Secular hospital claims ministerial exception

Marlon Penn – a hospital chaplain – claimed his employer New York Methodist Hospital discriminated against him on the basis of his race and religion, and retaliated against him after he filed charges with the EEOC. Even though the hospital no longer has any ties to the Methodist Church, the 2nd Circuit concluded that the 1st amendment's "ministerial exception" prevented Penn from pursuing a Title VII claim. Penn v. New York Methodist Hospital (2nd Cir 03/09/2018) [PDF].

There's no question that Penn was a minister. He conducted religious services and helped with prayer and rituals. The issue in the case was whether the hospital was a "religious institution" for purposes of the ministerial exception.

As the court put it, the hospital, "because of its history and continuing purpose, through its Department of Pastoral Care, is a “'religious group.'”

Historically, the hospital was connected to the United Methodist Church, but not any more, and now holds itself out as a secular facility. However, Penn worked in the hospital's Department of Pastoral Care which has the mission of providing an “ecumenical program of pastoral care” to patients and to “see that the needs of the whole person—mind and spirit as well as body—are met.”

The 2nd Circuit's logic is that the hospital once upon a time was a religious institution, the Department of Pastoral Care retained that character even though the hospital as a whole had gone secular, so the hospital "is a 'religious group,' at least with respect to its Department of Pastoral Care."

What about other secular hospitals? In footnote 5, the court says:

"Because this Court’s ruling is premised on the NYMH having been a religiously‐ affiliated entity and having retained a sufficient portion of its identity in the specific operation of the Department of Pastoral Care, this Court does not and need not reach the issue of whether hospitals, secular in their origins and with chaplaincies, also could properly invoke the ministerial exception."

I really don't see why the hospital's historical religious character (lost since the 1970s) has any bearing on whether it is a religious institution today.

The dissent says the majority "has set the bar far too low for employers to claim religious‐ based immunity from federal anti‐discrimination law." The dissent faulted the majority for focusing on the Department of Pastoral Care rather than the hospital as a whole.

For other discussions of this case:

Penn v. New York Methodist Hospital, No. 16-474 (2d Cir., Mar. 7, 2018); EEOC v. R.G. &. G.R. Harris Funeral Homes, No. 16-2424 (6th Cir. Mar. 7, 2018)

Hospital once linked to church and still giving pastoral care may invoke ministerial exception

Off-Duty affair with co-worker is constitutional right – 9th Circuit

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How much can an employer control an employee's off-work conduct? Certainly less in the case of public employees because they have constitutional rights.

The 9th Circuit holds that a police officer has a constitutional right not to be fired for having an off-duty extramarital affair with a co-worker. Perez v. City of Roseville (9th Cir 02/09/2018) [PDF]. This case deviates significantly from cases in two other federal circuits by requiring that the police department show some negative effect on job performance or violation of "a constitutionally permissible, narrowly tailored regulation."

Janelle Perez was a probationary police officer who was discharged after an internal affairs investigation into her romantic relationship with a fellow officer. At the time, the police chief gave her no reason for the discharge. Perez sued the police chief and other ranking officers claiming a violation of her rights of privacy and intimate association, based on the 1st, 4th, and 14th amendments.

The trial court granted summary judgment for the defendant officers, and the 9th Circuit reversed. So there's been no trial, and all we have are pleadings and pre-trial depositions and documents.

During the litigation the police chief said his decision was based on additional information that he had learned about Perez’s performance and conduct since the completion of the initial investigation. And a captain and lieutenant said things that the court thought could lead a reasonable juror to conclude that they "morally disapproved of Perez’s private sexual conduct." Add to that: The court found "sufficient circumstantial evidence to raise a genuine factual dispute about whether the Department’s three proffered reasons for terminating Perez were pretextual attempts to conceal its true motive for terminating her: the extramarital affair."

On the constitutional issue, here is where the court stands:

"We have long held that the constitutional guarantees of privacy and free association prohibit the State from taking adverse employment action on the basis of private sexual conduct unless it demonstrates that such conduct negatively affects on-the-job performance or violates a constitutionally permissible, narrowly tailored regulation. See Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir. 1983) [PDF]."

The court nodded to the fact that the 5th and 10th Circuits have issued opinions "in some tension" with the 9th's position. Those cases applied a rational basis test, but the 9th Circuit is using "heightened scrutiny," and even using a rational basis analysis the police department's actions "cannot survive any level of scrutiny without either a showing of a negative impact on job performance or violation of a constitutionally permissible, narrowly drawn regulation."

The 9th Circuit also denied qualified immunity to the defendant police chief and officers on the claim of constitutional rights to privacy and intimate association because "these rights were clearly established by our precedent in [Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir. 1983) [PDF]] such that any reasonable official would have been on notice that, viewing the facts in the light most favorable to her, Perez’s termination was unconstitutional."

One judge concurring was in agreement on the result but would rely solely on pretext, which would be a question for the jury.

I have to wonder whether there ever would have been a lawsuit if the police chief had sat down with Perez and given her a reason why she was being fired.

School's anti-picketing policy violated 1st amendment

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A public school district – anticipating a teachers' strike – adopted policies prohibiting picketing on District property, prohibited strikers from coming on school grounds (even for reasons unrelated to the strike), and prohibited signs and banners at any District facilities without advance written approval. As the 9th Circuit concluded, "The policies were motivated by the strike, and they were formally rescinded shortly after the strike ended."

The teachers' union sued, alleging violation of the 1st amendment and the Oregon constitution. The trial court granted summary judgment for the Union, and the 9th Circuit affirmed. Eagle Point Education Assoc v. Jackson County School Dist (9th Cir 01/26/2018) [PDF].

"Government speech"? – No.

The School District advanced the implausible argument (which the 9th Circuit addressed with a straight face) that its policies were a form of "government speech" by the District itself and thus not subject to the 1st amendment at all. The District's point was that the public would be getting a "garbled" message and would doubt the District's "resolve." The court discussed a couple of US Supreme Court cases, and ended up saying, "No reasonable observer would have misperceived the speech which the district sought to suppress—speech favoring the teachers' side in the strike—as a position taken by the school district itself."

Government property – Non-public forum

The court then turned to the more complex analysis of government restriction of speech on government-owned property that is a non-public forum. (Government property is generally divided into three categories: (a) public, (b) designated or limited public, and (c) non-public.) The court gave the District the benefit of the doubt, and analyzed the case as a non-public forum. As the court put it, "Speech in a non-public forum can be restricted, but the restrictions must be (1) 'reasonable' and (2) 'not an effort to suppress expression merely because public officials oppose the speaker's view.'"

Reasonable restrictions on speech? – No.

Here the restrictions were not reasonable. There was no evidence that the policies were actually needed to prevent disruption of the school.

(1) "[S]chool administrators had no indication of potential violence, disruption, or other potential harm to students or teachers or members of the public, which might have justified their actions."

(2) There was no showing that District officials actually "anticipated that signs or banners would cause substantial disruption of or material interference with school activities."

(3) The District failed to show "how signs and banners would have a harmful impact on actual operation of the schools [or] how the blanket ban would alleviate such harms."

Viewpoint neutral restrictions? – No.

The policies were not viewpoint neutral. They were enacted because of the impending strike and were rescinded after the strike ended. The court said:

"[T]he District sought specifically to restrict pro-Union speech. As the District itself argued to us, it wanted to avoid sending 'a garbled message to parents and taxpayers by allowing the striking teachers access to school property to picket, chant, and display … signs and banners denouncing the District's official policy.' The District policies were directly aimed at stifling disagreement with the District's position."

Oregon constitution

The court held that the District also violated the Oregon constitution. The 9th Circuit applied Oregon cases which have said that regulations restricting access to government property must be "content-neutral regulations of speech that are imposed for reasons of public safety, aesthetics, or other important public purposes," and the District's policies were not content-neutral and were "imposed because the District opposed the Union’s position."

All of this cost the District $100 in nominal damages plus $150,000 for the plaintiffs' attorney fees and costs, plus its own attorney fees.

AFSCME's brief in Janus v. AFSCME


Public sector labor unions are trembling at the thought of losing a significant source of funds – the "fair share" fees that non-members must pay to the unions in order to keep their jobs. Unions represent 35 percent of the government workforce, so we're looking at huge amounts of money that objectors say is being taken from employee paychecks in violation of the 1st amendment.

Janus v. AFSCME [Briefs] could upend decades of 1st amendment understanding by overruling Abood v. Detroit Board of Education, 431 U.S. 209 (1977) [Text], which upheld the constitutionality of fair share fees. Oral argument is scheduled for February 26 at the US Supreme Court, with a decision expected in the Spring.

Roman god Janus, who marks all beginnings and transitions

Roman god Janus, who marks all beginnings and transitions

It seems fitting that the ancient Roman god Janus had the basic function of marking all beginnings and transitions. Janus was depicted as a god with two heads – one facing the past and one facing the future.

Everyone I know expects the Court to overrule Abood. The Court split 4-4 on this issue in Friedrichs v. California Teachers Association [PDF] in 2016. Adding Justice Gorsuch to the Court appears to provide the necessary fifth vote to overrule Abood.

The probable rationale for overruling Abood was clearly laid out in Harris v. Quinn (US Supreme Court 2014) [PDF]. You can read my summary of the Court's criticism of Abood here: Harris v. Quinn: An anti-Abood manifesto.

AFSCME filed its brief [PDF] on January 12. Here are the essential points:

1. Courts below lacked jurisdiction due to the way plaintiff entered the case.

2. Overruling Abood, and applying exacting scrutiny, is inconsistent with the original meaning of the 1st amendment.

3. The Court has never applied strict scrutiny when the government acts as employer. Fair share fees implicate employee speech, not citizen speech.

4. Abood provides a fair balance between speech rights and the government's interests as an employer. The government has legitimate interests in preventing free-riders and in having a well-funded exclusive representative for its employees.

5. There is a sound distinction between political lobbying and collective bargaining.

6. Overruling Abood would be inconsistent with stare decicis.

If you want to see what Janus's brief [PDF] is saying, read Janus files SCOTUS brief.

[For a list of current employment law cases, see Supreme Court Watch.]

Qualified immunity for university president's letter re employee


The 9th Circuit has held that a university president is entitled to qualified immunity in a due process suit arising out of an allegedly stigmatizing letter regarding an employee. Kramer v. Cullinan (9th Cir 01/03/2018) [PDF].

Ronald Kramer was employed by Southern Oregon University on an annual contract. His jobs were to be executive director of two organizations – Jefferson Public Radio and JPR Foundation. The University performed an audit which concluded that it was contrary to policy to have one person serving in both roles. Dr. Mary Cullinan – then President of the University – formed a task force to address implementation of the recommendations in the audit. Meanwhile, Kramer drew up some proposed resolutions for the JPR board. Cullinan sought legal help, and the lawyers sent a letter to JPR's lawyer, saying that the University considered Kramer's proposed resolutions counterproductive, and requested that JPR's Board not adopt the proposed resolutions. The letter also outlined potential avenues of legal redress against JPR, its board, and/or Kramer.

Among other things, the letter opined that directors' and officers' liability policies generally "exclude coverage for intentional acts, waste, or fraud." Kramer considered the following portion of the letter to be stigmatizing:

"Nor do we see a clear path to indemnity. Article X of the bylaws forbids indemnification for actions taken in bad faith or through willful misconduct. If any actions of Mr. Kramer or the Foundation's directors (including past actions and the adoption of the Proposed Resolutions) are determined to have been made in bad faith or through willful misconduct, neither Mr. Kramer nor the Foundation's directors will be entitled to indemnification, and they are unlikely to be entitled to protection under any directors' and officers' liability insurance."

The letter also requested that JPR's lawyer transmit the letter to JPR board members. The letter was made public at a JPR  board meeting, and the press was there. Later, Cullinan notified Kramer of the non-renewal of his contract.

Kramer sued the University and Cullinan asserting a number of claims. The case at hand deals with his claim that Cullinan deprived him of a liberty interest without due process of law. In response to Cullinan's motion for summary judgment on qualified immunity, the district court concluded that the letter contained stigmatizing charges against Kramer, that the charges were made public, and that the charges were connected to Kramer's termination. The district court also held that Kramer's constitutional right was clearly established. The 9th Circuit reversed, holding that Cullinan was entitled to qualified immunity.

The 9th Circuit found that the letter was not in fact stigmatizing. The court put it this way:

"The difficulty with Kramer's argument is that the Letter stopped far short of actually imputing bad faith, willful misconduct, intentional acts, waste, or fraud to Kramer. Rather, the Letter stated that if the actions were later determined to constitute bad faith or willful misconduct, insurance coverage would not be available."

As if that were not enough, the 9th Circuit also held that the constitutional right asserted by Kramer was not clearly established (a necessary element to defeat qualified immunity):

"By the time of Kramer's termination, it was clearly established law that an employer charging an employee with fraud, dishonesty, or immorality is required under the Fourteenth Amendment to afford that employee a nameclearing hearing. [citations] However, that generalized statement of the law was not sufficient to put Dr. Cullinan on notice that her particular actions violated Kramer's constitutional rights."

Friends, I could have shown that letter to any non-lawyer and they would have said that it didn't say anything naughty about Kramer. Unfortunately it took a lot of litigation to get a court to say that.

Same-sex wedding cakes – Oregon style

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Oregon's own version of Masterpiece Cakeshop v. Colorado Civ Rts Commn (awaiting decision at the US Supreme Court) was decided on December 28 – holding that cake shop owners who refused on religious grounds to make a cake for a same sex-couple violated Oregon's anti-discrimination statute. The court rejected the cake-makers' argument that the 1st amendment allowed them to refuse. Klein v. Oregon Bureau of Labor and Industries [PDF] (Oregon Ct App 12/28/2017).

Aaron and Melissa Klein, doing business as Sweetcakes by Melissa, refused to make a cake for Rachel and Laurel Bowman-Cryer's wedding. Aaron stated that he was sorry, but that they did not make wedding cakes for same-sex ceremonies because of his and Melissa’s religious convictions.

Oregon law (ORS 659A.403) prohibits a place of public accommodation from denying “full and equal” service to a person “on account of * * * sexual orientation.” So the Bowman-Cryers complained to the Oregon Bureau of Labor and Industries (BOLI). BOLI found a violation of the statute, and awarded $135,000 in damages for the Bowman-Cryers's emotional distress. The Oregon Court of Appeals affirmed the award.

The Kleins argued that there was no violation of the statute because they did not decline service “on account of” the Bowman-Cryers's sexual orientation; rather, “they declined to facilitate the celebration of a union that conveys messages about marriage to which they do not [subscribe] and that contravene their religious beliefs.” In other words, the Kleins argued that there's a difference between “gay conduct” and sexual orientation – that they're OK with gay customers so long as those customers do not use the cakes in celebration of same-sex weddings. In a lengthy discussion, the court essentially concluded that this is a distinction without a difference, rejecting the idea that the statute distinguishes between status and conduct.

The court then turned to the Kleins's argument that the 1st amendment shelters them from the Oregon statute under the facts of this case. The court wrestled mightily with a number of US Supreme Court decisions, and ended up with a sort of balancing test, summing it all up this way:

"[W]e conclude that the Kleins have not demonstrated that their wedding cakes invariably constitute fully protected speech, art, or other expression, and we therefore reject the Kleins’ position that we must subject BOLI’s order to strict scrutiny under the First Amendment. At most, the Kleins have shown that their cake-making business includes some arguably expressive elements as well as non-expressive elements, so as to trigger intermediate scrutiny. We assume (without deciding) that that is true, and then conclude that BOLI’s order nonetheless survives intermediate scrutiny because any burden on the Kleins’ expressive activities is no greater than is essential to further Oregon’s substantial interest in promoting the ability of its citizens to participate equally in the marketplace without regard to sexual orientation."

This Oregon case sounds a lot like the Masterpiece Cakeshop case – but without the lengthy argument that the cakemaker is really an artist. As for that, the Oregon court said:

"To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker’s or chef’s own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple."

Finally, the court addressed the Oregon constitution, as Oregon courts are wont to do, and concluded that the Oregon constitution does not require an exemption on religious grounds to an otherwise neutral law.

The Kleins did win on one point. They were charged with violating the statute by making statements communicating an intention to discriminate in the future. But statements made by the Kleins merely described historical events and expressed their views regarding the moral and legal issues in the litigation. They could not reasonably be understood to express the intention to discriminate in the future

Interesting case. Can't wait to see what the US Supreme Court does with Masterpiece Cakeshop.