Workplace Prof Blog

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.

PS

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.

PS