The Office of Federal Contract Compliance Programs (“OFCCP”) has issued a new directive reminding its staff members of their obligation to recognize the religious freedom of federal contractors. Here’s a link to the new directive: Directive 2018-3. Here’s a link the OFCCP press release about the directive: Press Release.
The directive was issued in response to several recent decisions from the United States Supreme Court on religious freedom, and President Trump’s executive order which “reminded the federal government of its duty to protect religious exercise — and not to impede it.” Thus, the OFFCP reminded its staff that:
• They “cannot act in a manner that passes judgment upon or presupposes the
illegitimacy ofreligious beliefs and practices” and must “proceed in a manner
neutral toward and tolerant of … religious beliefs.”
• They cannot “condition the availability of [opportunities] upon a recipient’s
willingness to surrender his [ or her] religiously impelled status. ”
• “[A] federal regulation’s restriction on the activities of a for-profit closely held
corporation must comply with [the Religious Freedom Restoration Act].”
• They must permit “faith-based and community organizations, to the fullest
opportunity permitted by law, to compete on a level playing field for …
• They must respect the right of “religious people and institutions … to practice
their faith without fear of discrimination or retaliation by the Federal
As a practical matter, the new OFCCP directive does not provide much clarity on a key religious issue: whether government contractors can discriminate against LGBT persons based upon religious beliefs. Indeed, I previously wrote that President Trump will not rescind President Obama’s Executive Order prohibiting LGBT discrimination: Trump and LGBT. For now, government contractors should proceed cautiously if they want take employment actions based upon religious beliefs.
This morning, the United States Supreme Court announced that it would not review a decision from the Eleventh Circuit Court of Appeals, which held that sexual orientation is not protected by Title VII of the Civil Rights Act of 1964.
Jameka Evans is lesbian. After she was terminated from her position as a security guard, she filed a pro se (without a lawyer) lawsuit claiming that she was terminated because of her sexual orientation. Her case drew the attention of the Lambda Legal Defense and Education Fund and the United States Equal Employment Opportunity Commission, which helped her to argue the case as amicus curiae (friends of the court). A panel of the Eleventh Circuit ruled that Title VII of the Civil Rights Act does not protect against sexual orientation discrimination. But, consistent with numerous prior decisions, the Court also held that Ms. Evans could sue for discrimination based upon “gender nonconformity.”
The Evans decision is consistent with a long line of precedent in the Eleventh Circuit. In fact, I previously discussed this issue here: LGBT Issues In the Workplace. Nevertheless, there may be a trend developing in other courts to protect sexual orientation under Title VII. In April, the Seventh Circuit Court of Appeals ruled that Title VII applies to such claims. Those types of conflicts between Circuit Courts of Appeals often lead to decisions by the Supreme Court. Thus, it is possible that the Supreme Court will be asked to review this issue again in the future.
As I understand the procedural nature of potential discipline, each United Methodist Church Conference will be responsible for imposing any possible discipline. Nevertheless, the lawyer in me wondered if Alabama courts would review any decision by a Conference to terminate the employment of an LGBT minister.
Coincidentally, the Alabama Supreme Court recently issued a decision concerning removal of a minister. St. Union Baptist Church, Inc. v. Howard, No. 1141132, 2016 WL 2848391 (May 13, 2016). Importantly, Howard was not a case involving an LGBT minister. Instead, it involved efforts by members of a congregation to terminate a pastor because of issues such as “lack of spiritual and financial leadership.” Justice Lynn Stuart authored an opinion in which the Court found that the dispute was “was a spiritual and ecclesiastical matter in which the court could not interfere without violating both federal and state constitutional provisions.”
The Howard decision closely mirrored the extensive analysis provided by the Supreme Court in Ex parte Bole, 103 So.3d 40 (Ala. 2012). Bole was a case involving a United Methodist minister who sued for defamation and the tort of outrage after he was removed by the North Alabama Conference of the United Methodist Church. The Court refused to review those claims because they were “intertwined with the underlying investigation by the Conference, with the resolution, and with the Conference’s ultimate decision to remove” the pastor from ministry. Bole, 103 So.3d at 72.
Based upon Howard and Bole, I think it is unlikely that an Alabama state court would accept a legal challenge filed by a minister removed from the pulpit because of his or her LGBT status. Howard recognizes a slim possibility that a claim for purely contractual disputes might be justiciable. But, where the dispute centers on spiritual or ecclesiastical matters, such as the theological propriety of LGBT ministers, I think the odds are unlikely that the courts will interfere with church decisions.
The EEOC’s Fact Sheet seems to be a response to laws recently passed by States and even local governments. Among other things, those laws restrict the ability of transgender people to use restrooms consistent with their gender identity. Thus, the EEOC plainly warns that “state law is not a defense” to a transgender discrimination claim under Title VII of the Civil Rights Act of 1964.
Other than providing a warning to governmental entities, the Fact Sheet basically provides a summary of the EEOC’s previous rulings on transgender discrimination, which hold:
denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).
In addition to the EEOC’s Fact Sheet, President Obama’s Executive Order 13672 prohibits transgender discrimination by federal contractors. The Department of Labor’s Fact Sheet interpreting that order provides:
Under the Final Rule, contractors must ensure that their restroom access policies and procedures do not discriminate based on the sexual orientation or gender identity of an applicant or employee. In keeping with the federal government’s existing legal position on this issue, contractors must allow employees and applicants to use restrooms consistent with their gender identity.
I previously discussed LGBT issues here: EMERGING LGBT ISSUES IN THE WORKPLACE. The EEOC is clearly looking to enforce Title VII to prohibit discrimination on the basis of gender identity or sexual orientation. At this point, the best advice for employers is to ensure that transgender employees are provided equal access to restrooms consistent with their gender identity.
Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints. In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability. When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination. As a result of that uncertainty, employers are often sued under multiple federal statutes: Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.
Judge Acker is putting an end to that practice. In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated. Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination. In other words, the employee must prove that the characteristic was the only reason for termination.
As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation. Instead, he is making employees commit to one discrimination claim. If they refuse, he is dismissing their case in its entirety.
Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis. Under Title VII, an employee can recover if his employer had “mixed motives” for termination. As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win. I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car: LGBT Issues In the Workplace
Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals. Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.
The Eleventh Circuit Court of Appeals has released a decision which highlights the difficulties employers face in disciplining transgender employees. Chavez v. Credit Nation Auto Sales, LLC, No. 14-14596, 2016 WL 158820 (11th Cir. Jan. 14, 2016.). Chavez alleged that she was terminated from employment as a mechanic because she is a transgender person. Credit Nation responded that she was terminated because she slept for 40 minutes on-the-clock in a customer’s vehicle. The Court ruled that Credit Nation possessed a permissible reason for terminating Chavez, and affirmed dismissal of her claims for back pay and reinstatement. Nevertheless, the Court also found that Chavez presented sufficient evidence to show that her gender was a “motivating factor” in her termination, even though sleeping-on-the-job was a legitimate motivating factor as well. Chavez’s evidence of gender discrimination included: (1) the President of Credit Nation told Chavez that he was “very nervous” about her gender transition and the “possible ramifications”; (2) the President told Chavez that she was going to “negatively impact his business”; (3) the President asked Chavez not to wear a dress back and forth to work; (4) a Vice-President told Chavez to “tone it down” and be “very careful” because the President “didn’t like” the implications of Chavez’s gender transition; and, (5) Credit Nation deviated from its “normal” progressive discipline policy in terminating Chavez. The Eleventh Circuit remanded the case for a trial on whether Chavez’s transgender status was a motivating factor in the employment decision.
Chavez is the latest example of the difficult terrain that an employer must navigate when making decisions that affect Lesbian, Gay, Bisexual and Transgender employees. After Chavez, it is now well-established in the Eleventh Circuit (which reviews cases from Alabama) that sex discrimination under Title VII of the Civil Rights Act of 1964 includes discrimination against a transgender person for gender nonconformity. In short, as a general rule, transgender employees are protected by Title VII.
In contrast, the general rule is that sexual orientation (i.e., gay or bisexual) is not a protected characteristic under Title VII. Nevertheless, any lawyer will tell you that there are always exceptions to a general rule. For example, the Supreme Court has clearly held that same-sex sexual harassment is prohibited by Title VII. Additionally, there is some authority in the Eleventh Circuit indicating that discrimination on the basis of “nonconformity to gender stereotypes” might be actionable under Title VII. SeeGlenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011), but seeEEOC v. McPherson Companies, Inc., 914 F.Supp.2d 1234 (N.D. Ala. 2012)(finding there must be “obvious gender non-conformity”).
The federal government is attempting to insert itself into these uncertain waters. President Obama issued Executive Order 13672 which explicitly prevents federal contractors from discriminating on the basis of sexual orientation or gender identity. Additionally, the EEOC has taken the position that discrimination on the basis of sexual orientation is sex discrimination under Title VII.
In short, the law is in a state of flux with regard to LGBT issues. Proceed carefully before making employment decisions based upon LGBT status.