Thomas Wade Young - Trials & Appeals

If you work for a faith-based organization, don’t expect protection from discrimination directed toward you own beliefs. That was the message sent by the United States Court of Appeals for the Fourth Circuit in Kennedy v. St. Joseph’s Ministries, Inc., No. 10-1792 (4th Cir. September 14, 2011).

Kennedy involved the termination of a 13-year employee’s employment after she refused to stop wearing long dresses and a cover for her hair, which “was a function of her religious beliefs” as a member of the Church of the Brethren. The employer, a nursing-care facility operated “under the direction of the Daughters of Charity, a religious order within the Roman Catholic Church” and maintained “in accordance with Catholic principles” asked Kennedy to modify her attire because it “was inappropriate for a Catholic facility and … made residents and their family members feel uncomfortable.”

The district court interpreted Title VII’s exemption for religious organizations as prohibiting a lawsuit for the termination of Kennedy’s employment, but it ruled the nursing home could be liable for harassment and retaliation based on Kennedy’s religious beliefs. Applying the plain language of the federal statute, the Fourth Circuit’s 2-1 opinion rejected the incongruous logic of the district court. It also reaffirmed that even religious organizations remain liable for other forms of prohibited discrimination: “Section 2000e-1(a) does not exempt religious organizations from Title VII’s provisions barring discrimination on the basis of race, gender, or national origin.”

With regard to religious discrimination, however, the court pointed to 42 U.S.C. § 2000e-1(a), which provides:

The meaning of this plain language, the court said, permits religious organizations to “terminate an employee whose conduct or religious beliefs are inconsistent with those of its employer.” Because religious organizations can terminate employees for religious reasons, the court reasoned it would be incompatible with the actual language of the statute to exclude other types of adverse employment decisions, short of hiring and firing. Limiting the exemption to hiring and firing decisions would also “lead to nonsensical results,” the majority wrote.

For those interested in appellate procedure, Kennedy is also interesting in that it was decided as an interlocutory appeal rather than following entry of final judgment. Additionally, the dissenting judge, who would have discharged jurisdiction and not decided the issue presented, was one of the Fourth Circuit judges who earlier voted to grant interlocutory review in the case.

In an opinion with potentially far reaching effects, the United States Court of Appeals for the Ninth Circuit determined in Solis v. State of Washington, Department of Social & Health Services that a group of Washington social workers working in the field of dependency/child in need of care (child abuse and neglect) are not exempt from the overtime compensation requirements of the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 201, et seq. (FLSA). The their responsibilities of the social workers included investigating child abuse and neglect, developing and recommending appropriate treatment plans to courts, evaluating child and family progress in meeting treatment plans, making placement decisions, and recommending whether parental
rights should be terminated.

The Ninth Circuit reversed a lower court’s order granting summary judgment to the Washington agency that employed the social workers, which had relied in large part on a Pennsylvania federal court decision holding truancy prevention case managers, who were required to have a bachelor’s degree in social work, human services, or a related field, plus three years of work experience, came within the “learned professional” exemption. The Ninth Circuit stated:

The court found the class of Washington social workers different from a group deemed exempt by the Department of Labor because the other group required more specialized education and specified work experience. Because “FSLA exemptions are construed narrowly against employers and “are to be withheld except as to persons plainly and unmistakably within their terms and spirit,” the Ninth Circuit found the broad range of degrees accepted by the Washington agency failed to satisfy the learned professional exemption from overtime requirements. The court cited decisions from a number of other courts in support of its holding, including a decision by the United States Court of Appeals for the Eleventh Circuit in Dybach v. State of Florida Department of Corrections, 942 F.2d 1562 (11th Cir. 1991), where the 11th Circuit “held that probation officers, who were required to have a bachelor’s degree in any field, including “nuclear physics” or “basketweaving,” id. at 1565-66, did not qualify for the “learned professional” exemption despite a requirement of one year of prior experience in law enforcement or corrections.”

In a 6-2 opinion, the United States Supreme Court today ruled that the antiretaliation provision of the Fair Labor Standards Act (FLSA) prohibits employers from retaliating against employees who complain orally but not in writing. The decision reverses a ruling by the Seventh Circuit Court of Appeal that oral complaints are not protected under the FLSA. The FLSA is the 1938 law that governing minimum wage, maximum hour, and overtime pay. It also forbids employers from discharging “any employee because such employee has filed any complaint” alleging a violation of the Act. 29 U. S. C. §215(a)(3).

Writing for the Court in Kasten v. Saint-Gobain Performance Plastics Corp., Justice Breyer explained that interpretation of the statutory phrase “filed any complaint” “depends upon reading the whole statutory text, considering the [statute’s] purpose and context . . . , and consulting any precedents or authorities that inform the analysis.” The court concluded that the meaning could not be deciphered from the words alone because some dictionary definitions of “filed” contemplate a writing while others use encompass oral material. Also, various state and federal laws and regulations sometimes contemplate oral filings. The Court also noted that oral filings were a known phenomenon when the FLSA was passed.

The Court noted its broader interpretation promoted the FLSA’s prohibition against “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” It also gave weight to the interpretations of the Department of Labor and the EEOC, both of which hold the view that “filed any complaint” covers both oral and written complaints.

Justices Scalia and Thomas dissented from the Court’s holding. Justice Kagan did not participate.

The US Court of Appeals for the Ninth Circuit issued a St. Patrick’s Day ruling favoring employees in reinstatement disputes arising under the Family Medical Leave Act (FMLA). The court noted that its decision is supported by case law from the Eighth, Tenth, and Eleventh Circuits. Florida is part of the Eleventh Circuit.

Sanders v. City of Newport involved a former employee’s claim that her employer interfered with her rights under the FMLA by denying her reinstatement without cause. The district court instructed the jury that the burden was on the former city employee to prove that she was denied reinstatement without “reasonable cause.” The Ninth Circuit reversed, concluding the instruction was erroneous and not harmless.

In ruling as it did, the Ninth Circuit noted that, under the FMLA, Department of Labor regulations, and the court’s own precedent, the burden of proof was on the employer to show that it had a legitimate reason to deny an employee reinstatement. Neither the FMLA nor labor department regulations reference a “reasonable cause” standard for interfering with an employee’s right to reinstatement.

In an unique twist, the case also involved equitable claims under state law. On the same evidence heard by the jury, the district court ruled that the employer violated the employee’s rights under state law and awarded damages. The Ninth Circuit reversed that ruling, too, explaining that “where legal claims tried by the jury and equitable claims tried by the court are ‘based on the same set of facts, the Seventh Amendment requires the trial judge to follow the jury’s implicit or explicit factual determinations.’” Because of the error in the district court’s FMLA jury instruction and verdict form, the court of appeals could not determine what factual findings the jury might have made with regard to the employee’s FMLA claim under a proper instruction.

In Staub v. Proctor Hospital, a widely watched case involving what is called the “Cat’s Paw” theory of liability, the United States Supreme Court has unanimously determined that employers may be liable for wrongful or discriminatory termination even where the ultimate decision maker did not have discriminatory or unlawful motives.

For employers, the decision increases the risk of liability. That said, employers who conduct thorough, independent workplace investigations will have less risk than employers who do not investigate and verify the motives of lower-level supervisors who influence adverse employment decisions.

Staub arose under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which protects service men and women from discrimination, but the decision will likely impact cases involving other forms of employment discrimination as well, especially those that require only that discriminatory intent be “a motivating factor,” such as claims arising under Title VII of the Civil Rights Act of 1964.