Employment Discrimination

By Leslie C. Griffin, Larry & Joanne Doherty Chair in Legal Ethics, University of Houston Law Center

The EEOC and Cheryl Perich lost 9-0 in the Supreme Court when the Court dismissed schoolteacher Perich’s Americans with Disabilities Act [ADA] lawsuit against Hosanna-Tabor Evangelical Lutheran Church and School. The Court for the first time approved the ministerial exception, a rule that the state and lower federal courts had used for forty years to dismiss lawsuits by “ministers” against their religious employers, including churches, elementary and secondary schools, universities and hospitals.

One of the arguments in the amicus brief I filed on Perich’s behalf concerned the Court’s leading free exercise precedent, Employment Division v. Smith. In Smith, the Court held that two Native American drug counselors who used peyote in a religious ritual could be denied unemployment compensation benefits because the criminal laws prohibit drug use. The most famous language from Smith is that all citizens are subject to “neutral laws of general applicability” because to permit exceptions from the criminal law “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”

Many supporters of religious freedom detested Smith for its incursion on free exercise. In other words, they believed that religious freedom should trump the law. In contrast, I agreed with Smith’s holding that religious belief should not be superior to the law of the land. I defended Smith because I think our constitutional system depends on a shared system of law. To exempt religious citizens from the laws undermines the rule of law. For the ministerial exception, I argued that, just as Alfred Smith had to obey neutral drug laws of general applicability, so too did Hosanna-Tabor Evangelical Lutheran Church and School and other religious employers have to obey the antidiscrimination laws.

Chief Justice John Roberts’ opinion for a unanimous Court squarely rejected that argument. Although the Chief Justice conceded that the ADA is a neutral law of general applicability, which presumably could be applied to Hosanna-Tabor under Smith, he quickly distinguished Hosanna-Tabor from Smith:

a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

This is a strange argument in the context of the ministerial exception. In terms of religious freedom, the ingestion of peyote is a profound religious ritual with a long American history predating the Constitution. In sharp contrast, the ministerial exception involves cases where employees allege disabilities discrimination, retaliation, pregnancy discrimination, sexual harassment, hostile work environment, unequal pay, race discrimination, gender discrimination, and other civil rights violations. Women clergy, for example, sue for pregnancy discrimination, sexual harassment, hostile work environment and unequal pay. Other ministers sue for disabilities discrimination. Many of these “ministers” have been schoolteachers or non-ordained personnel who did not realize they were “ministers” until their lawsuits were dismissed.

Following a Senate Judiciary Committee hearing last week assessing the impact of recent Supreme Court decisions on corporate accountability, ACSblog spoke with Betty Dukes, the lead plaintiff in one of the most notable cases this term in which the court sided with corporations, Wal-Mart v. Dukes.

Dukes lamented that the Supreme Court’s decision in Wal-Mart was a vote against the rights of her and her fellow plaintiffs “to have our voices heard.”

“I feel that my rights have been violated,” she said, alluding to the claims of egregious gender discrimination in the case, “and I want to address [that] openly and honestly in a court of law.”  

During the Senate Judiciary Committee hearing, Dukes expressed concern that women would be deterred from going forward with their employment discrimination claims against Wal-Mart, now that the court had blocked their ability to sue together as a class and halted a case that started ten years ago.

"It is not easy to take on your own employer,” she said. “It is even more difficult when that employer is the biggest company in the world. In this country, there are many Betty Dukes who want their voices to be heard when they are denied equal pay and equal promotion. For many of these women, I am afraid that the court’s ruling will leave them without having their due day in court."

Watch ACSblog’s video interview below, and watch the hearing here.