Posted on January 13, 2012 by Marylee Abrams

U.S. Supreme Court's First Significant Employment Decision of 2012

In a unanimous decision this week, the United States Supreme Court recognized a “ministerial exception” to federal discrimination laws. Hosana-Tabor Evangelical Lutheran Church and School v. EEOC  The employment issue decided by the Court concerned the termination of Cheryl Perich, an elementary school teacher employed at a religious school.

Perich suffered from narcolepsy and was on disability leave from her teaching position. She demanded to return to her position, but she was denied the opportunity by church administrators, and she threatened to file suit for discrimination under the ADA. Her actions were determined to be insubordinate and disruptive and her conduct was viewed as damaging to working relationships, as noted in her termination letter.  “According to the Church, Perich was a minister, and she had been fired for a religious reason-namely that her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”

EEOC filed a claim asserting Perich had been fired in retaliation for threatening to file an ADA lawsuit. The case turned on whether Perich’s teaching position fell under the “ministerial exception,” which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions. The Court reviewed her job duties which included teaching a full secular curriculum, teaching daily religion classes, commissioning as a minister, and regularly leading students in prayer and worship.

The Court stated:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

The Court declined to adopt a rigid formula for deciding when an employee qualifies as a minister, but offered an analysis which reviews multiple factors and considers all of the circumstances. Key factors include whether the employee: (1) is “held out as a minister;” (2) underwent significant training; (3) was formally commissioned; and (4) performs “important religious functions.” The Court went on to explain the exception may apply even if the clear majority of an employee’s duties are non-religious, and that non-religious functions took up a vast majority of the employee’s work.

Religious employers can breathe a sigh of relief, and even shout out praise for a prayer answered. Under this ruling, more church employees will qualify under the “ministerial exception,” thus protecting churches, synagogues, and temples from federal and state discrimination suits.

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Posted on December 23, 2010 by Marylee Abrams

Credit Check On Job Applicant May Be Discriminatory

This week the EEOC filed discrimination charges against Kaplan Higher Education Corporation, alleging the use of credit checks to screen job applicants was discriminatory. Kaplan had rejected job applicants based on their credit history since at least 2008. According to EEOC, the practice had a disparate impact on black job applicants, and was not job-related or justified by business necessity.

This is actually the second recent claim against an employer who used credit checks to reject job applicants. Last month, similar charges were filed in federal court in a class action lawsuit against the University of Miami. There the job applicant had been offered a job, and quit her previous position. She was then informed she would not be hired due to her credit score.

Plaintiff’s attorneys are actively seeking class action clients who may have been rejected for a job, based on their credit score. According to the EEOC, the problem with using credit checks to screen applicants is that they are not recognized as predictors of job performance. Given the present economy many consumers have struggled with debt and their credit scores have suffered. Coupled with potential errors in credit reports, their use in making job decisions should be carefully scrutinized.

Unless an employer is hiring a CFO, or an accountant, credit scores simply do not meet the job-relatedness and business necessity tests necessary to avoid discrimination charges. Employers should rely on more reliable predictors of job performance to make their 2011 hiring decisions.  This may mean different screening and hiring processes based on individual job descriptions.

The EEOC reports, “Workplace discrimination filings with the federal agency nationwide rose to an unprecedented level of 99,922 during fiscal year 2010.” I predict this number will increase in 2011, and we will see more discrimination claims concerning the use of credit reports as well as an expansion to include other automatic job screening exclusions such as the use of criminal arrest records that don’t result in a conviction.
 

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Posted on March 4, 2010 by Marylee Abrams

A Window on the New EEOC Proposed Rules on Age Discrimination

Rule-making by a federal agency provides a great opportunity to anticipate the direction and focus of the agency. The Equal Employment Opportunity Commission (EEOC) is offering us just such a window, with a proposed new rule construing the “reasonable factors other than age” defense used by many employers.  The EEOC will be accepting comments until April 19, 2010, prior to adopting the proposed new rules

The new rule is the agency’s response to two U.S. Supreme Court decisions.  Brian Hall of the Employer Law Report blog provides a great overview of both cases, and summarizes the impact as, “Employers will be required to show that the challenged practice was reasonably designed to further or achieve a legitimate business purpose and was reasonably administered to achieve that purpose.“

The proposed new EEOC rules provide for a “prudent employer” standard to assess whether or not an employer relied on reasonable factors in making an employment decision, and includes this list of examples which are not exhaustive:

(i) Whether the employment practice and the manner of its implementation are common business practices;

(ii) The extent to which the factor is related to the employer's stated business goal;

(iii) The extent to which the employer took steps to define the factor accurately and to apply the factor fairly and accurately (e.g., training, guidance, instruction of managers);

(iv) The extent to which the employer took steps to assess the adverse impact of its employment practice on older workers;

(v) The severity of the harm to individuals within the protected age group, in terms of both the degree of injury and the numbers of persons adversely affected, and the extent to which the employer took preventive or corrective steps to minimize the severity of the harm, in light of the burden of undertaking such steps; and

(vi) Whether other options were available and the reasons the employer selected the option it did.

The proposed rules offer a glimpse into the future of the EEOC. It would not hurt to begin to follow these suggestions in making business decisions which may have a disparate impact on older workers now, especially in RIF or lay-off situations. The EEOC window looks pretty clear. 
 

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