Workplace Prof Blog

Clarke on Desire

Jessica Clarke (Minnesota) has just posted on SSRN her article (63 Duke L.J. (2013)) Inferring Desire.  Here's an excerpt from the abstract:

In the course of debates over same-sex marriage, many scholars have proposed new legal definitions of sexual orientation to better account for the role of relationships in constituting identities. But these discussions have overlooked a large body of case law in which courts are already applying this model of sexual orientation, with inequitable results.  * * * This Article examines a set of fifteen years of sexual harassment decisions in which courts have endeavored to determine the sexual orientations of alleged harassers. * * *  Since [1998], federal courts have decided 142 cases on whether a harasser was homosexual or experienced same-sex desire * * *.

Empirical assessment of these cases raises questions about legal determinations of sexual orientation and sexual desire. First, it finds that courts rely on overly simplistic assumptions about sexual orientation that are contradicted by social science research. Surprisingly, in searching for evidence of same-sex desire, courts compare the harasser’s behavior to an idealized vision of romantic courtship that resonates with the picture of same-sex intimacy drawn by advocates of gay marriage. Second, these judicial inquiries into desire reinforce biases in favor of heterosexuality. Courts interpret sexually charged interactions to be devoid of desire where the harasser is involved in a heterosexual marriage, while reading desire into far less suggestive scenarios where the harasser self-identifies as non-heterosexual. And third, the judicial preoccupation with desire distracts from the purpose of sexual harassment law: eliminating invidious sex discrimination.

This study has implications for other legal doctrines that may require definitions of sexual orientation or inferences of desire. It suggests that a relationship model of sexual orientation may not be appropriate in all legal contexts, and calls into question the project of devising any all-purpose legal definition of sexual orientation. It also argues that reformers should be wary of how inquiries into sexual desire may operate as distractions and reinforce conventional notions of sexuality.

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Call for News and Articles

Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:

Dear Colleagues:

We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members.  Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.

First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at angela-onwuachi@uiowa.edu.

Second, please e-mail Angela Onwuachi-Willig at angela-onwuachi@uiowa.edu with any information about  conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.

Third, we want to include a list of  relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters.  Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at angela-onwuachi@uiowa.edu.

Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on.  Please send submissions to Rebecca Lee at rlee@tjsl.edu.

Please send all submissions by November 18, 2012.

MM

Jury Splits on Political Discrimination Case against Iowa

You may have read about Theresa Wagner's lawsuit against the University of Iowa Law School for discrimination against her for her political affiliations. Wagner applied for a position as a tenure-track legal writing professor and was denied. She is currently the assistant director of the writing center, a part time position, not on the tenure track. She also applied for several adjunct positions and was denied. Wagner alleged that the reason was because of her activism in pro-life causes. While the trial court had originally dismissed her claim, the Eight Circuit reinstated it, and it went to trial this month.

Some faculty testified on Wagner's behalf, one of whom has now alleged that he has been retaliated against for doing so. Others testified that the decision was made because of a comment Wagner made at her job talk, suggesting that as a legal writing professor she would not be teaching analysis. The jury came back with a finding for the University on Wagner's First Amendment claim, but deadlocked on her equal protection claim. Wagner has asked for a retrial on both issues. 

This is an interesting case and very much a cause celebre for some conservatives who believe that the vast majority of universities are biased against conservatives. For more on the jury's verdict and the details, see here and here. As an Iowa alum, I'm comforted that a jury found at least partially that the faculty was not motivated by Wagner's politics.Having taught legal research, analysis, and writing, I'm glad that the faculty realized that teaching analysis is part of what legal writing professors do. But finally, having graduated with Wagner, I hope that the University thinks about offering some sort of settlement that would allow everyone to move forward in a constructive way, if that's possible.

MM

Helfand on Hosanna-Tabor & More

Michael Helfand (Pepperdine) has just posted on SSRN his article (forthcoming Minn. L. Rev.) Religion's Footnote Four: Church Autonomy as Arbitration.  I've just skimmed the article and find it fascinating -- I can't wait to read it more carefully.  Here's the abstract:

While the Supreme Court’s decision in Hosanna-Tabor v. EEOC has been hailed as an unequivocal victory for religious liberty, the Court’s holding in footnote four – that the ministerial exception is an affirmative defense and not a jurisdictional bar – undermines decades of conventional thinking about the relationship between church and state. For some time, a wide range of scholars had conceptualized the relationship between religious institutions and civil courts as “jurisdictional” – that is, scholars converged on the view that the religion clauses deprived courts of subject-matter jurisdiction over religious claims. In turn, courts could not adjudicate religious disputes even at the request of the parties. In stark contrast, footnote four rejected this jurisdictional approach to the religion clauses; according to the Court’s logic, the ministerial exception – like other affirmative defenses – could be waived by the parties; and with such waiver, courts could adjudicate religious claims that had previously been deemed beyond the authority of the judicial system.

Far more than a procedural nicety, footnote four signaled a radical rejection of the prevailing paradigm. However, the Court’s decision failed to explicitly provide a new vision of the relationship between church and state. To replace the discarded jurisdictional approach, this Article contends that the kernels of such a vision can be found in the Supreme Court’s early church property cases, which understood the autonomy of religious institutions as a constitutionalized version of arbitration. Thus, the authority of religious institutions – like the authority of arbitrators – was derived from the implied consent of its members and the decisions of religious institutions were subject to judicial review for misconduct. While the Supreme Court’s later church property cases rejected this approach, returning to these core principles – consent and judicial review – provides the doctrinal foundations for the Court’s new framework for the relationship between church and state. And, applying this new framework can help resolve some of the pressing litigation questions left unresolved by the Supreme Court’s decision in Hosanna-Tabor.

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Corbin on Faith-Based Discrimination

Caroline Mala Corbin (Miami) has just posted on SSRN her essay Expanding the Bob Jones Compromise.  The essay will appear in Austin Sarat, ed., Matters of Faith: Religoius Experiences and Legal Responses in the United States  (forthcoming Cambridge U. Press).  Here's the abstract:

Sometimes the right to liberty and the right to equality point in the same direction. Sometimes the two rights conflict. Which constitutional value should prevail when the right to religious liberty clashes with the right to be free from discrimination on the basis of race and sex? More particularly, should faith-based organizations, in the name of religious liberty, be immune from anti-discrimination law?

Bob Jones University v. United States suggests a compromise: permit faith-based organizations to discriminate on the basis of race or sex if that discrimination is religiously required, but at the same time refuse to condone or support that discrimination by denying those religious organizations any financial aid. In fact, it is already federal policy to withhold government subsidies from religious organizations that discriminate on the basis of race, and the Bob Jones Court rejected a free exercise challenge to that policy. The same policy should apply with regard to discrimination on the basis of sex. Allowing religious groups to discriminate on the basis of sex but declining to provide grants, vouchers, or tax exempt status to those that do discriminate honors both our commitment to religious liberty and our commitment to equality.

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Wasserman on Hosanna-Tabor and Jurisdiction

And in keeping with the federal courts/Supreme Court theme, Howard Wasserman (Florida International) has a really interesting essay on the Supreme Court's holding in Hosanna-Tabor Lutheran School v. EEOC that the ministerial exception is not jurisdictional in PENNumbra: Prescriptive Jurisdiction, Adjudicative Jurisdiction, and the Ministerial Exception. From the introduction:

Hosanna-Tabor correctly characterized the ministerial exemption as a limitation on the merits of the employment discrimination claim.  I repeatedly argued for this position before the Court entered the mix, including in this Essay, which was written and accepted for publication in October 2011 (before the Court discovered unanimity and thus was able to decide the case fairly quickly).  But the Court’s jurisdictionality footnote was entirely conclusory, failing to explain why the issue controls whether the plaintiff’s allegations entitle him to relief rather than whether the court has power to hear the case.

It thus remains to unpack why the exemption is, in fact, a merits doctrine.  First, doing so demonstrates the correctness of the conclusion in  Hosanna-Tabor, putting to rest any normative dispute on the issue.  Second, mischaracterization of the ministerial exemption resulted from the same category errors that plague characterization of other legal issues; this issue illustrates nicely the routine conflation of jurisdiction and merits and courts’ failure to maintain clean lines between doctrines and underlying concepts. While the Court’s conclu-sion that the exemption is merits-based might be enough to signal lower courts on future jurisdictionality issues, actual analysis and explanation may better enable them to understand and recognize the limits of what goes to jurisdiction and, inversely, the breadth of what goes to substantive merits.

This Essay, I hope, provides that analysis.

I haven't had a chance yet to read the whole thing carefully, but what I've seen so far is a great discussion of an issue vexing to courts, litigants, and scholars alike.

MM

Zelinsky on the Individual Mandate, the Parsonage Allowance, and the Religious Exemptions for FICA and Social Security

That's a mouthful of a headline.  Anyway, Ed Zelinsky (Cardozo) has just posted on SSRN his article Do Religious Tax Exemptions Entangle in Violation of the Establishment Clause? The Constitutionality of the Parsonage Allowance Exclusion and the Religious Exemptions of the Individual Health Care Mandate and the Fica and Self-Employment Taxes.  Here's the abstract:

In Freedom From Religion Foundation v. Geithner, the Freedom From Religion Foundation (FFRF) argues that Code Section 107 and the income tax exclusion that section grants to “minister[s] of the gospel” for parsonage allowances violate the Establishment Clause of the First Amendment. This case has important implications for a new federal law mandating that individuals maintain “minimum essential” health care coverage for themselves and their dependents. That mandate contains two religious exemptions. One of these exemptions incorporates a pre-existing religious exemption from the federal self-employment tax. These sectarian exemptions raise the same First Amendment issues as does the Code’s exclusion from gross income of clerical housing allowances.

I ultimately find unpersuasive the indictment of Section 107 as constitutionally entangling. For the same reasons, I also conclude that the religious exemptions of the Social Security taxes and of the individual health mandate pass First Amendment muster. In the modern world, extensive contact between tax systems and religious institutions is unavoidable. Whether religious entities and actors are taxed or exempted, there are inevitable tensions between the contemporary state and sectarian institutions and their personnel. Whether religious entities and actors are taxed or exempted, there are no disentangling alternatives, just imperfect trade-offs between different forms of entanglement.

Thus, Section 107 and the exclusion from gross income it grants to clerical recipients of housing and parsonage allowances are constitutionally permitted, though not constitutionally required, responses to the problems of entanglement inherent in the relationship between modern government and religion. Similarly, the Code’s sectarian exemptions from the individual health care mandate and from the FICA and self-employment taxes are acceptable, though not obligatory, means under the First Amendment of managing the inevitable contacts and tensions between the contemporary state and the religious community.

However, as a matter of tax policy, the exclusion of Section 107(2) for cash parsonage allowances stands on weaker ground than does the exclusion of Section 107(1) for in-kind housing provided to “minister[s] of the gospel.” The taxation of such cash allowances, in contrast to the taxation of housing provided in-kind, does not involve problems of valuation or of taxpayer liquidity and is thus more practicable as a matter of tax policy.

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Loyola Debate on the Ministerial Exception and Hosanna-Tabor

On Monday, February 13, Rick Garnett (Notre Dame) and our own Paul Secunda will debate the recent Hosanna-Tabor decision and the ministerial exception at Loyola University Chicago Law School as part of its Law and Religion program. The debate will take place at noon at the law school. Click the program page for more information or to find out how to attend.

Rick and Paul are both fantastic scholars and speakers and come at this issue, not surprisingly, from quite different perspectives, both thoughtful. This will be a great event.

MM

Washington Post-Kaiser Family Foundation poll on race, sex, attitudes and feelings of well-being

The Washington Post and Kaiser Family Foundation have released the results of a recent survey on feelings of well being and attitudes by race and sex on such wide ranging topics on how secure people feel, what they are worried about, and whether they think race or sex discrimination continues to be a problem. The poll has longitudinal data from 5 years ago, and also goes back farther on at least one of the questions. I use these kinds of surveys to help animate class discussions, especially  to talk about why people might choose to litigate or what people might be prepared to believe. It helps ground that discussion in something more than my gut feeling about what people value, which tends, not surprisingly, to be skewed to what I value.

MM

4th Cir: Garcetti Does Not Apply in Higher Education Setting

Fascinating case just out from the Fourth Circuit Court of Appeals yesterday on a crucial question at the intersection of public employment law and higher education law: Does Garcetti v. Ceballos, the case that severely limited public employee free speech rights when employees speak pursuant to their official duties, apply to professors in the higher education context.

In Adams v. Trustees of the Univ. of North Carolina-Wilmington,10-1413 (4th Cir. April 6, 2011), the Fourth Circuit held that a university professor could pursue his claims that his employer retaliated and discriminated against him based on his viewpoints, in violation of the First Amendment.  

Adams filed suit after he was denied a promotion to the position of full professor.  As part of his promotion materials, Adams included references to his service to Christian groups, and referred to being “an activist in the campus free speech movement.” Additionally, he listed numerous speeches on “Academic Freedom” as well as conservative issues in his portfolio.  Eventually, he was rejected promotion.

Although it upheld the district court on dismissing a claim of religious discrimination under Title VII, the Fourth Circuit found that the district court had erred when it granted summary judgment to the university on the employee’s First Amendment retaliation claim. The court found that Garcetti applies to the academic context and noted that the Supreme Court expressly left open the question of whether the principles would apply in the academic context.

With Garcetti not an obstacle, the court applied the Pickering-Connick analysis and determined that the employee spoke on a matter of public concern because Adam’s writings, which addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality, qualified.  On remand, the Pickering balance of interests will have to be applied, as well as the Mt. Healthy same decision test.

This one could be heading for the Supreme Court with the interesting twist of a conservative advocacy group arguing for the expansion of First Amendment rights in public academic employment.

Hat tip: Jon Harkavy.

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SCOTUS to Hear Ministerial Exception Case

Almost exactly a year ago, we blogged about a case on the ministerial exception to the ADA from the Sixth Circuit, EEOC v. Hosana-Tabor Evangelical Lutheran Church and School. The Supreme Court granted cert. in the case today on the question:

Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

That question is not exactly framed the way that the Sixth Circuit addressed the issue. It looked at the teacher's primary duties and held that forty-five minutes of religious instruction of every seven hours of work was not enough to make her a ministerial employee.

To see the relevant documents, here's a link to SCOTUSBlog's case page. This will be an important one to watch.

MM

Rehearing Ordered for 9th Circuit Ministerial Exception Case

Today the Ninth Circuit agreed to rehear Rosas v. The Corporation  of the Catholic Archbishop of Seattle. In that case, the panel had held that the First Amendment's ministerial exception barred an action for overtime compensation brought under state law by a seminarian who did maintenance work at a Catholic church in Seattle. The panel held that because the plaintiff assisted with mass, it could not use the usual functional approach to determine whether he was a ministerial employee. By inquiring what the plaintiff's "primary duties" were, the court would entangle itself in the church-minister relationship that the exception seeks to protect. Additionally, the panel held that ministers or ministers-in-training might be ordered as part of their religious obligations to receive no pay for their work, whether the work was cleaning sinks or promoting the religion. Accordingly, the panel adopted a test similar to that used by the Fifth Circuit:

if a person (1) is employed by a religious institution, (2) was chosen for the position based “largely on religious criteria,” and (3) performs some religious duties and responsibilities, that person is a “minister” for purposes of the ministerial exception.

This case presents some of the difficult problems posed by the church/state relationship in the employment context. I'll be surprised if the full court reverses the results unless it is clear that the plaintiff here was clearly mostly a maintenance employee. Perhaps the full court simply wants to clarify the test. In any event, it will be interesting to see.

MM

The Increase of the Workplace Chaplain or Another Reason for Federal Anti-Captive Audience Laws

Thanks to friend of the blog, Suja Thomas (Illinois), for bringing to my attention this article from the Wall Street Journal on the increased use of workplace chaplains:

A growing number of companies are offering the services of chaplains in the workplace. Managers say many employees who wouldn't think of calling a therapist or an employee-assistance program will willingly turn to a chaplain. Executives at Tyson Foods Inc., which employs 120 chaplains serving a work force of 117,000, say they believe the service reduces turnover. Other companies contract with chaplain-placement services to handle workplace disruptions that managers can't.

Following the military-chaplain model, these roving spiritual advisers typically visit offices or factories weekly, greeting employees, hanging out in the break room, handing out business cards and meeting one-on-one with workers. But they're also on-call 24/7, so chaplains rush to hospitals, restaurants or homes on request, providing comfort and support free of charge to employees . . . .

The chaplains say they don't proselytize or push any particular beliefs. Instead, they spend most of their time encouraging and calming people, offering emotional support or providing referrals to social service agencies or employee-assistance programs. If employees want to talk about religion, the chaplains do so, but only if asked . . . . Voluntary expression of one's religious beliefs at work is permissible under law, but employers can't legally pressure employees to take part in prayer or devotional services.

As I have written recently, I am concerned by the increased presence of religion in the private-sector workplace, and not because I am hostile to religion.  Indeed, I am worried about the workplace corrupting religious observance. As I wrote recently in Yale Law Journal Online Essay:

Under Citizens United’s robust conception of corporate political speech, employers may now be able to compel their employees to listen to their political views at such meetings on pain of termination.

To eliminate this danger while remaining consistent with the First Amendment framework for election law post-Citizens United, this Essay urges Congress to consider language similar to that enacted by the Oregon Worker Freedom Act (S.B. 519), which became effective January 1, 2010. S.B. 519 prohibits termination of employees for refusing to attend mandatory political, labor, or religious meetings held by their employers. Enacting a federal law like the Oregon bill, which would protect employees from being terminated, disciplined, or otherwise disadvantaged for choosing not to be subjected to indoctrination meetings, would effectively address this problem and would constitute permissible employment standards legislation . . . . 

In addition to political speeches, more companies are hiring ministers to serve their workers. Evangelical Christian organizations are increasingly offering ministry services for employers to provide to their employees during work hours. Prayer breakfasts, faith-based training and education, and requests for information about employees’ religious affiliations are becoming a larger part of the American workplace. Although voluntary religious participation in the private workplace may not be objectionable, power disparities in the employment relationship suggest that some of this employee religious participation may not be a matter of free choice . . . .

The need for this type of legislative response is based on the longstanding recognition that employers’ speech carries a different weight than that of any other participant in political debates, and that the law must be particularly careful to guard employee-voters against the undue influence of their employers . . . .

Religion in the private workplace on a purely voluntary basis is fine, but there must be safeguards in place which prevent employees from feeling that they have no choice in the matter. Here, I also think of the indirect subtle coercive pressures to conform that the Supreme Court discussed in its decisions in Lee v. Weisman and Santa Fe v. Doe.  My federal legislative fix would provide the necessary and limited balm.

PS

Mala Corbin on Ceremonial Deism and the Reasonable Religious Outsider

Caroline Mala Corbin (Miami) has posted on SSRN her forthcoming article in the UCLA Law Review: Ceremonial Deism and the Reasonable Religious Outside.

Here is the abstract:  

State invocations of God are common in the United States; indeed, the national motto is “In God We Trust.” Yet the Establishment Clause forbids the state from favoring some religions over others. Nonetheless, courts have found the national motto and other examples of what is termed ceremonial deism constitutional on the ground that the practices are longstanding, have de minimis and nonsectarian religious content, and achieve a secular goal. Therefore, they conclude, a reasonable person would not think that the state was endorsing religion.

But would all reasonable people reach this conclusion? This Article examines the “reasonable person” at the heart of the Establishment Clause’s endorsement analysis. The starting point is the feminist critique of early sexual harassment decisions, which often held that a reasonable person would not find that the alleged harassment created a hostile work environment. Feminists argued that the supposedly objective reasonable person was actually a reasonable man, that men and women often have different perspectives on what amounts to sexual harassment due to structural inequalities, and that reliance on this unstated norm perpetuates male privilege rather than remedies it. The Article argues that the same insights apply to the reasonable person used to evaluate ceremonial deism. The supposedly objective reasonable person too often equates to a reasonable Christian. Furthermore, just as men might find harmless comments that women would find offensive, certain invocations of God may seem acceptable to Christians that non-Christians would find alienating because of their status as religious outsiders. Finally, reliance on this norm perpetuates Christian privilege rather than ensures religious liberty and equality for all. Consequently, the constitutionally of ceremonial deism should evaluated from perspective of a reasonable religious outsider.

I must say that I love an article that can work in both sexual harassment theory and the Establishment Clause! But more seriously, and as Caroline explained to me, this article does apply a feminist analysis of the reasonable person in sexual harassment law to the reasonable person used in establishment clause law.   I am a big fan of Caroline's previous work and expect this article will also be a wonderful read.

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