In Short v. Battle Ground School District, Division II of the Washington Court of Appeals held last week that Washington’s Law Against Discrimination, which makes it unlawful for employers to discharge employees because of creed, does not require employers to accommodate employees’ religious beliefs.
Julie Short, a devout Christian, was employed as an assistant to the superintendent of the Battle Ground School District. Ms. Short alleged that the superintendent demanded that she to lie to a colleague about the existence of a meeting, even after she informed the superintendent that lying was contrary to her religious beliefs. After quitting her job, Ms. Short filed a lawsuit. One of the claims she brought was for failure to accommodate her religious beliefs. The trial court dismissed Ms. Short’s claim on summary judgment.
The Court of Appeals affirmed. It acknowledged that such a claim exists under federal law, as Title VII expressly imposes an affirmative duty on employers to accommodate their employees’ religious beliefs and practices. Washington’s Law Against Discrimination, however, pre-dates Title VII and does not contain similar language. The Court of Appeals declined to read a duty to accommodate religious beliefs into the statute without any indication from the legislature or the Washington Human Rights Commission that such a duty was intended.
While the Short case is a victory for employers, the question of whether Washington’s Law Against Discrimination requires employers to accommodate their employees’ religious beliefs will not be resolved definitively unless and until the Washington Supreme Court takes up the issue. It declined to do so in Hiatt v. Walker Chevrolet Co., a case decided almost 20 years ago, and has not readdressed the issue since. In Hiatt, the Court recognized that Washington’s Law Against Discrimination did not expressly provide for a failure-to-accommodate claim but noted that it might implicitly require such accommodation. The Court declined to address the issue without more briefing, stating that it was an “important and complex question” that could have “constitutional implications.”
It is also well-settled that Title VII requires employers with 15 or more employees to reasonably accommodate their employees’ religious beliefs and practices, unless to do so would create an undue hardship upon the employer.
As almost everyone knows, last week President Obama presented a $447 billion jobs bill, called the American Jobs Act, to a joint session of Congress full of proposals designed to stimulate the lagging U.S. economy. What many people probably don't know is that, tucked into the bill, is a provision that would make it unlawful for employers to refuse to hire someone because that person is unemployed. This small part of the stimulus bill would create an entirely new protected class under federal discrimination law—the unemployed person. If enacted it could expose employers to a raft of new employment discrimination lawsuits.
What The Bill Says
Section 375 of the proposed bill actually has several anti-discrimination provisions. First, it prohibits employers and employment agencies from refusing to hire an individual “because of the individual’s status as unemployed,” including prohibiting employers from directing employment agencies to do so. It also contains a broad anti-retaliation provision prohibiting employers from interfering or refusing to hire someone because the person reports a violation of the Act. The Act will provide many of the same remedies available under Title VII of the Civil Rights Act—the same federal law that prohibits discrimination based on race, religion, or sex—including the right to file a charge with the Equal Employment Opportunity Commission (“EEOC”), or file a lawsuit to recover money damages and attorney fees.
The bill would also prohibit employers and employment agencies from expressly advertising in written job posts that unemployed persons are automatically disqualified from applying.
The Rub: Full Employment...For Employment Lawyers
While the bill expressly states that it is not intended to preclude employers from considering an individual’s employment history or even from “examining the reasons underlying an individual’s status as unemployed,” that subtle distinction will be a small comfort to employers. Employers routinely scrutinize employment history, and employment “gaps” on a resume have always been a red flag to hiring managers. Under this new law, however, employers would need to walk a very fine line between scrutinizing only the “reasons underlying” unemployment, while avoiding letting the fact the person is unemployed to begin with affect a hiring decision.
Those types of mental gymnastics are not only difficult for hiring managers to keep straight while reviewing job applicants, the distinction will be even harder to prove in court if the employer is later sued. As a practical matter, any unemployed person rejected from a job could demonstrate a prima facie claim for discrimination simply by showing he or she was unemployed and then didn’t get the job. Further, the cases will invariably turn on "yes you did, no I didn't" factual disputes about the hiring decision: did the employer make the decision because of reasons underlying the person's unemployment (lawful) or simply because the person was unemployed (unlawful)? Because of those subtle factual nuances, and procedural rules that presume the truth of a plaintiff's allegations until trial, it could be virtually impossible to get even baseless claims dismissed before trial, such as at summary judgment. That makes defending those cases much more difficult and expensive.
While much remains unsettled about the state of the U.S. economy, including whether Congress will even pass the American Jobs Act, one thing is very certain. If the current anti-discrimination provision in the American Jobs Act passes, employers will be seeing a lot more discrimination claims from a whole new protected class of protected people--the unhired unemployed.
The U.S. Supreme Court issued an important decision yesterday, clarifying that employees who report discrimination in response to an employer's internal investigation are protected by the anti-retaliation provisions of Title VII. Click here to download the case: Crawford v. Metropolitan Government of Nashville.
In Crawford, the plaintiff was interviewed as part of her employer's investigation into another employee's complaint of sexual harassment. In response, Crawford reported harassment that she experienced. Soon thereafter, Crawford's employment was terminated; the employer claimed the plaintiff embezzled funds, but Crawford filed a lawsuit alleging the termination was in retaliation for her participation in the investigation. The district court dismissed Crawford's lawsuit on the grounds that, while Title VII makes it unlawful to retaliate against an employee because she "opposed" sexual harassment, Crawford did not "oppose" anything; she merely answered questions in response to an internal investigation.
The Supreme Court reversed (9-0!), holding that "oppose" should be read broadly. As Justice Souter wrote:
"'Oppose' goes beyond 'active, consistent' behavior in ordinary discourse, where we would naturally use the word to speak of someone who has taken no action at all to advance a position beyond disclosing it. Countless people were known to “oppose” slavery before Emancipation, or are said to “oppose” capital punishment today, without writing public letters, taking to the streets, or resisting the government. And we would call it 'opposition' if an employee took a stand against an employer’s discriminatory practices not by 'instigating' action, but by standing pat, say, by refusing to follow a supervisor’s order to fire a junior worker for discriminatory reasons."
What does this mean for employers? For starters, the number of employees protected by Title VII's anti-retaliation provisions has significantly increased. When making employment decisions -- terminations, layoffs, discipline -- employers should include passive participants in discrimination investigations in their list of "high risk" employees. And, even though Crawford considered only Title VII, we expect courts will apply its ruling to the similar anti-retaliation provisions in other statutes as well, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act, and others.