Kentucky Employment Law Blog

Religious Discrimination and Accommodation: How Much Religious Practice Is An Employee Required to Give Up?

Title VII prohibits employment discrimination on account of religion and requires employers to reasonably accommodate its employees' religious practices unless doing so would impose an undue hardship. So where job duties and religious practice conflict there is some give-and-take: both employer and employee are required to cooperate reasonably to work out an accommodation acceptable to both. Does this require the employee to give up part of his or her religious practice? "No" the Sixth Circuit answered this question recently in Crider v University of Tennessee, No 11-5511 (July 23, 2012). 

Crider, a Seventh Day Adventist whose religious practice prohibits her from working from sundown Friday to sundown Saturday, was hired by UT as a Programs Abroad Coordinator in its study abroad program. Part of her job duties included monitoring on a rotating basis with other coordinators an emergency cell phone that students studying abroad could call in case of emergency.  Crider informed UT that she could not perform this duty from sundown Friday to sundown Saturday because it conflicted with her religious practice. UT suggested that she agree to monitor on weekends only some of the time, like "in an emergency situation or when the other two coordinators were out of town." Crider declined this suggestion and she was eventually  terminated. She filed suit claiming religious discrimination; a district court granted summary judgment to UT but the Sixth Circuit reversed.

UT argued on appeal that it had attempted to reasonably accommodate Crider's religious practice by suggesting that she be responsible for monitoring the cell phone on weekends only in emergency situations or when the other coordinators were out of town; it was Crider who was being unreasonable UT argued because she would not compromise her religious practice even this little bit. The Sixth Circuit had none of this argument and rejected it pointedly:

Although the employee is obligated to cooperate with an employer's attempt at accommodation, cooperation is not synonymous with compromise, where such compromise would be in violation of the employees' religious needs. Offering Crider fewer Saturday shifts is not a reasonable accommodation to religious beliefs which prohibit working on Saturdays. 

Robert L. Abell
www.RobertAbellLaw.com 

 

The Perils of the Pension Protection Act

The Pension Protection Act sounds like it is supposed to protect employees' retirement and pension funds.  But as illustrated by the Sixth Circuit's recent decision in Bidwell v University Medical Center, No 11-5493 (June 29, 2012), what it actually does is something else.

James Christopher Bidwell and Susan Wilson were employees of University Medical Center (UMC), where they participated in UMC's retirement contribution plans.  Bidwell and Wilson were conservative investors, and they both "elected to locate one hundred percent of their investment" in a stable value fund.  Along comes the so-called Pension Protection Act in 2006 followed by Bush Administration DOL regulations in 2007 and UMC decides to move Bidwell's and Wilson's retirement money into a different and far riskier investment fund.

UMC claimed that it had notice mailed to Bidwell and Wilson telling them that their retirement money would be moved into a riskier investment fund unless told specifically by Bidwell and Wilson, who had already elected to have their money in a stable value fund, not to move their retirement money. Bidwell and Wilson never got the notices that UMC claimed it had sent, so neither told UMC not to move their retirement monies, so UMC moved their retirement monies and caused Bidwell to lose $85,000 and Wilson to lose $16,900.

Bidwell and Wilson seem to have a pretty good case: they have both made a clear, affirmative election to have their retirement money in a stable value fund, they have never indicated to UMC that they wanted their retirement monies moved, and there is no proof that either Bidwell or Wilson actually received any notice from UMC that it was going to move their retirement monies unless told otherwise.  But the district court granted summary judgment for UMC and the Sixth Circuit affirmed. 

It is possible to read the Court's opinion and wonder what is going on. The Sixth Circuit explains that the purpose of the Pension Protection Act was to limit "employer liability for investments made pursuant to automatic-enrollment plans" and it goes on to explain how regulations issued by the Department of Labor run by George W. Bush's Administration create a "safe harbor" to insulate employers further from fiduciary liability. That so-called safe harbor here completely protected UMC, although it could do no more than claim not prove that it sent notice to Bidwell and Wilson that it was going to move their money (notwithstanding that both had already long before indicated exactly where they wanted their money) unless they were told specifically not to. Who is being protected here? Certainly not Bidwell and Wilson and certainly not their retirement monies.

Robert L. Abell
www.RobertAbellLaw.com 

Do Public Safety Employers Have A Greater Right to Punish Employees For Free Speech Than Other Public Employers?

First Amendment retaliation claims by public employees usually entail the employer asserting that its interests in maintaining order and discipline and/or precluding discord and dissension in its workplace outweigh the employee's free speech rights. This requires what is known as "the Pickering analysis" after the Supreme Court decision in Pickering v. Board of Education, 391 U.S. 563 (1968), and requires the court to determine whether the employer's institutional interests in suppressing free speech outweigh the employee's free speech rights under the First Amendment to inform the public on matters of public concern.  

Public employers come in many varieties: schools, universities, parks and recreation departments, libraries and public safety like police and fire to name just a few.  Are the interests of public safety agencies in precluding any discord and/or disruption in its workplace caused by free speech on matters of public concern entitled to greater weight than that of other public agencies? "No" the Sixth Circuit answered this question recently in Mosholder v. Barnhardt, No 10-2586 (May 11, 2012), explaining

it [is not] the rule of this Circuit that public safety employers have a greater weight placed on their interests in order and discipline than other employers have in their institutional interests.

Robert L. Abell
www.RobertAbellLaw.com 

Damages for Pain and Suffering Caused by Employer's Refusal to Accommodate Disability

Disability discrimination cases arising under the Americans With Disabilities Act can involve physical injury and physical pain and sufferng damages. These most typically will arise where an employer refuses to reasonably accomodate an employee's disability and, as a result, the employee's condition is worsened or aggravated. A number of cases have recognized that pain and suffering damages for physical injury are recoverable in these type of cases:

• Sturz v. Wisconsin Dept. of Corrections, 642 F.Supp.2d 881, 891 (W.D. Wis. 2009) ("Again, plaintiff has adduced evidence that her conditions at work not only failed to accommodate her conditions, but actually exacerbated them to the extent that she was in so much pain that she was throwing up at the end of the day. An employee should not have choose between her job and her health.")
   
   
• Olian v. Board of Educ. of City of Chicago, 631 F.Supp.2d 953, 963 (N.D. Ill. 2009) ("... she produced ample evidence that her disability worsened as a result of the Board's failure to reasonably accommodate her. She testified to increased pain in her throat ...")
  
   
• Tobin v. Liberty Mut. Ins. Co., 2007 WL 967860 (D. Mass. 2007) (although employer argued that plaintiff's bipolar disorder and other life problems, and not its failure to accommodate, was the cause of the emotional distress, the jury disagreed; the tortfeasor “takes his victim as he finds him,” and an employer can be liable for aggravating a pre-existing emotional condition)
  
   
• Melluzzo v. Public Advocate, LLC, 2006 WL 5159197 (M.D. Fla. May 31, 2006) (claims included pain from being forced to stand)
  
   
• Worthington v. City of New Haven, 994 F. Supp. 111, 114 (D. Conn. 1997) (plaintiff may seek damages for becoming totally disabled due to employer's refusal to accommodate her disability while she was its employee)
  
   
• Epstein v. Kalvin-Miller Intern., Inc., 139 F. Supp. 2d 469, 481 (S.D.N.Y. 2001) (in case under state law, jury award for emotional distress was fully supported by evidence that plaintiff's physical symptoms were aggravated and his emotional distress was severe)
  
   
• Messer v. Huntington Anesthesia Group, Inc., 218 W. Va. 4, 620 S.E.2d 144 (2005) (state law claim that failure to accommodate aggravated employees medical condition is not barred by workers' compensation exclusivity provision); Goodman v. Boeing Co., 127 Wash. 2d 401, 899 P.2d 1265 (1995) (similar)

Robert L. Abell
www.RobertAbellLaw.com 

 

A Complaint Need Not Establish A Prima Facie Case, Sixth Circuit Rules

Does a complaint of race discrimination have to establish a prima facie case under the McDonnell Douglas standard? "No" answered the Sixth Circuit in reversing a district court ruling in Keys v Humana, Inc, No 11-5472 (July 2, 2012).

Kathryn Keys filed a class-action race discrimination lawsuit against her former employer, Humana. A federal district court judge, Hon. Charles R. Simpson, for the Western District of Kentucky dismissed Keys' complaint "finding that Keys failed to plead a prima facie case of race discrimination under the burden-shifting framework of McDonnell Douglas. The Sixth Circuit reversed in an opinion written by Judge Jane Stranch explaining as follows:

• the Supreme Court unanimously held in Swierkiewicz v. Sorema, 534 US 506, 510 (2002) that "the prima facie case under McDonnell Douglas is an evidentiary standard, not a pleading requirement
  
  
• As the Supreme Court reasoned, "it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case."
  
  
• the Supreme Court has ruled that the ordinary rules of notice pleading apply to employment discrimination cases and a complaint need only give "fair notice" of the basis of the plaintiff's claims

This appears to be a case where the district court got tripped up and concluded that the Supreme Court's decisions in Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 US 662 (2009) imposed additional pleading requirements on an employment discrimination claim including allegations supporting a prima facie case. Iqbal and Twombly do apply, as the Sixth Circuit explained, but only to the extent that they require articulation of a plausible claim, noting that "plausibility occupies that wide space between possibility and probability."

Robert L. Abell
www.RobertAbellLaw.com 

 

Slow Road to Justice for Wrongfully Dismissed Countrywide Financial Executive

Gretchen Morgensen reports in the New York Times on the slow road to justice for Michael Winston, who claimed that he was wrongfully dismissed by the Countrywide Financial in 2008 and won a $3.8 million jury verdict in 2011: He Felled A Giant, But He Can't Collect. 

Robert L. Abell
www.RobertAbellLaw.com