Employment Discrimination Blog

Was it illegal workplace discrimination when a church fired an employee after she refused to take the church’s advice to cease living with her fiancé, to whom she was not yet married?

Jessica Atkinson, of Perry, Georgia, believes it is.  Ms. Atkinson filed an employment discrimination lawsuit against Friendship Baptist Church, a Warner Robins church, on Oct. 3, 2012.  She claims she was fired as the nursery school coordinator after church leaders questioned her live-in relationship with her fiancé.  According to the legal complaint, Ms. Atkinson was questioned in a meeting about why she was not married, as well as about her sexual relationship with her fiancé.

Ms. Atkinson said she told church officials she believed she was being discriminated against because of her religion, even though she is a member of the Baptist Church.  She also stated that she believes she was singled out by the church because she is female.

In previous, similar lawsuits, churches have claimed the “ministerial exception.”  The ministerial exception is an exception to federal laws prohibiting workplace discrimination that states that ministers of a church may be required to adhere to the tenets of the church.

Ms. Atkinson’s lawyer pointed out that she was not a pastor, but a nursery school teacher.  The attorney also stated that membership in the church was not a requirement of Ms. Atkinson’s job, and she was not ordained as a pastor of the church in order to hold the position, which she worked in since 2007 until she was terminated.  Ms. Atkinson’s lawsuit argues that, given these facts, the ministerial exception should not apply.

A recent example of a lawsuit in which the ministerial exception was successfully applied is Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, decided by the U.S. Supreme Court on January 11, 2012.  In that case, a former church teacher alleged disability discrimination when she was terminated after notifying the school she had been diagnosed with narcolepsy.  The school hired another teacher and suggested the teacher resign due to her medical condition.  The Supreme Court applied the ministerial exception, even though the plaintiff spent the majority of her time teaching secular rather than religious subjects.  The Supreme Court’s majority opinion pointed out that the former teacher had received the title "Minister of Religion, Commissioned" and instructed students in prayer.  The Supreme Court ruled that, given those facts, the ministerial exception should apply in that case.  Thus, the teacher’s termination was upheld.

On September 10, the clerk and employees of the Magistrate Court of Murray County filed charges against the former Chief Magistrate Judge.  The charges, filed with the Atlanta Division of the U.S. Equal Employment Opportunity Commission (EEOC) allege that the employees were forced to work in a hostile work environment.  The employees separately claim that they suffered under improper employment practices and suppression of their free speech rights.

The former Chief Magistrate Judge, Bryant Cochran, had only recently resigned his post during an inquiry into whether he pre-signed arrest warrants and asked a woman for sexual favors in return for a positive outcome on her case.

Few details are available about the employees’ allegations.  What is known, however, is that the three women who signed the EEOC charges comprise the third, fourth and fifth woman to step forward recently to complain about the former judge’s inappropriate behavior.  By filing the EEOC claim, the women have secured protected status for any other county employees who have information to support the claims of a hostile work environment.

"Any employee who has witnessed or knows of these matters personally should come forward and be protected under the law," said McCracken Poston, a Ringgold, Georgia, attorney hired to represent the women.

 “The employees of the clerk’s office …  have suffered from the improper and abhorrent actions of former Judge Cochran,” added Stuart James, a Chattanooga, Tennessee, attorney also representing the female complainants.

An employer may be guilty of allowing a hostile work environment if the employees can show evidence that they were exposed to a pattern of unwanted sexual behavior, comments, or visual displays – such that they feared going to work.  The employees must also present evidence that no management action was taken in response to their internal complaints.

The Equal Employment Opportunity Commission has settled its disability discrimination lawsuit against Garney Construction Company and Georgia Power Company.  In June 2012, the EEOC announced that Garney Construction and Georgia Power will pay $49,500 and provide additional training and guidance to employees and management regarding illegal disability discrimination.

The EEOC filed the Georgia disability discrimination lawsuit on behalf of Bryan Mimmovich, who applied for a job as a front-end loader with Garney Construction, a job he had held twice previously.  Mr. Mimmovich was diagnosed with epilepsy at age 12 and had been free of seizures for more than eight years while taking anti-seizure medication. 

Garney Construction’s contract with Georgia Power required job applicants to pass a physical examination – either the Department of Transportation (DOT) physical examination, an American Society of Mechanical Engineers (ASME) physical examination for crane operators, or another equivalent medical examination.  However, federal law does not require heavy equipment operators to pass a physical examination.  Because he was taking medication for epilepsy, Mr. Mimmovich automatically failed the DOT physical examination.  Garney Construction withdrew its job offer, stating that its contract with Georgia Power prevented it from hiring Mr. Mimmovich.

Mr. Mimmovich filed a complaint with the EEOC, which filed a lawsuit against Garney Construction and Georgia Power after failing to resolve the issue via mediation and conciliation efforts.  The EEOC’s lawsuit claimed that Garney Power illegally discriminated against Mr. Mimmovich because of his disability and that Georgia Power illegally interfered with Mr. Mimmovich’s employment relationship with Garney Construction by requiring Garney to refuse to hire Mr. Mimmovich when he failed the DOT physical examination instead of requiring Garney Construction to offer Mr. Mimmovich an individualized assessment of his ability to perform the job of front-end loader operator.

To settle the lawsuit, Garney Construction and Georgia Power will pay $49,500 to Mr. Mimmovich.  Both companies will also re-distribute anti-discrimination policies and schedule employee training regarding disability discrimination and pre-employment physicals.

Employers who use pre-employment physical examinations to screen potential employees should take care to ensure that these examinations do not illegally exclude applicants who are actually qualified to perform the job for which they are applying.  Employers should consider offering individual employment assessments to applicants with disabilities and should seek qualified legal advice to answer any questions that arise during the hiring process.

Under federal law, discrimination on the basis of disability is prohibited in all employment practices. Disabled individuals are protected by the Americans with Disabilities Act (the ADA). By law, covered employers (those employing more than 15 employees), as well as all state and local governments, cannot discriminate against people with disabilities in employment. The ADA also requires employers to provide reasonable accommodations to a qualified employee or a job applicant with a disability, unless it would cause undue hardship to the employer.

What qualifies as a disability for the ADA?

Under the ADA, a person who has a physical or mental impairment that substantially limits one or more major life activities and has a record of such impairment, is considered as having a disability. Major life activities are basic activities that most people can perform without difficulty, such as breathing, eating, walking, hearing, speaking, seeing and learning. Major life activities also include basic bodily functions such as cell growth, brain functions, and neurological and endocrine functions.

Who is a “Qualified” Employee or Job Applicant?

An individual with a disability is “qualified” if he or she satisfies skill, experience, education, and other job-related requirements of the position held or desired, and who, with or without reasonable accommodation, can perform the essential functions of that position. Obviously, a person who was paralyzed would not be qualified for a job that required lots of lifting, but may be qualified for a job as an administrative assistant.

What is Reasonable Accommodation?

Employers are required to provide reasonable accommodation to a qualified disabled employee or applicant. Reasonable accommodation may include making existing facilities used by employees readily accessible to and usable by persons with disabilities; job restructuring; modification of work schedules; providing additional unpaid leave; reassignment to a vacant position; acquiring or modifying equipment or devices; adjusting or modifying examinations, training materials, or policies; and providing qualified readers or interpreters. However, an employer is not required to lower production standards to make an accommodation.

Undue Hardship

An employer is required to make a reasonable accommodation to a qualified individual with a disability unless doing so would impose an “undue hardship” on the operation of the employer's business. Undue hardship means an action that requires significant difficulty or expense when considered in relation to factors such as a business' size, financial resources, and the nature and structure of its operation.

Prohibited Inquiries and Examinations

Before offering a job applicant a job, an employer may not ask about the existence, nature, or severity of a disability.  Generally, applicants may be asked about their ability to perform job functions. A job offer may be conditioned on the results of a medical examination, but only if the examination is required for all entering employees in the same job category. Medical examinations of employees must be job-related and consistent with necessity.

Almost 2,000 current and former female employees of Wal-Mart have filed charges of discrimination in pay and promotions with the Equal Employment Opportunity Commission (EEOC). The charges were filed in 48 states (all states except Montana and Vermont), with Georgia having the third largest number of claims in the suit, at 119.

The EEOC enforces federal laws that prohibit employment discrimination. Last year, the U.S. Supreme Court denied the women the right to certify as a national class action, finding that the legal and factual issues involving the female employees did not have enough in common to be certified as a class action suit. By filing charges with the EEOC, the women protect their right to sue for discrimination. The claims date back to 1998, and include both Wal-Mart and Sam’s Club.

In addition to the charges with the EEOC, regional class actions were filed in federal courts in California and Texas in October 2011, and numerous other class actions are expected to be filed in other states this year. The lawsuits claim that attitudes were pervasive throughout Wal-Mart that men deserved more money than women, and that men were better managers. One lawsuit also alleges that job opportunities weren’t posted, but were passed along through word-of-mouth, primarily to men. The case began when a female employee was fired after she complained that she was discriminated against based on her sex. She found out that a male employee with the same job and less experience was making $23,000 per year more than she was.

By law, employers are not allowed to discriminate against employees based on sex. Currently, the Equal Pay Act requires that men and women in the same workplace must be given equal pay for equal work. Their jobs don’t have to be identical, but they must be substantially equal. Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act also prohibit compensation discrimination on the basis of sex.

Employees in who feel that they have been discriminated against in the workplace based on sex may have a claim for employment discrimination. Those individuals should seek out a qualified Georgia employment attorney as soon as possible to explore the possibility of pursuing a legal claim.

Shorter University, a Baptist college located in Rome, Georgia, recently mandated that its 200 employees sign a “personal lifestyle pledge”. The pledge declared that they reject adultery, premarital sex, and homosexuality. The pledge also required that employees abstain from using drugs and participate in local churches.

According to some sources, many faculty members have resigned or are planning to resign as a result of the pledge. Some faculty members took issue with the fact that the pledge singled out some sins but not others, while others claimed that the pledge was approved as a result of a very biased survey. Students are also said to be unhappy about the pledge. Supporters of the pledge claim that the goal was to declare what the college was all about.

So are employers allowed to discriminate on the basis of religion? Yes. Although Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating in employment based on religion, there are exceptions. Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. This exception only applies to institutions whose purpose and character are primarily religious. In order to decide whether an entity is religious, courts consider whether it’s working for a religious purpose, whether its day-to-day operations are religious, whether it’s not-for-profit, and whether it’s affiliated with a church or another religious organization.

Therefore, a private employer that is considered religious can discriminate in its hiring and general employment practices. However, there are limits to what a religious employer can do. For example, a religious employer can’t otherwise discriminate in employment on the basis of race, national origin, sex, etc. by claiming that according to its religious beliefs, their employees are not allowed to associate with people of other races.

In general, religious employers have some wiggle room in what types of employment discrimination they can engage in, although there are limits. The actions taken by Shorter University are most likely legal, although they may end up ultimately having a detrimental effect on the faculty and student populations.

This month, four Muslim men sued IHOP, claiming they were wrongfully terminated from their managerial positions because of their religion, as well as their ethnicity.

In the lawsuit, they claimed that although they got positive performance reviews, all were fired in the course of a year and were replaced by white, non-Muslim managers. They allege that one of those replacements told other managers at a meeting that “Arab men  treat women poorly and with disrespect . . . we’re going to have to let these people go and have new faces coming in”. One of the men at the meeting was fired a few weeks later for an incident that occurred while he was counseling a female employee over a mistake she made.

Late last year, a Georgia representative introduced a bill in the Georgia House of Representatives that would ban job discrimination against state employees because of their sexual orientation or gender identity. The bill failed to pass out of the House Judiciary Committee earlier this month, and is dead for the year. The representative plans to introduce the bill again next year.

Some concerns that were expressed against the bill included fears that Georgia would be required to hire pedophiles and necrophiliacs. Others were concerned the bill would serve as an affirmative action bill that would create a quota system. However, the LGBT (lesbian, gay, bisexual and transgender) community enthusiastically supports the measure, expressing that they are afraid that if their sexual orientation became known at work with the state of Georgia, they would be discriminated against or even fired. The state representative who introduced the bill believes that the bill will have more support in 2013 because it is not an election year.

Currently, 21 other states ban discrimination against public employees based on their sexual orientation. Twelve states have laws that prohibit employment discrimination against state employees based on gender identity and expression. There is no federal law that addresses employment discrimination based on sexual orientation or gender identity in the federal government. Since 1994, a bill has been proposed in the U.S. Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by nonreligious employers with at least 15 employees. The bill has not yet passed and is currently in committee.

If you feel that you have been discriminated against in an employment situation, contact a qualified employment attorney today. You may have a case against the employer, depending on what type of discrimination is involved.