Paula J. Caplan Ph.D.

Science Isn't Golden

Supreme Court Forbids Crucial Protection for Church Employees

Employees of Religious Entities Forbidden to Protest Employment Discrimination

Posted Jan 15, 2012

People Employed By Religious Entities Forbidden to Protest Employment Discrimination

In a troubling and unanimous decision, the United States Supreme Court last Wednesday handed down a ruling that will prevent employees of religious organizations from suing their employers for employment discrimination. The United States Equal Employment Opportunity Commission had sued Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., on behalf of employee Cheryl Perich when she was fired after complaining of discrimination under the Americans with Disabilities Act.

Attorneys who deal with employment discrimination have long struggled with many barriers they encounter to proving discrimination. For instance, now that hate speech is a crime, whereas manifestations of bias often used to be blatant, these days only the most careless and crude of employers will tell employees that they are fired because of their race, color, sex, national origin, religion, age, disability, or genetic information. (These categories are those protected by federal law through the Equal Employment Opportunity Commission, and there are executive orders dealing with sexual orientation and parental status, which have different routes for discrimination complaints.) Furthermore, few employers are foolish enough to say outright that they are firing people because their physical, cognitive, or emotional disability is just too much trouble for that workplace. Instead, they claim that the employees in question had personality problems, were difficult to work with, or other things not covered by employment discrimination laws. Employers often give similar reasons for retaliation against employees who ask for better working conditions, report harassment or assault by bosses or co-workers, or blow the whistle on unethical or illegal workplace practices.

Perich had been diagnosed with narcolepsy, took some disability leave, then told the principal of the church school where she was employed that she was ready to return to work. The principal said that the school had already hired someone to replace her for the rest of the school year and, according to the Court's decision, "expressed concern that Perich was not yet ready to return to the classroom. The congregation subsequently offered to pay a portion of Perich's health insurance premiums in exchange for her resignation as a called teacher." A "called teacher" is "regarded as having been called to their vocation by God. To be eligible to be considered 'called,' a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title, 'Minister of Religion, Commissioned.'" Perich refused to resign. In February, the time when she had said she would return to work, she went to the school and "refused to leave until she received written documentation that she had reported to work. The principal later called Perich and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights. In a subsequent letter the chairman of the school board advised Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich's 'insubordination and disruptive behavior,' as well as the damage she had done to her 'working relationship' with the school by 'threatening to take legal action.' The congregation voted to rescind Perich's call, and Hosanna-Tabor sent her a letter of termination."

The principle of separation between church and state is essential and must be upheld, but this is not a case of upholding that separation. Cheryl Perich had not complained because of any religious doctrine or practice, nor was she trying to change either. How ironic that the people with the most power in a church would have discriminated against a woman because of her disability. Aren't religions supposedly about kindness to others?

Chief Justice John Roberts said in the new decision that to allow church employees to file suit because of workplace discrimination could end up forcing churches to retain religious leaders they do not want. What absurd logic! That is based on the assumption that it would be extremely difficult to protect the actual religious practices and organization of a church while allowing lawsuits about discrimination unrelated to the religious practices and organization to go forward. It should not take a Chief Justice to know (1)that it is often easy to distinguish between the two kinds of cases and (2)a major function of this court and other courts of appeals is to make it clear that such distinctions matter, that the former would be an infringement of the church-state separation doctrine, while the latter would not.

©2012 by Paula J. Caplan All rights reserved

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