lawyer more heartburn than to hear that an employer has no documentation to support an employment decision.

(Cue the sad organ music.)

Religious Liberty v. Gender Identity – Sixth Circuit Grants Summary Judgment to EEOC in Transgender Discrimination CaseLike the recent proliferation of sexual harassment discussions in the workplace, issues concerning transgender employees are slowly but surely confronting employers and policies that may reinforce sex and gender stereotypes. How should employers react if (and let’s be honest, when) they learn that an employee is transitioning from one sex to another? What are the potential consequences of adverse employment actions based on transgender status? EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. illustrates not only the expansion of the definition of sex discrimination under Title VII, but also the fragility of defenses to Title VII based on religious beliefs.

Background

Aimee Stephens was biologically male and presented herself as male during the six years that she was employed as a funeral director at R.G. and G.R. Harris Funeral Homes. Stephens informed the funeral home owner, Thomas Rost, that she would be having sex reassignment surgery and begin presenting herself and dressing as a woman at work. A few weeks later, Rost terminated her, asserting that he sincerely believed that a person’s sex was an immutable God-given gift and allowing Stephens to present herself as a woman would violate his religious beliefs.

Stephens filed an EEOC charge alleging that she was terminated because of her sex. The EEOC made a reasonable cause determination against the funeral home, was unable to conciliate the charge, and ultimately sued the funeral home for violating Title VII by terminating Stephens on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes.

Funeral Home Prevails in District Court

The funeral home argued that it did not violate Title VII by requiring Stephens to comply with a sex-specific dress code because the policy equally burdened male and female employees. Alternatively, the funeral home argued that it should not be forced to comply with Title VII because employing Stephens while she presented herself as a woman would constitute an unjustified substantial burden on Rost’s sincerely held religious beliefs in violation of the Religious Freedom Restoration Act (RFRA).

At the summary judgment stage, the district court ruled that Stephens could not pursue a Title VII claim based on her transgender or transitioning status. Nevertheless, the district court found direct evidence that the funeral home had discriminated against Stephens on the basis of her sex because Stephens failed to conform to the funeral home’s sex or gender-based stereotypes. Despite its direct evidence finding, the district court granted summary judgment to the funeral home, holding that the RFRA precluded the EEOC from enforcing Title VII against the funeral home, as doing so would substantially burden Rost and the funeral home’s religious exercise. The court found that the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive means to achieve its presumably compelling interest in ensuring that Stephens was not discriminated against on the basis of her sex.

Sixth Circuit Reverses District Court and Grants Summary Judgment to EEOC

In a detailed opinion, the Sixth Circuit not only reversed the district court, but granted summary judgment to the EEOC. First, the Court agreed that the funeral home engaged in improper sex stereotyping when it terminated Stephens for wishing to present herself in a manner that contradicted the funeral home’s expectation of how a biological male should present himself. Highlighting Price Waterhouse v. Hopkins and its own decision in Smith v. City of Salem (also involving a transgender employee), the Sixth Circuit stated that the funeral home’s decision to fire Stephens “fell squarely within the ambit of sex-based discrimination” that these opinions forbid. The Court also noted that the funeral home failed to establish a non-discriminatory basis for Stephens’ termination and even admitted that she was not fired for performance-related issues.

Next, the Sixth Circuit ruled that discrimination on the basis of transgender and transitioning status violated Title VII. The Court explained that discrimination “because of sex” inherently included discrimination because of a change in sex. It added that:

“[A] transgender person is someone who ‘fails to act and/or identify with his or her gender’—i.e., someone who is inherently ‘gender-nonconforming.’”

Title VII required gender to be irrelevant to employment decisions, and gender was not irrelevant if an employee’s attempt to change his or her sex led to an adverse employment decision.

Regarding the funeral home’s RFRA defense, the Sixth Circuit explained that the funeral home had not met its burden. Under RFRA, the funeral home had to demonstrate that the government action at issue—i.e., the enforcement of Title VII—would substantially burden a sincere religious exercise. Although the Court conceded the sincere religious exercise, it held that the burdens that the funeral home identified were not substantial. In addressing the funeral home’s argument that allowing a funeral director to wear the uniform of the opposite sex would distract the loved ones of the deceased and hinder their healing process, the Sixth Circuit held that a religious claimant could not rely on customers’ presumed biases to establish a substantial burden under the RFRA. In addressing the funeral home’s second argument that forcing the funeral home to violate Rost’s faith would significantly pressure him to leave the funeral industry, the Sixth Circuit held that tolerating Stephens’ understanding of her sex and gender identity was not tantamount to supporting it, and bare compliance with Title VII did not amount to an endorsement of Stephens’ views regarding the mutability of sex. Because the funeral home did not establish that Rost’s religious exercise would be substantially burdened by requiring the funeral home to comply with Title VII, its RFRA defense failed. Still, “in the interest of completeness,” the Court clarified that even if Rost’s religious exercise was substantially burdened, enforcing Title VII was the least restrictive means of furthering the government’s compelling interest in eradicating workplace discrimination against Stephens.

Takeaways

The Sixth Circuit’s opinion undeniably illustrates the extent to which the federal government will go to enforce anti-discrimination laws as they relate to the LGTQI community. This case is one of the EEOC’s first lawsuits on behalf of a transgender individual and it would not be unrealistic to believe that more will follow. Consequently, employers should pay close attention to transgender rights in the workplace and the rulings of other circuit courts on related issues.

Employers should consider these guidelines:

  • Remain cognizant of your responsibility to prevent and address any form of sex discrimination, whether it involves sexual harassment, sex or gender stereotypes, gender identity, and/or disparate treatment on the basis of sex.
  • Properly train employees and supervisors on how to communicate, interact with, and/or discipline one another in ways that avoid hostile, offensive, or discriminatory conduct.
  • Ensure that any adverse employment action is supported by a legitimate, non-discriminatory reason, preferably one that is performance-related or involves the violation a known employment policy or procedure.

As demonstrated here, there is no guarantee that a person or institution’s religious beliefs will be a sufficient defense to evade liability under Title VII.

It’s Still Flu Season and Mandatory Flu Vaccines Can Still Cost You

Remember that case we told you about last year with the flu vaccines and the EEOC suing for employees on religious discrimination grounds? To recap– in Equal Employment Opportunity Commission v. Mission Hospital a federal district court in North Carolina denied the hospital’s motion for summary judgment, letting the case move forward. That meant that three employees and the EEOC were going to trial in a case about whether their hospital-employer discriminated against them on religious grounds. Well, that case has settled to the tune of $89,000. Not a record setter but real money and a good reminder to look at your flu vaccine program to make sure it is well within the legal limits.

Quick Reminders for Mandatory Flu Shot Programs

  • When an employee’s religious belief conflicts with an employer’s mandatory flu shots, the employer must provide a way for employees to request an accommodation (which, by the way, Mission Hospital did).
  • Once an employee requests the accommodation, the employer can (1) dispute that it is a sincerely held religious belief (riskiest path), (2) provide a reasonable accommodation (path of least resistance but maybe not necessary), or (3) demonstrate that it could not reasonably accommodate the employee’s religious needs without undue hardship (somewhere in between).
  • Step back, and be sure to treat employees the same whether they want or don’t want the vaccine. If a number of employees got to opt out for non-religious reasons, make sure you can distinguish them from your religious objectors. Oh—and make sure to clearly document all of this.