First impressions count

In an issue of first impression deciding whether a teacher at a sectarian school classifies as a "ministerial employee," the court held the district court erred in its legal conclusion classifying plaintiff as a ministerial employee and the "ministerial exception" did not bar her claims against defendant.

The case arose from plaintiff's employment relationship with defendant, which terminated plaintiff from her teaching following an illness. Plaintiff filed a charge of discrimination and retaliation with the EEOC alleging defendant discriminated and retaliated against her in violation of her rights under the ADA. The parties did not dispute "religious institutions" include religiously affiliated schools and defendant met this requirement. Thus, the first requirement under the ministerial exception was present. The primary issue was whether plaintiff served as a ministerial employee. She spent approximately 6 hours and 15 minutes of her 7-hour day teaching secular subjects, using secular textbooks, without incorporating religion into the secular material. Thus, it was clear her primary function was teaching secular subjects, not "spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship." The fact she participated in and led some religious activities throughout the day did not make her primary function religious. Teachers were not required to be "called" or even Lutheran to conduct these religious activities. In addition, the fact defendant had a generally religious character - as do all religious schools by definition - and characterized its staff members as "fine Christian role models" did not transform plaintiff's primary responsibilities in the classroom into religious activities. The district court relied on the fact defendant gave plaintiff the title of commissioned minister and held her out to the world as a minister by bestowing this title on her. "However, the title of commissioned minister does not transform the primary duties of these called teachers from secular in nature to religious in nature." The "primary duties analysis" requires objective examination of "an employee's actual job function, not her title, in determining whether she is properly classified as a minister." Further, contrary to defendant's assertions, plaintiff's claim would not require the court to analyze any church doctrine.

In the end, this is, like we said in Texas, a case of putting lipstick on a pig. Or, a rose by any other name would smell as sweet. Courts are willing to look beyond titles in assessing the substantive position under these circumstances.

EEOC v. Hosanna-Tabor Evangelical Lutheran Church & Sch.

ADAAA and the 'Interactive Process': What Employers should be doing now

With the enactment of the ADA Amendments Act of 2008 (ADAAA) and the new expansive interpretation of “disability,” employers will more frequently face the issue of whether an applicant or employee can be “accommodated.”

The determination of whether and how to accommodate an employee involves engaging in an “interactive process” with the employee. The interactive process is a dialogue
between the employer and employee designed to identify the precise limitations resulting from the disability and the potential reasonable accommodations that would enable the employee to perform the essential functions of his or her job.

The law is clear that employers have an affirmative duty to engage in this dialogue to explore whether there are actions the employer can take so the employee can continue to work. What is less than clear, however, is when this duty arises.

Obviously, the duty to engage in the interactive process is triggered when an employee requests an accommodation; however, the duty can be triggered in several less obvious ways. For example, employers are advised to initiate the interactive process when any of the following occurs: an employee presents with work restrictions or is limited to “light duty” work; an employee (or his or her representative) informs you that he or she is suffering from an impairment or
disability; or an employee appears to have difficulty performing his or her job.

Once an employer has knowledge of any of the above, it should promptly meet with the employee to determine whether the employee can be reasonably accommodated. Employers can demonstrate good faith in attempting to provide a reasonable accommodation by doing the following:

• Analyzing the job at issue and identifying its essential functions and purpose;
• Meeting with the employee who requests an accommodation and asking the employee what might help him or her;
• Showing some sign of having considered the employee’s request; and
• Offering and discussing available alternatives if the employee’s request is too burdensome.

Every step of this interactive process should be well documented so the employer can, if necessary, defend itself against charges of discrimination. Employees are not necessarily entitled to the accommodation of their choice, but employers should explore all available alternatives that would enable the employee to continue working without imposing an undue hardship on the employer’s operations.

Employers must be mindful that disability and reasonable accommodation issues must be analyzed on a case by case basis – there is no “one size fits all” analysis--a policy, which, unfortunately, is conducive to both litigation and relatively intense effort to prevent litigation.

Now is a perfect time to review job descriptions and consider the process to be used
when an individual requests an accommodation or submits work restrictions. Given the recent changes in the law, employers should consider reviewing past denied requests if the employee is still failing on the job. Managers and supervisors should also be instructed to consult with Human Resources when an employee seeks an accommodation and to refrain from taking immediate action to either refuse or grant
the request.

The Crystal Ball: ADA, Breastfeeders, GINA

Usually I like to focus on current issues, but just as I emphasize to clients to be proactive, so, too, it's good for lawyers to think proactively about issues that might affect people in the future. One of those increasingly likely concerns are classes of employees that will receive protection under the law.

ADA Amendments

On September 23, 2009, the Equal Employment Opportunity Commission issued proposed regulations under the ADA Amendments Act of 2008 (ADAAA) which was effective January 1, 2009. The period for submitting comments to the proposed regulations has expired. The proposed regulations leave no doubt that vast numbers of heretofore "non-disabled" employees and applicants will now fall under the protection of the ADAAA. An individual is now disabled if any one of an expansive number of "major life activities" is limited or restricted – and not necessarily "significantly" limited. "Mitigating measures" such as medication which controls high blood pressure, high cholesterol or diabetes or prosthetic devices or hearing aids can no longer be considered when making this determination. Further, the proposed regulations clarify that individuals claiming to be protected because they were "regarded as" being disabled no longer have to prove that an employer regarded them as substantially limited in a major life activity. The foregoing major changes to federal disability law will greatly increase the number of employees (and applicants for employment) entitled
to protection under the ADAAA.

GINA

The employment provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA) became effective on November 21, 2009. Employers with 15 or more employees now are prohibited from discriminating against employees or applicants based upon genetics or genetic information. Under GINA, employers are prohibited from using genetic information in making employment decisions, intentionally acquiring genetic information or disclosing genetic information. "Genetic information" is defi ned expansively under GINA and includes not only information about an employee's genetic tests and genetic tests of family members, but also includes information related
to family medical history. Therefore, information that is routinely shared at some workplaces by employees regarding family member illnesses/medical conditions may subsequently give rise to a claim of genetic discrimination should the employee subsequently be laid off or terminated. These claims will no doubt be included in employment discrimination lawsuits.

Sexual Orientation and Gender Identity

Federal legislation prohibiting discrimination on the basis of sexual orientation and gender identity likely will pass this year. Proposed federal legislation would add sexual orientation and gender identity or expression to the list of protected
classes under Title VII of the Civil Rights Act of 1964, as amended, and would apply to employers with 15 or more employees.

Breastfeeders

Proposed federal legislation, dubbed the Breastfeeding Promotion Act of 2009, would add lactating mothers to the list of protected classes under Title VII of the Civil Rights Act of 1964, as amended. The proposed legislation would make breastfeeding
and expressing breast milk protected activities. Additionally, the proposed legislation requires employers to provide lactating mothers reasonable break times to express milk and a private place, other than a bathroom, to express milk. Versions of proposed federal health care also contain language requiring
breaks for lactating mothers. Similarly, about half of the states have passed or proposed legislation encouraging or requiring employers to provide breaks to lactating mothers.

With so many protected classes, it may be increasingly difficult to find somebody who isn't protected in some manner. From a practical policy perspective, I think this moves us closer and closer to a 'just cause' standard when considering discharging an employee, and an increasingly 'inflexible' labor market.

Seventh Circuit applies Gross

The Seventh Circuit overturned its precedent and held that a plaintiff in an ADA case alleging that she was discriminated against by an employer who regarded her as disabled had to demonstrate that the perceived disability was the but-for cause of the adverse employment action taken against her.

The court reasoned that the Supreme Court in Gross v. FBL Fin. Servs., had essentially held that the importance that the court attached to the express incorporation of the mixed-motive framework into Title VII suggests that when another anti-discrimination statute lacks comparable language, a mixed-motive claim will not be viable under that statute. The upshot is that unless a statute provides otherwise, demonstrating but-for causation is part of the plaintiff’s burden in all suits under federal law.

While the ADA explicitly incorporates the remedies in Title VII available for disparate impact cases, it did not expressly incorporate the codification of mixed motives liability in 42 U.S.C. § 2000e-2(m). Because the plaintiff did not demonstrate that the plaintiff's perceived disability was the but-for cause of her termination, the district court's decision that the defendant was liable for discrimination had to be reversed.

Stay tuned: we'll see how ADA amendments may alter this result in the future.

Serwatka v. Rockwell Automation Inc., No. 08-4010 (2010)