Washington Supreme Court Holds That the WLAD Exemption for Non-Profit Religious Organizations is Unconstitutional as Applied to Certain Employees

The Washington Supreme Court has significantly limited non-profit religious organizations’ immunity from employment discrimination claims brought under the Washington Law Against Discrimination (“WLAD”), RCW 49.60. In Ockletree v. Franciscan Health System, the majority held that the exemption of non-profit religious organizations from the definition of “employer” in the WLAD is unconstitutional as applied in circumstances outside the scope of the organizations’ religious purposes.

Larry Ockletree worked as a security guard for a non-profit religious organization, FHS. Following the termination of his employment, Ockletree raised claims of race and disability discrimination against his former employer. FHS moved to dismiss Ockletree’s WLAD claims, arguing that it is exempt from the WLAD’s definition of an “employer,” which expressly excludes “any religious or sectarian organization not organized for private profit.” RCW 49.60.040(11).

The United States District Court certified two questions to the Washington Supreme Court: (1) whether the WLAD’s exemption for non-profit religious organizations violates the privileges and immunities clause or the establishment clause of the Washington Constitution; and (2) if not, whether the exemption is unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons unrelated to a religious purpose, practice or activity.

Court Lead Opinion Upholds Religious Exemption Under WLAD

In the lead opinion, four justices found that the WLAD exemption does not violate the Washington Constitution. The lead opinion first held that the exemption does not violate the privileges and immunities clause, because the exemption does not confer a benefit to religious non-profit organizations at the expense of other organizations and because a right of action for discrimination in private employment is not a fundamental right rising to the level of a “privilege.” Further, the lead opinion held that even if a privilege or immunity were at issue, there is a reasonable ground for distinguishing between religious non-profits and other non-profits: the religious non-profits’ constitutional right to free exercise of religion. The lead opinion also rejected the argument that the WLAD exemption violates the establishment clause, holding that the exemption does not confer a direct financial benefit to religious non-profits.

While the lead opinion did not expressly address the question of whether the WLAD exemption is unconstitutional as applied to an employee claiming discrimination for reasons unrelated to a religious purpose, the opinion cited with approval to a U.S. Supreme Court case holding that “it is a significant burden on a religious organization to require it . . . to predict which of its activities a secular court will consider religious.” Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336 (1987).

A four-justice dissent swung the opposite direction from the lead opinion on the issue of the WLAD exemption’s constitutionality under the privileges and immunities clause. Arguing that the right to bring an employment discrimination suit is a privilege protected by the Constitution, the dissenting opinion asserted that the WLAD exemption thus bestows a privilege or immunity on religious non-profits. The dissent further argued that there are no reasonable grounds for distinguishing between religious and secular non-profits with respect to discrimination claims unrelated to religion. Thus, the dissent asserted that the WLAD exemption is facially unconstitutional as applied to Ockletree’s race and disability discrimination claims.

But Majority of Court Also Finds WLAD Religious Exemption Unconstitutional As Applied To Employee Whose Job Does Not Relate To Employer's Religious Practices

With an even split between the lead opinion and the dissent, the opinion of Justice Wiggins was the critical component of the Court’s decision. Justice Wiggins agreed with the lead opinion’s holding that the WLAD exemption is not facially unconstitutional. Significantly, however, he re-characterized the second question certified to the Court, holding that “the exemption is reasonable only to the extent that it relates to employees whose job responsibilities relate to the organization’s religious practices.” Justice Wiggins therefore agreed with the dissent’s conclusion that the exemption is unconstitutional as applied to Ockletree.

The majority of the Court, as articulated in the dissent and Justice Wiggins’ opinion, have held that the WLAD religious exemption is unconstitutional as applied to employees in Ockletree’s circumstances: employees whose job responsibilities do not relate to the employer’s religious practices and whose discrimination claims are unrelated to the employer’s religious purpose. Given the split decision of the Court, it less clear whether the exemption would be deemed unconstitutional as applied to an employee with only one of the above factors (for example: (1) an employee whose job responsibilities relate to the employer’s religious practices, but who brings a claim unrelated to religion; or (2) an employee whose job responsibilities do not relate to the employer’s religious practices, but who brings a claim of discrimination based on religion). One thing is clear. Religious non-profits can no longer depend on immunity from discrimination claims under the WLAD when it comes to many of their employees.

Note:  This post also appeared in Stoel Rives' excellent appellate law blog, the Notice of Appeal.

As the Election Nears, Employers Should be Cautious of Politics in the Workplace

From the Presidential debates to lawn signs, and TV ads to the Voters’ Pamphlet in your mailbox, there’s no denying that election season is in full swing. For employers, the home stretch to November 6 means not only around-the-clock coverage, but the potential for spirited debates—and resulting employee discord—in the workplace. Although with limited exception political activity or affiliation is not a protected status, and Oregon employers no longer have to worry about giving employees time off to vote due to mail-in ballots, the impending election still has significant potential to invoke myriad workplace issues ranging from discrimination and harassment to free speech and bullying. Here are some “dos and don’ts” to help guide employers over the next several weeks and keep polarizing political discourse from disrupting your workplace:

* Do set the tone. If you haven’t already, employers should clearly communicate their expectations to employees and foster a culture of mutual respect and understanding. Diversity—even with respect to politics—can be embraced as a positive. Employers lead the way by conveying their acceptance of varying ideologies, and encouraging employees to handle differences of opinion civilly and without letting it affect normal operations. Political conversations between employees often lead to discussion of sensitive (and protected) issues such as race, religion, immigration, and women’s rights. However, election season should not provide a license for employees to harass or bully one another by attacking contrasting political views, bragging about which ballot measures did or did not pass, or gloating over a candidate’s defeat. Employers can minimize risk by reminding employees that their policies prohibiting harassment, discrimination and retaliation apply to all political discussions, and investigating any complaints promptly. Moreover, some employers have in fact included political activity in their EEO or anti-harassment policies, so it may be prudent to dust off and review your handbook, because employees certainly will know what you have promised. Similarly, given that unions are frequently politically active, some union contracts prohibit politics-based discrimination.  

* Don’t allow bad behavior in the name of “free speech.” Contrary to popular belief, there is no blanket right of “free speech” in a private workplace. The First Amendment covers only state action, and private sector employers are therefore free to limit political discussions in the workplace. Be careful, however, that any such limitations don’t run afoul of laws such as the National Labor Relations Act (NLRA) (see next "do," below) or federal and state anti-discrimination laws.

Read on for more election "dos and don'ts" below!

 

* Do be mindful of the NLRA. The NLRA offers some protections for employees’ political speech, both on and off the job, and even if you do not have a union-based workforce. As the National Labor Relations Board (NLRB) states on its website, employees have the right to work together to “improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.” (See https://www.nlrb.gov/concerted-activity). Employers should be particularly cautious to ensure that any restrictions on employee communications, political or otherwise, don’t impede on employees’ ability to act in concert with respect to work-related matters such that they would run afoul of Section 7 protections.

* Don’t forget about social media. Undoubtedly, social media has played a significant role in 2012—and it’s likely becoming an increasing presence in your employees’ day-to-day lives, too. Employers should remind employees of any policies regulating internet usage in the workplace, along with any policies specifically governing social media. Although such policies should encourage employees to be respectful, they should not be so broad-sweeping as to prohibit political discussions over social media, as this again has the risk of crossing over into Section 7 protections referenced above. The NLRB has stated that employers should not “caution employees against online discussions that could become heated or controversial.”

* Do be cautious of Company political endorsements. It’s common for employers to provide general election information to employees, such as informing them when ballots are mailed or simply encouraging them to vote. In recent years, however, many employers have taken it further and perhaps garnered unintended press for making political statements—most often during election season. Although there is no per se law prohibiting a private company from voicing its own political views to employees, employers who do so should also make clear that employees retain the sole right to vote as they choose. Employers should also be mindful of the resulting pitfalls. For example, would a gay or lesbian employee be more likely to bring a sexual orientation discrimination claim against an employer that had voiced its opposition to same-sex marriage? There’s no way to know, but most employers probably wouldn’t want to be the test case.    

* Don’t enforce policies on a selective basis. Many employers maintain no-solicitation or no-distribution policies, which generally prohibit employees from requesting support for or distributing materials about non-work events or causes. To be effective, however, these policies must be both strictly and evenly enforced. Don’t let a Democrat post political flyers, but not a Republican. And don’t let the CEO hand out buttons supporting the candidate of his or her choice, but prohibit employees from doing the same thing.

Do know if local or state law protects provides greater protections. As mentioned above, political activity is not a protected status for most employees working for private employers under federal law, and only a handful of states have promulgated laws making it unlawful for employers to discriminate or retaliate based on an employee’s political activity or affiliation. Oregon in Washington have not, but California is one of the few states that has. Some protections are derived on a more local level, such as the City of Seattle, which prohibits discrimination based on political ideology, affiliation or similar terms. Public employers need to be ever mindful of the circumstances when political speech crosses the threshold into free speech, thus precluding adverse action on that basis.

* Don’t hesitate to reach out if things get sticky. Election-related employment issues can be complex and difficult to navigate. If you run into problems in the pre- or post-election flurry, contact your employment attorney.  Although it may seem that all anyone cares about these days is the election, you’ve still got a business to run—and help is available.

Happy voting!

Oregon Employers: Download SB 519 (Mandatory Meeting Ban) Notice Here!

Back in June, we reported on Oregon SB 519 - the law taking effect January 1, 2010 that will prohibit Oregon employers from disciplining any employee who refuses to participate in communications concerning the employer’s opinions on religious or political matters - including labor unions. 

SB 519 also requires ALL Oregon employers to post a notice informing employees of their rights under the new law.  We usually rely on the Oregon Bureau of Labor and Industries (BOLI) to supply us with all mandatory postings, but BOLI has chosen not to publish an SB 519 posting. 

We at the Stoel Rives World of Employment and Stoel Rives couldn't just leave you in the lurch - we have created our own SB 519 Poster - just click the link to download, free of charge.  It's a .pdf document, and we've included two per page, just in case you want multiple copies.  We would recommend that you post the notice wherever you typically put up your employment law posters.  If you have an extra copies, we think they make excellent stocking stuffers (at least for the HR professional in your family).

DISCLAIMER!  (You knew this was coming, right?)  No government official or agency has approved this poster as fulfilling the SB 519 requirements.  This poster represents our best efforts to create a poster that complies with those requirements, but we make no representations, promises or warranties as to whether it fulfills the legal requirements of SB 519.  As always, the materials available at this web site/blog are for informational purposes only and not for the purpose of providing legal advice or soliciting legal business. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site/blog or any of the materials or e-mail links contained within the site do not create an attorney-client relationship between Stoel Rives and the user or browser.