May 5, 2015

Emerging Topics in Discrimination Litigation Scott Richardson - McDaniel, Richardson, & Calhoun PLLC

Emerging Issues

1.LGBT Employment Issues in Title VII and Equal Protection

2.ADA Amendments Act of 2008

3.Act 975 of 2015

LGBT Employment Issues

14th Amendment and Title VII

✤ 14th Amendment

No State shall . . .deny to any person within its jurisdiction the equal protection of the laws.

✤ Title VII

It shall be an unlawful employment practice for an employer . . .to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin .

✤ Employment discrimination claims under both laws analyzed similarly.

✤ Absent direct evidence of discrimination, McDonnell-Douglas burden shifting framework applies

✤ prime facie case: Plaintiff (1) is a member of a protected class; (2) meeting employer's legitimate job expectations; (3) adverse employment action; and (4) similarly situated employees outside the protected class were treated differently or that there are facts permitting an inference of discrimination.

✤ Once prime facie case made, burden shifts.

✤ Employer must articulate a legitimate, non-discriminatory reason for its action.

✤ If employer makes this case, burden shifts again.

✤ Employee must then prove that the employer’s reason is a pre-text for discrimination.

Protected Classes

✤ Title VII explicitly protects: race, color, religion, sex, or national origin.

✤ 14th Amendment: Suspect classification: race & color Heightened Scrutiny: gender

✤ Does sexual orientation fit one of these categories?

A simple rule of law.

✤ Title VII specifically protects employees from discrimination because of their sex, i.e. gender discrimination.

✤ It does not protect against discrimination because of sexual orientation.

“Title VII does not prohibit discrimination against homosexuals.” Williams

It’s never that simple.

✤ Retaliation = adverse job action because employee complained of discrimination

✤ Protects employees who act with a good faith, objectively reasonable belief that the complained of practices were unlawful . . .

even if the practice is not actually unlawful under Title VII.

Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707 (8th Cir. 2000). Dawson v. Entek, 630 F.3d 928 (9th Cir. 2011)

Retaliation

✤ Courts have held that this covers complaints of discrimination based on sexual orientation.

Dawson v. Entek, 630 F.3d 928 (9th Cir. 2011).

✤ Only applies when an employee complains of harassment or adverse job action under Title VII.

More complications . . .

✤ Sexual orientation harassment and discrimination not actionable.

✤ Same-sex sexual harassment is actionable.

✤ Thus, if harassment or discrimination have a sexual nature to them, it may be actionable under Title VII

What about 14th Amendment?

✤ 14th Amendment Equal Protection clause prohibits government from drawing arbitration distinctions between groups of people.

✤ Non-suspect class discrimination subject to rational basis review.

✤ Plaintiff must show that challenged action is not rationally related to any legitimate government purpose.

✤ “any” means any conceivable state of facts that would establish a rational basis for the state action

Doe v. Perry Community Sch. Dist., 316 F.Supp.2d 809, 829 (S.D. Iowa 2004).

Rational basis for sexual orientation?

✤ “a bare congressional desire to do harm to a politically unpopular group cannot justify disparate treatment”

U.S. v. Windsor, 133 S.Ct. 2675, 2693 (2013).

✤ Unlikely that termination of an employee simply because of sexual orientation would survive rational basis review

Transgender protected class?

✤ Transgender is not a protected class under Title VII

✤ But, Title VII protects against discrimination based on a failure to conform to stereotypical gender norms.

✤ Courts are recognizing claims by transgender plaintiffs on this theory.

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). Hunter v. United Parcel Service, Inc., 697 F.3d 697 (201

ADA Amendments Act of 2008

New Definition of Disability

✤ (A) a physical or mental impairment that substantially limits one or more major life activities,

✤ (B) a record of such an impairment; or

✤ (C) being regarded as having such an impairment.

42 U.S.C. § 12102 (1)

What were those changes?

✤ Mainly affects what qualifies as a disability under the Acts.

✤ Major life activities list is expanded.

✤ Adds to this list Major Bodily Functions.

✤ Mitigating measures effects are lessened.

“Regarded As” expanded

✤ Person not actually disabled, but decision maker thought they were.

✤ Now looks only at whether the condition is a disability and whether discrimination occurred based on misperceptions about that condition

✤ McDaniel v. Milligan, 2014 WL 3700573 (E.D. Ark. July 25, 2014)

New Rules of Construction

✤ New, more inclusive rules of statutory construction added.

✤ Statute must be broadly construed in favor of finding disability.

✤ An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

✤ Disability now determined without considering mitigating measures.

42 U.S.C. § 12102(4)(D)

42 U.S.C. § 12102(4)(E)

Purpose of Changes

✤ Require Courts to broadly construe “disability” and “substantially limits”

✤ Reduce litigation over who is disabled.

✤ Focus litigation on “whether discrimination has occurred or accommodations properly refused.”

154 Cong. Rec. S8843 (daily ed. Sept. 16, 2008)

ADA Amendments Act of 2008

✤ Changed these definitions for both Title I and II.

✤ ADA Title I - disability discrimination.

✤ ADA Title II - availability of public services, e.g. public education.

✤ Also amended Sec. 504 of the Rehabilitation Act.

✤ Thus, ADAAA also expanded the class of students that must be afforded FAPE in public education.

How much of a change is this?

✤ Changes only who these laws apply to.

✤ Does not change the employer or district’s response to the disabilities.

✤ Same interactive process, same FAPE decisions.

✤ But, need to be more careful about who you are:

✦ Offerring Accommodations To ✦ Changing Employment status because of health reasons ✦ Offering special education or related services

Examples under Title II and 504

✤ ADHD - a student with this condition, but does not receive special education or related services, makes good grades in academically challenging classes.

✤ Peanut allergy - student manages it well and has no outbreaks.

Religious Freedom Restoration Act Act 975 of 2015

What’s a RFRA?

✤ Federal Religious Freedom Restoration Act or RFRA: 42 U.S.C. § 2000bb.

✤ Enacted November 16, 1993.

✤ Passed to overrule Employment Division v. Smith, 494 U.S. 872 (1990).

Employment Division v. Smith, 494 U.S. 872 (1990).

✤ Two employees of a private drug rehab organization fired because they took peyote.

✤ Denied for unemployment benefits because their discharge was for work related mis-conduct

✤ Plus, it was illegal in Oregon to possess peyote.

✤ Employees claimed they took peyote as part of a sacramental act of the Native American Church.

✤ Supreme Court ruled that the First Amendment’s Free Exercise Clause did not protect violation of an otherwise valid criminal law.

Congress didn’t like that.

✤ Passed RFRA: Unanimously in the House, 97-3 in Senate.

✤ At time of passage applied to Federal Government and States.

Federal RFRA

✤ (a) In general - Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

✤ (b) Exception - Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

✤ (1) is in furtherance of a compelling governmental interest; and

✤ (2) is the least restrictive means of furthering that compelling governmental interest.

42 U.S.C. § 2000bb-1 Free Exercise of Religion Protected

City of Boerne v. Flores, 521 U.S. 507 (1997).

✤ Congress exceeded its powers under § 5 of the 14th Amendment in applying RFRA to the States.

✤ After City of Boerne, Free Exercise Clause still applies to the States.

✤ But strict scrutiny under RFRA doesn’t apply to states or their political subdivisions (e.g. school districts).

State RFRAs

✤ In reaction, States start enacting the federal RFRA.

✤ Up to 2015, 19 states passed their own RFRAs. Most are substantially similar to the Federal RFRA.

Alabama Arizona Connecticut Florida

Idaho Illinois Kansas Kentucky

Louisiana Mississippi Missouri New Mexico

Oklahoma Pennsylvania Rhode Island South Carolina

Tennessee Texas

Arkansas’s RFRA

✤ Act 975 of 2015.

✤ Passed with a little controversy.

✤ Became effective on Gov. Hutchinson’s signature on April 2, 2015.

Arkansas’s RFRA

(a) A government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except that a government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person is:

(1) In furtherance of a compelling governmental interest; and

(2) The least restrictive means of furthering that compelling governmental interest.

codified at Ark. Code Ann. § 16-123-401 et seq.

Ark. Code Ann. § 16-123-404(a)

Who does it apply to?

✤ “Government” includes a branch, department, agency, instrumentality, political subdivision, official, or other person acting under color of state law; and

✤ "State law" includes without limitation a law of a political subdivision.

Ark. Code Ann. § 16-123-403(3) & (4)

What does this mean?

✤ It applies to school districts.

✤ Establishes a compelling interest test for some school policies and procedures.

✤ That is, government must not substantially burden religious beliefs or practices unless it has a compelling interest in restricting them and uses the least restrictive means to do so.

✤ We are to look to cases interpreting the Federal RFRA to interpret Arkansas’s RFRA. Ark. Code Ann. § 16-123-402 (2)

Substantial Burden

✤ Government action must significantly inhibit or constrain conduct or expression that manifests some central tenet of a person’s individual religious beliefs;

✤ Must meaningfully curtail a person’s ability to express adherence to his or her faith; or

✤ Must deny a person reasonable opportunities to engage in those activities that are fundamental to a person’s religion.

Weir v. Nix, 114 F.3d 817 (8th Cir. 1997)

Sincerely held religious belief

✤ Courts do not address whether the asserted religious belief is reasonable.

✤ But, belief must be rooted in religion.

✤ Doesn’t have to be mandated by person’s religion.

✤ Factual question, but often assumed in the preliminary phases of litigation.

✤ Often depends on Plaintiff’s credibility.

Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014)

Religious expression in classroom

✤ Teacher puts up posters in classroom stating his belief about religious foundations of United States. School district asks him to remove posters. Teacher objects as religious speech under Free Exercise clause.

✤ Teacher in posting in classroom under district policy was speaking in his official capacity for the district. That is teacher was speaking for the district. Thus, expression was not teacher’s but government’s.

✤ Free exercise clause did not apply to expression because it does not apply to governmental expression.

Johnson v. Poway Unified Sch. Dist., 658 F.3d 954 (9th Cir. 2011)

Religious dress

✤ Kirpan - Sikh ceremonial sword

✤ One of five articles that Sikh’s must wear after they are baptized into the faith.

✤ If you work for the IRS, it’s a crime to go to work with a blade longer than 2.5” (Ms. Tagore’s kirpan was 3”)

✤ Compelling interest in protecting the workplace.

✤ “RFRA requires the government to explain how applying the statutory burden ‘to the person’ whose sincere exercise of religion is being seriously impaired furthers the compelling governmental interest.”

Tagore v. U.S., 735 F.3d 324 (5th Cir. 2013)

Can exceptions accommodate?

✤ Gov’t must show with particularity how even a strong interest would be adversely affected by granting an exemption to the person requesting it.

✤ Tagore: IRS considered alternatives but did not explain why they were unworkable for Ms. Tagore.

✤ Even applies to schedule I controlled substances, e.g. hosaca - a hallucinogenic tea.

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).

✤ RFRA won’t help as defense to charge of selling marijuana.

✤ “In God We Trust” on money - not a substantial burden on atheists & secular humanists’ beliefs.

Other issues:

✤ No RFRA exception to paying taxes. U.S. v. Philadelphia Yearly Meeting, 322 F.Supp.2d 603 (E.D. Penn. 2004).

U.S. v. Martines, 903 F.Supp.2d 1061 (D. Hawaii 2012).

Newdow v. Peterson, 753 F.3d 105 (2nd Cir. 2014).

Other issues:

✤ RFRA did not create right for bankruptcy debtors to use disposable income for private religious school tuition.

✤ RFRA may protect paying tithe to church.

In re Watson, 309 B.R. 652 (1st Cir. BAP 2004).

In re Hodge, 200 B.R. 884 (D. Idaho 1996).

But see In re Bloch, 207 B.R. 944 (D. Colo. 1997).

Questions?

Scott Richardson 1020 W. 4th St., Suite 410 Little Rock, AR 72201 o 501-658-5274 scott@mrcfirm.com