Archive for the ‘Discrimination’ Category

Workplace religious bullies are not protected by discrimination laws, but sometimes, neither are their victims

June 19, 2013

The notion that workplace discrimination laws are easy to exploit is pure propaganda. “What do you mean, she’s suing for discrimination? She was just a bad worker!” “Nobody’s racist anymore – why do we even have racial discrimination laws anymore?” Easy statements, with a certain no-nonsense appeal, but the fact is that plaintiffs in employment discrimination cases face long odds in the courtroom. At the federal level, plaintiffs in job discrimination suits win just 15% of the time (against a 51% plaintiff win rate for all civil cases at the federal level); when the appeals process is factored in, that rate can be as low as 2%. Because of these high risks, plaintiffs’ lawyers are often hesitant to charge on a contingency basis, and so plaintiffs might find them out hundreds or thousands of dollars in legal fees before they even get to trial – and then you keep spending until you either settle (almost universally a better solution that waiting for a verdict) or, lose at trial, lose on appeal, settle after a remand, or win the plaintiffs’ lottery and actually win the case. Plaintiffs’ lawyers face stiff competition from the understaffed, underfunded, underpowered Equal Employment Opportunity Commission which, while a socially worthwhile organization, often just corrals plaintiffs into mediated settlements, usually without a lawyer of their own, helping lawbreaking employers to buy their way off the hook at discount price. In short, employee-plaintiffs have long odds with high costs against a convoluted discovery process with clients who simply can’t afford the long haul it takes to win a big case. And that’s when the EEOC isn’t talking potential clients into settling for peanuts.

Ad on top of all these things, the employee-plaintiffs’ bar sometimes gets people like Pamela Hall.

By all accounts, Pamela Hall is a bully. According to the factual background of the just-decided Hall v. Tift County Hospital Authority, Pamela Hall, a Baptist and a former quasi-supervisor with a Georgia hospital, and Amanda Dix, a staff nurse under Hall, were friends, until religion came up. After what is surely a fascinating but, sadly, judicially unread backstory in which Hall accuses Dix of sleeping with Hall’s husband, Dix reveals to Hall that she is a lesbian, and Hall’s religious beliefs seemingly launched into overdrive.

Now, being a Baptist (ie, anti-gay) with a gay subordinate is not itself fodder for a discrimination case. Neither was it a discrimination case when Hall stuck a religious tract and a condescending little note in Dix’s locker (you know the kind, the condescending Christian power-trip: ‘your sexuality makes you morally inferior to me, but I will be merciful, since it is only your sexuality I hate and that you should change, not you personally!’). And neither was it a discrimination case when Dix found herself receiving follow-up religious harassment from Hall.

So when did it become a discrimination case? According to Hall, it was when she was demoted from her supervisory position. Not fired, not transferred to Alaska, just demoted – and by all appearances, temporarily. Now clearly, she lacks the stability and people skills to be leading anyone which is why she was demoted, but instead, she claims she was demoted because of “religious discrimination.”

What Pamela Hall’s lawyer hopefully told her before going to court was that, in order for something to be discrimination, you have to be treated differently because of your religion. If you’re a Baptist who harasses her subordinates, who goes out of her way to make people uncomfortable because of personality traits that are irrelevant to job performance, then you’re no more fit to lead a team than a Hindu, a Muslim, or an atheist who does the same thing – which is why you have to find the Hindu, Muslim, or atheist who does do the same thing and isn’t demoted, or who receives a lighter punishment. You can’t just be a Baptist who gets in trouble, you have to be in trouble because you’re a Baptist and because you’re not something else.

She lost her case. Her demotion was clearly because of her inadequate leadership traits. But the real sad point here, though, is how her victim’s own case when.

Because her victim doesn’t have a case.

Georgia, like the majority of American states, provides absolutely no job discrimination protections based on sexual orientation. If Hall had gone to Dix and fired her, handing her a pink slip that said just “NO QUEERS IN MY HOSPITAL!,” that would likely have been completely legal (barring a miraculous judicial resuscitation of the moribund public policy exception, but, that’s a tale for another day). Now, a pink slip saying “NO NON-BAPTISTS!” would have been a problem, for Title VII reasons, but Title VII says nothing about sexual orientation discrimination.

Many states have had the courage to stand up to bigoted religious interests, but unfortunately, Georgia is not one of them. Workplace bullying* is bad enough when it isn’t tantamount to discriminatory or bigoted behavior, but it’s far worse when bullying is so obviously based upon pure prejudice and the law provides no remedy for the victims of such blatant aggression. Pamela Hall is the true face of the parody plaintiff, the one who truly bungled her job and abused discrimination laws as an excuse for her own incompetence. And unfortunately, if her victim hadn’t had the courage to complain to upper management, Dix might have herself seen job consequences, even been fired, and had no remedies whatsoever.

*People interested in the subject of workplace bullying and the law are encouraged to read Suffolk Law professor David Yamada’s blog on the subject.

Can American employers legally discriminate against humanists?

August 21, 2012

There’s an interesting article making the rounds about a workplace discrimination case brought in the UK that saw an employment tribunal officially recognizing “humanism” as what we in the United States would call a “protected class.” A protected class is any group of citizens against whom it would be unlawful to discriminate, whether it be in hiring, firing, serving at a bar or restaurant, or placing on ballots for election. Protected classes can include religious identities, ethnicities, veterans (and non-veterans); they aren’t limited specifically to religious or philosophical positions.

In the UK case, a musician who voiced political opinions against playing a concert with an Israeli orchestra, and was later suspended for six months over it, alleged in her complaint that among other things she was discriminated against for being a humanist. While she lost the case for lack of evidence, the tribunal held in no uncertain terms that humanism is a protected class where UK labor law is concerned.

This raises the question of whether or not American humanists would be likewise protected. Fortunately, unlike twisted miasma of European discrimination law, which is becoming redefined almost daily as the interplay between national and regional courts settles down, American law is very clear on this point. Title VII is the law we’re looking for, and it states in part that employers may not discriminate based on (among other things) “religion” in hiring decisions (with rare exceptions below), and that “religion” means:

(j) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

The qualifying language in the second half of the definition is designed to protect such legal absurdities as a Catholic church being sued for refusing to hire a practicing Orthodox Jew, or a toll booth being sued for not letting a Muslim worker lay a prayer mat down on the interstate five times a day.

So, does “religion” on this definition also include “non-religion?” Both the plain text of the act and existing case law is very clear in establishing that, yes, Title VII protects atheists. “Religious belief” is deliberately broad; it is meant to give courts as much room as possible to protect people based on their Constitutional rights to religion, non-religion, and conscience. I don’t think it’s a stretch to say that atheism is a “religious belief” insofar as it is a “belief about religion,” namely that most or all religions are wrong.

The courts have agreed. The most straightforward citation is to Akers v. Pena (you’ll need a Westlaw account to read the full article). Now, the atheist who brought this workplace discrimination suit lost the case, but not for being an atheist, just for lack of evidence. Much like the case in the article above, the appeals court in Akers went out of its way to say that

Here, appellant has alleged discrimination on the basis of religion because of his belief that there is no supreme being. He has alleged various forms of mistreatment which have occurred because of his atheism. Therefore, applying the case law mentioned above, we find that the agency improperly rejected appellant’s claim of religious discrimination for failure to state a claim.

Scrubbing out the gobbledygook, this is pretty plain language holding that a lower court’s holding held that one could not even claim discrimination over being an atheist (one would be “failing to state a claim” if one stated the claim that they were discriminated against for being an atheist) was wrong, that being discriminated against for being an atheist is actually an actionable claim. This is just part of the abundant caselaw on this question, which goes all the way up to a huge settlement by CitiGroup for discriminating against an atheist employee who happened to be the director of Tennessee’s branch of American Atheists. Clearly, their lawyers knew that discrimination against atheists was legally relevant; otherwise, they wouldn’t have settled!

The thornier question is whether or not “secular humanism” is likewise covered. We know that secular humanism has some kind of legal recognition; courts have at least found that humanism-based discrimination can at least go from the employer downward. In Taylor v. National Group, a court was considering a discrimination claim by a woman who said that she was sexually harassed, and that her employer was handing out books promoting secular humanism. The court, again, recognized that secular humanism was a legally-cognizable group for purposes of humanism, and dismissed this part of the woman’s claim only for lack of evidence (again).

But not all philosophies are treated equally. Veganism doesn’t cut it, for example. The common thread seems to be that some kind of perspective about religion or the supernatural must be in or near the nucleus of the sincerely-held opinion. While humanism has a moral and ethical component that is completely unrelated to religion, its opposition to religious thinking and claims is likewise a crucial component of secular humanism. The word “secular” is in there for a reason, after all. In sharing this particular commonality with all of the other groups that have tried and won under Title VII, secular humanism is almost certainly protected under VII’s definition of “religion,” if for no other reason than because secular humanism is philosophically inextricable from atheism, which is known to be protected. Furthermore, probably nobody would ever actually discriminate against a humanist for anything other than its atheism component, so any discrimination against secular humanism is likely to be legally tantamount to discrimination against atheists, just as someone who discriminated against people who wear turbans would have identical legal troubles to someone who discriminated against Sikhs.

Seemingly the only legally relevant obstacle to full rights for atheists is the several states whose constitutions deny atheists the right to serve in public office, but those are a joke. They are plainly at odds with the Constitution’s ban on religious tests for public office, and the courts have recognized that. The one time one of these little inquisitors’ codes was tested, it was struck down by a unanimous Supreme Court. All in all, I think it’s a foregone conclusion that American secular humanists enjoy just as many legal protections as the UK tribunal has just now confirmed that British humanists do.