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    Home»Disability»Religious Institutions Update: January 2023 – Discrimination, Disability & Sexual Harassment
    Disability

    Religious Institutions Update: January 2023 – Discrimination, Disability & Sexual Harassment

    adawebsitehelper_ts8fwmBy adawebsitehelper_ts8fwmJanuary 10, 202317 Mins Read
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    Key Cases

    COVID-19

    Vaccination Mandate Conforms with First Amendment

    In Kane v. De Blasio, No. 21 Civ. 7863, 21 Civ. 8773,
    2022 WL 3701183 (S.D. N.Y. Aug. 26, 2022), the district court ruled
    that New York City Department of Education employees who refused
    the COVID-19 vaccination for religious reasons failed to
    demonstrate that the city’s COVID-19 vaccination mandate
    violated the Free Exercise Clause, Establishment Clause, Equal
    Protection Clause, substantive or procedural due process, or was
    unconstitutional under Title VII as applied to employees. The court
    ruled that the vaccine mandate is facially neutral and generally
    applicable. There is no evidence that it was adopted with religious
    animus; thus, the Free Exercise Clause is not violated. As relates
    to the Establishment Clause, the court cited a “long history
    of vaccination requirements in this country and in this
    Circuit.” The court rejected the Equal Protection Clause claim
    because the plaintiffs did not point to similarly situated persons
    who have been treated differently. As relates to substantive due
    process, the court ruled that it has consistently recognized that
    the constitution embodies no fundamental right that in and of
    itself would render vaccine requirements unconstitutional or that
    it shocks the contemporary conscience. Concerning procedural due
    process, the court ruled that the plaintiffs failed to identify a
    protected liberty interest or a property interest in employment. As
    relates to the Title VII claim, the court noted that the circuit
    court and other courts have found that vaccination is a proper
    condition of employment. The court dismissed the complaint and
    denied injunctive relief.

    Religious Accommodation

    Defendant Failed to Accommodate Plaintiff’s Religious
    Practices

    In Suarez v. State, 517 P. 3d 474 (Wash. App. Div. 3,
    2022), the court ruled that a fact issue precluded summary judgment
    on a claim under the Washington Law Against Discrimination (WLAD)
    that the employer failed to accommodate the employee’s
    religious practices and for wrongful discharge in violation of
    public policy. Employees allegedly called in as
    “unavailable” without further explanation so frequently
    that the school had a regular process for covering the shifts and
    negotiated mandatory overtime in the collective bargaining
    agreement. “If the school is accommodating unplanned leave for
    secular reasons other than sickness, it raises a question as to
    whether accommodating Suarez’s request caused an undue
    hardship,” the court stated in its opinion. The plaintiff, a
    certified nursing assistant (CNA), sued Yakima Valley School, a
    certified residential nursing facility serving disabled adults,
    contending that her work schedule conflicted with her practice of
    observing a weekly Sabbath and several religious festivals
    throughout the year. A “reasonable accommodation” of an
    employee’s religious practices under WLAD is one that resolves
    conflict between the employee’s work duties and religious
    beliefs and does not impact the employee’s benefits or job
    status. It requires the employer to take active or affirmative
    steps to resolve a scheduling conflict if it can be done without
    undue hardship. “Undue hardship” arises in the event an
    action requires significant difficulty and expense to the employer.
    For example, requiring the school to accommodate Suarez’s
    religious beliefs by violating the collective bargaining agreement
    would cause an undue hardship. Judge Robert Lawrence-Berrey
    dissented on the grounds that the request for accommodation was an
    undue burden; the school fulfilled its duty to reasonably
    accommodate by offering the plaintiff nine annual days off for her
    religious practices, in excess of the two annual days off permitted
    by the collective bargaining agreement, and sent a general email to
    employees about a job opening for a position with a schedule not
    conflicting with the plaintiff’s religious practices.

    Free Exercise

    Washington Law Prohibiting Conversion Therapy Conforms with
    Free Exercise Clause

    In Tingley v. Ferguson, 47 F. 4th 1055 (9th Cir. 2022),
    the court of appeals ruled that a Washington state law banning the
    practicing of conversion therapy on minors by licensed providers
    not acting under religious auspices was a neutral law of general
    applicability consistent with the Free Exercise Clause and was
    rationally related to the legitimate state interest of protecting
    the physical and psychological well-being of its minors, and thus
    did not violate the therapists’ free speech rights. The court
    determined that Washington’s law fits within a well-established
    tradition of constitutional regulations on the practice of medical
    treatments and is not void for vagueness. The court affirmed the
    district court’s dismissal of the plaintiff’s claims.

    Public Accommodations Law Violated Pageant’s First
    Amendment Rights

    In Green v. Miss United States of America, LLC, 52 F.
    4th 773 (9th Cir. 2022), the court ruled that applying the Oregon
    Public Accommodations Act (OPAA) to force a beauty pageant operator
    to accept a transgender woman as a contestant would violate its
    free speech rights, and Oregon’s stated reasons for passing
    OPAA did not constitute a compelling interest required to justify
    requiring the pageant to accept a transgender woman as a
    contestant. The court was not concerned that the pageant is
    for-profit. It found that “who competes and succeeds in a
    pageant is how the pageant speaks” (italics original). The
    pageant allows only “natural born female[s]” to compete
    and does not believe that biological males who identify as female
    are women. The court found that the pageant communicates these
    views on womanhood every time it uses the word “woman” in
    a manner deserving First Amendment protection. “Requiring Miss
    United States of America to allow Green to compete in its pageants
    would be to explicitly require Miss United States of America to
    remove its ‘natural born female’ rule from its entry
    requirements.”

    Public Accommodations Law Violated Photographer’s
    First Amendment and KRFRA Rights

    In Chelsey Nelson Photography, LLC v. Louisville/Jefferson
    Cnty. Metro Govt
    ., No. 3:19-cv-851, 2022 WL 3972873 (W.D. Ky.
    Aug. 30, 2022), the district court ruled that a county public
    accommodations ordinance, which guaranteed equal access to goods
    and services regardless of sexual orientation, violated a wedding
    photographer’s rights under the First Amendment and Kentucky
    Religious Freedom Restoration Act (KRFRA). The court decided that
    the photographer’s photographs were speech, the ordinance
    compelled the photographer to speak in a way she considered
    objectionable as contrary to her faith, the ordinance was an
    impermissible content-based restriction on the photographer’s
    speech, the ordinance proscribed more speech than necessary to
    serve the county’s stated interest in equal access in violation
    of the Free Speech Clause and the accommodation provision was
    underinclusive. The record was unrebutted that the plaintiff would
    serve LGBT customers so long as the photographs she produces would
    not carry a message that contradicts her beliefs, but she would not
    create photography in support of weddings of same-sex, polyamorous
    or open marriage couples. The court enjoined the defendant from
    applying the ordinance to the plaintiff.

    RLUIPA

    Prisoner Stated RLUIPA Claim Related to Strip Searches by
    Transgender Guards

    In West v. Radtke, 48 F. 4th 836 (7th Cir. 2022), the
    court of appeals ruled that a prison policy requiring male
    prisoners to submit to strip searches by transgender male guards
    imposed a substantial burden on a Muslim inmate’s religious
    exercise in violation of the Religious Land Use and
    Institutionalized Persons Act (RLUIPA). According to Islamic
    beliefs, the plaintiff is forbidden to expose his naked body to
    anyone but his wife. The plaintiff added that he would be punished
    more harshly if strip searched by a transgender male than male. The
    prison offered this justification for its cross-sex strip-search
    policy: an accommodation for the plaintiff would violate the equal
    employment rights of its transgender employee under Title VII and
    the Equal Protection Clause. The court rejected both claims. The
    prison offered no argument why exempting the inmate would inflict
    an adverse employment action on its transgender employees.
    Furthermore, Title VII permits sex-based distinctions in employment
    when sex is a bona fide occupational qualification. As relates to
    the equal protection argument, the court observed that
    accommodating the inmate’s request is substantially related to
    the important governmental objective of respecting the RLUIPA and
    constitutional privacy rights of inmates and, thus, consistent with
    intermediate scrutiny. The court of appeals also revived the
    plaintiff’s Fourth Amendment claim related to the strip
    searches. The court reversed the district court and remanded for
    the entry of injunctive relief on the inmate’s RLUIPA claim and
    further proceedings on his Fourth Amendment claim.

    Permitting Regulations Preventing Religious Services Amounted
    to Prior Restraint

    In Spirit of Aloha Temple v. Cnty of Maui, 49 F. 4th
    1180 (9th Cir. 2022), a nonprofit spiritual service organization
    brought suit against the county planning commission for denying its
    application for special use permit to hold religious services and
    other events on agriculturally zoned property in violation of the
    First Amendment, Equal Protection Clause and RLUIPA. The court
    agreed that the County of Maui permitting regulations amounted to
    an unlawful prior restraint as they allowed the commission
    unbridled discretion to deny a special use permit based on a
    subjective determination whether “[t]he proposed use would not
    adversely affect surrounding property.” The commission was not
    required to provide any explanation as to why the use would be in
    violation nor what specific aspect of the given conditions would be
    violated. “An adverse effect could just as easily be causing a
    sinkhole or creating unsafe road conditions as it could be cutting
    off public access to fishing or engaging in religious activities
    that neighbors dislike.” The court also ruled that it was not
    required to give preclusive effect to the commission’s decision
    on whether denying the organization’s application for the
    special use permit to hold religious services would violate RLUIPA
    or the constitution because the issue was not fully and fairly
    litigated. Planning department staff controlled the presentation of
    evidence, it was not obvious that witnesses could be subpoenaed or
    cross-examined, witnesses did not testify under oath, the
    proceeding was not adversarial and state court review only
    addressed state law.

    Ministerial Exception

    Ministerial Exception Doctrine Bars Guidance Counselor’s
    Discrimination Claim

    In Starkey v. Roman Catholic Archdiocese of Indianapolis,
    Inc.
    , 41 F. 4th 931 (7th Cir. 2022), the court ruled that the
    ministerial exception doctrine barred a former supervisory guidance
    counselor’s Title VII discrimination, retaliation and hostile
    work environment claims and state tortious interference with
    contract and employment relationship claims against a private
    Catholic school. The court determined that the school entrusted her
    with communicating the Catholic faith to children, supervising
    guidance counselors and advising the principal on matters related
    to the school’s religious mission. The school also held her out
    as a minister. She was identified as a “minister of the
    faith” in her job description and employed her under a
    “Ministry Contract.” The plaintiff argued that even if
    she was entrusted with religious responsibilities, she should not
    be considered a minister because she never engaged in religious
    matters or held a formal religious title. The court disagreed:
    “Under Starkey’s theory, an individual placed in a
    ministerial role could immunize themselves from the ministerial
    exception by failing to perform certain job duties and
    responsibilities. Religious institutions would then have less
    autonomy to remove an underperforming minister than a
    high-performing one. But an employee is still a minister if she
    fails to adequately perform the religious duties she was hired and
    entrusted to do.” Both of the plaintiff’s state law claims
    litigate her employment relationship just like Title VII. State
    claims that implicate ecclesiastical matters such as this are
    barred by the ministerial exception doctrine.

    A three-judge panel decided the case, with Judge Frank
    Easterbrook concurring. He would have decided whether the religious
    exemption to Title VII barred the case before reaching the
    constitutional question. He said it “is a stretch to call a
    high school guidance counselor a minister,” but joined the
    majority’s conclusion because “[d]esignating the position
    as a minister by contract cannot be called pretextual.” Still,
    he would have decided for the school based on a
    “straightforward reading” of 42 U.S.C. s. 2000e-1(a),
    which states “[t]his subchapter shall not apply to … a
    religious corporation,” “coupled with s. 2000e(j),”
    which “tells us that religion includes ‘all respects of
    religious observance and practice, as well as belief.’
    “

    Church Not Entitled to Immediate Appeal of Adverse Ministerial
    Exception Ruling

    In Tucker v. Faith Bible Chapel Int’l, 54 F 4th 620
    (10th Cir. 2022), the court of appeals issued an order denying
    en banc review of a panel’s determination that the
    defendant church is not entitled to an immediate appeal from the
    district court’s interlocutory ruling denying the church
    summary judgment on its ministerial exception defense due to
    genuinely disputed issues of material fact about whether the
    plaintiff qualifies as a minister for purposes of the exception.
    Among the grounds given, the court 1) disagreed with the dissent
    from the denial of en banc consideration (Bacharach, J.)
    that the defense “presents a structural limitation on
    courts’ authority to hear employment cases”; 2) pointed to
    the fact-intensive nature of the inquiry into whether a religious
    employee should be deemed a minister; and 3) observed that the
    Second Circuit held that a religious employer was not entitled to a
    collateral appeal from the denial of a motion to dismiss on grounds
    of church autonomy.

    Providing Transportation Aid to Just One Private School in an
    Attendance Area Is Constitutional

    In St. Augustine Sch. v. Underly, No. 16-C-0575, 2022
    WL 4357454 (E.D. Wis. Sept. 19, 2022), the district court ruled
    that the decision of a school district and Wisconsin’s
    superintendent of public instruction to deny a private religious
    school benefits under a Wisconsin statute that provided for
    transportation aid to students of private schools, because another
    school of the same denomination in an overlapping attendance area
    qualified for busing, did not violate the Free Exercise Clause or
    Establishment Clause and did not violate the ministerial exception
    doctrine. The court ruled that the plaintiffs did not deny the
    religious school benefits because it was religious, but because the
    benefits program limits benefits to one school per sponsoring group
    per attendance area regardless of the school’s religious
    character. The plaintiffs took the schools’ religious
    professions at face value and decided that, because the schools
    used identical words (i.e., “Roman Catholic”), they were
    affiliated. This isolated determination did not involve intrusive
    government inquiry into religious affairs. The fact that the
    plaintiffs considered a religious title or label did not lead
    either to a violation of the ministerial exception doctrine.

    Ecclesiastical Abstention Doctrine

    Counts Claiming Violation of the Nonprofit Code Are Not Subject
    to Ecclesiastical Abstention

    In Auguste v. Hyacinthe, 346 So. 3d 67 (Fla. 4th DCA
    2022), the court of appeal reversed the trial court’s dismissal
    of three counts of the appellants’ complaint based on the
    ecclesiastical abstention doctrine, while affirming the trial court
    on one count. The court of appeal determined that the trial court
    did not err in dismissing a cause of action for conversion because
    the appellants alleged therein that they “are entitled to
    possession and control of the Church … books and its
    property” (italics original). This would require the trial
    court to determine which faction controlled the church. The court
    of appeal reversed the trial court’s dismissal of three counts
    alleging violation of the Not for Profit Corporation Act, Section
    617.0808, Florida Statutes. The appellants alleged that a church
    director who was removed continued to act on behalf of the church
    by both holding a secret meeting with only part of the church’s
    membership to expel the founder and another as directors and
    officers as well as filing false annual reports with the Florida
    Department of State that listed himself as director and pastor,
    falsely listed two others as officers of the church, and falsely
    memorialized the removal of the founder and another as officers. In
    the absence of church bylaws, the Not for Profit Corporation Act
    governs the procedures for removing board members. Resolution of
    the counts claiming a violation of Chapter 617 at least at the
    motion to dismiss stage “require only the application of
    neutral principles of law.” The court of appeal added that
    after further proceedings, the landscape of the case could change.
    The court also included a footnote stating that it was not deciding
    the propriety of applying the ecclesiastical abstention doctrine to
    congregational religious organizations. In dissent, Judge Martha
    Warner stated that she would not apply it except to hierarchical
    religious organizations.

    Ecclesiastical Abstention Prevented Breach of Fiduciary Duty
    Claim, But Not Governance-Related Inquiries

    In Nation Ford Baptist Church, Inc. v. Davis, 382 N.C.
    115 (2022), the appellee sued claiming that the board of directors
    exceeded its authority under church bylaws when it purported to
    terminate him without vote of the congregation at a “Special
    General Meeting,” whereas the church and board of directors
    assert that under the real bylaws the appellee was an at-will
    employee who could be terminated by the board of directors at any
    time. The Supreme Court of North Carolina ruled that which set of
    bylaws were in effect at the relevant time, whether the church and
    board followed the procedures in the bylaws, and whether there was
    a contract of employment between the parties that was breached were
    factual and legal questions that the trial court could answer by
    reference to neutral principles of corporate, employment and
    contract law. But the ecclesiastical abstention doctrine precluded
    the trial court from deciding a pastor’s claim against
    individual directors of the church for breach of fiduciary duty
    because the court cannot answer whether the board acted in the best
    interests of the church, whether the directors acted without
    justification in terminating him as claimed in his tortious
    interference count or whether funds were properly devoted to the
    church’s benefit as alleged in the count for misappropriation
    of church funds. The court viewed this as a jurisdictional issue,
    not an affirmative defense. The church filed suit seeking a
    preliminary injunction prohibiting the appellee from entering the
    church after terminating him when he continued to act as senior
    pastor. The appellee countersued for an injunction establishing
    that he remained the senior pastor and seeking damages. The trial
    court granted the church’s preliminary injunction, but denied
    its motion to dismiss the pastor’s counterclaim and enabled him
    to amend it. The church appealed. The court of appeals affirmed
    2-1. The supreme court affirmed in part and reversed in part the
    court of appeals’ decision affirming the trial court’s
    denial of the church’s motion to dismiss and remanded the case
    to the court of appeals for additional remand to the superior court
    for proceedings consistent with the opinion.

    Disaffiliating Church’s Property Belongs to
    Denomination

    In Hebron Cmt’y Methodist Church v. Wis. Conf. Bd. of
    T’ees of United Methodist Church, Inc
    ., No. 22-cv-037,
    2022 WL 2915612 (W.D. Wis. July 25, 2022), the district court ruled
    that the defendant had a statutory and common law right to
    ownership of church property upon the plaintiff’s
    disaffiliation. The plaintiff sued the defendant seeking a
    declaration that Wis. Stat. 187.15(4), which directs that the real
    and personal property of any local Methodist church “shall
    rest” upon its dissolution in the General Conference of the
    United Methodist Church, violates the First Amendment and other
    constitutional provisions. The court granted the defendant’s
    pending motion to dismiss without addressing these constitutional
    issues because the plaintiff failed to plead a viable claim to
    ownership of the property whether or not the statute is
    enforceable. As the first step, the court decided that it could
    apply “neutral principles of law.” Were Wis. Stat.
    187.15(4) unconstitutional, Wis. Stat. 187.08 requires that title
    to a defunct religious society vest in the next higher authority in
    the denomination. Moreover, Wisconsin common law directs the court
    to look at the provisions in the church constitution, which
    provides that the property is held in trust for the General
    Conference.

    The content of this article is intended to provide a general
    guide to the subject matter. Specialist advice should be sought
    about your specific circumstances.



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