This blog post was authored by Alex Polishuk

Pregnant EmployeeOn July 14, 2014, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidelines on employer responsibilities with regard to pregnant employees under federal workplace laws.  The Enforcement Guidance on Pregnancy Discrimination and Related Issues (“Guidance”) advances the EEOC’s position that the Pregnancy Discrimination Act (“PDA”) and

EEOC SealThe EEOC issued two informal discussion letters critiquing policies and forms used by unidentified public employers when making disability related inquiries of employees.  Although informal discussion letters are not “official” EEOC opinions, they provide guidance on an employer’s legal obligations.  In these informal letters, the EEOC reviewed the agencies’ fitness for duty exam forms and

Service DogEmployers navigate a morass of federal and state employment laws on a daily basis.  Some of the more vexing and confusing laws are those related to employees with disabilities.  Often it is difficult for employers to know whether an employee is disabled or what the disability could be.  Questions that frequently arise concern whether an

Men-in-Wheelchair.jpgUnder the ADA and FEHA, the employer has the duty to identify and implement a reasonable accommodation to allow a disabled employee to perform the essential functions of the job. Common pitfalls for employers in determining appropriate accommodations are:

1.     Over-reliance on the written job description

Job descriptions are critical in the disability interactive process

apple.JPGThis blog entry was authored by Hengameh S. Safaei 

In a case of first impression, K.M. v. Tustin Unified School District, the Ninth Circuit held that a public school district’s compliance with its obligations to a deaf or hearing-impaired student under the Individuals with Disabilities Education Act (“IDEA”) does not necessarily establish compliance

TimeSheet.jpgMost of us assume that showing up for work is an essential part of our job. Most employers have attendance policies in place that require employees attendance at the work location.  However, courts have found that regular attendance is not necessarily an essential function for all jobs.  In a recent case, an employee with a

This post was co-authored by Michael Blacher

Supreme-Court.jpgOn January 11, 2012, the U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, in which the Court recognized for the first time the existence of the “ministerial exception” to employment discrimination laws.  That exception allows religious organizations, including religious schools, to make employment decisions affecting “ministers” without being subject to anti-discrimination laws.  The ministerial exception is a judicial creation rooted in the First Amendment’s Free Exercise and Establishment clauses, and has been applied for many years by federal and state courts. 

Most observers of the Court expected it to recognize the exception, as it did.  But the more difficult question was how broadly the Court would view the exception.  That is, who qualified as a “minister?”  The Hosanna-Tabor case involved not an actual “minister” – or priest, rabbi, or other individual with strictly religious duties – but a teacher at a religious school who instructed primarily on secular topics. 

The facts of Hosanna-Tabor are as follows (as reported in our earlier blog post of October 11, 2011 following oral argument in the case).  Hosanna-Tabor Evangelical Lutheran Church and School operates a church and an elementary school.  It has two types of faculty: (1) limited-term “lay” or “contract” teachers and (2) for-cause “called” teachers.  Called teachers must complete a course of religious study and receive a certificate of admission into the teaching ministry.  They receive the title of “commissioned minister.”

In 2000, Cheryl Perich began work as a contract teacher but shortly thereafter changed her status to a “called” teacher.  Her employment duties remained essentially the same.  She taught math, language arts, social studies, science, gym, art, and music.  However, Perich also taught a religion class four days per week, attended a chapel with her class once a week, and led her classes in prayer.

In 2004, Perich went out on disability leave.  The School Board ultimately offered Perich a “peaceful release” agreement wherein she would release claims against the School in return for a monetary payment.  When Perich refused and threatened legal action, however, the Board fired her.  It gave the religious reason (as the Supreme Court described it) that “her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”

Perich filed a charge with the Equal Employment Opportunity Commission (“EEOC”) for disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”), and the EEOC decided to litigate the charge of retaliation on her behalf.  The district court determined that Perich was covered by the ministerial exception and granted summary judgment to the School.  But the U.S. Court of Appeals for the Sixth Circuit reversed.  It found that because most of Perich’s job duties did not have a religious character, and because her “primary” functions were secular, the ministerial exception did not apply. 

This week, on January 11, 2012, the U.S. Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, held that the ministerial exception did apply.  The opinion began its discussion by describing that both of the “religion clauses” of the First Amendment (the Free Exercise clause and the Establishment clause) “bar the government from interfering with the decision of a religious group to fire one of its ministers.”  The opinion then recited the history of government interference, or at times deliberate non-interference, in religious organizations’ employment decisions, from the Magna Carta through the Cold War.  The opinion uses this concise narration of history and case law as a prelude to its holding recognizing the existences of the exception.

After acknowledging the existence of a ministerial exception, the Court set about defining its breadth and limitations.  The Court’s noted that “Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree.  We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”Continue Reading Supreme Court Recognizes That The “Ministerial Exception” Under The First Amendment Precludes Retaliation Claim Brought Under The ADA

This post was co-authored by Michael Blacher

God said “Be fruitful and multiply.”  But does that make a math teacher at a religious school a “minister?”  The United States Supreme Court will soon decide.

On October 5, 2011, the U.S. Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Performance-Review.pngHow many times have you heard LCW attorneys tell you to timely and accurately complete performance evaluations?  You likely hear this advice at every Employment Relations Consortium training you’ve attended.  A recent case reminds us all how crucial honest performance evaluations and other forms of progressive discipline can be.

In the case of Dickerson v. Board of Trustees of Community College District No. 522,   Bobby Dickerson was employed as a part-time janitor by an Illinois Community College District.  Between 2005 and 2007, his supervisor gave him written warnings issued for his refusal to perform work assignments, failure to secure job-related equipment, and for leaving the worksite without permission.  In 2005, 2006 and 2007, Dickerson applied for full-time positions with the district, but never succeeded.  Shortly after his third failed attempt at a promotion, Dickerson complained to the district that he was being discriminated against because of his “personal traits” and a speech defect. 

Dickerson then received a performance evaluation in December, 2007 for the period of November, 2006 through November, 2007.  Dickerson received “unsatisfactory” ratings in three of the seven performance categories.  The supervisor also provided written comments such as, “Dickerson is consistently late for work and needs to improve;” “jobs need to be redone because of not listening to the job instructions;” and that Dickerson “does only the bare minimum to meet job requirements.”  Dickerson disagreed with the evaluation and filed a grievance with his union alleging the district gave him the evaluation in retaliation for his exercise of union activities.

In February, 2008, Dickerson filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging the district failed to promote him to a full-time position because it believed he was mentally disabled in violation of the Americans with Disabilities Act (ADA).  Dickerson had a below average IQ which indicated “mild mental retardation.”

Shortly after filing the EEOC complaint, Dickerson approached the Vice President of Human Resources and asked what he should be doing differently in order to be promoted to a full-time position.  The Vice President replied to the effect of, “you are suing your employer and you should not be suing your employer.”Continue Reading Documentation Of Poor Work Performance Defeated Claims Of Discrimination And Retaliation In Violation Of The ADA

This guest post was authored by Alison Carrinski

Kindle.jpgEmerging technologies, such as e-book readers, seem to be everywhere and growing in numbers.  E-book readers offer students the ability to download books instantaneously and carry hundreds of books on a hand-held device.  But given that some e-book readers do not have text-to-speech functionality or Braille displays