Supreme Judicial Court Applies Ministerial Exception Broadly in Temple Emanuel Decision

Teachers at supplemental religious schools in Massachusetts cannot bring workplace discrimination claims against their employers. The United States Supreme Court in it's Hosanna-Tabor Lutheran Church and School v. EEOC ruling recognized, for the first time, the "ministerial exception" grounded in the First Amendment, stripping the rights conferred by workplace discrimination laws from those the Court determines to be a minister.  Last month the Supreme Judicial Court of Massachusetts held that part time teachers at a religious after school program qualified as ministers, in Temple Emanuel of Newton v. MCAD.  

Teacher Gaye Hilsenrath brought a discrimination complaint against Temple Emanuel's Rabbi Albert I. Gordon Religious School. Ms. Hilsenrath was not a rabbi.  Her claim of discrimination had nothing to do with religious beliefs.  She alleged age discrimination, that she was not rehired to her teaching position because she was too old. The Synagogue did not assert a sincerely held belief that teachers should retire at a certain age.  Instead, they argued that who they hire to teach at their religious school is none of the States business.  The court agreed.

Answering their own question in the affirmative, the Supreme Judicial Court stated "the fundamental question [in deciding if the ministerial exception applies] is whether it would infringe the free exercise of religion or cause excessive entanglement between the State and a religious group if a court were to order a religious group to hire or retain a religious teacher that the religious group did not want to employ, or to order damages for refusing to do so." The opinion gave no indication how far this "ministerial exception"would reach in the future.  But this decision is unlikely to be the last word on the topic.
 

Federal court rules that disability discrimination must be sole factor in claim against federal government

In a case of first impression, the First Circuit Court of Appeals in Palmquist v. Shinseki ruled that a federal employee's complaint of retaliation for complaining about disability discrimination must be the sole factor in an employment action to allow recovery under the Rehabilitation Act. The Rehabilitation Act, 29 U.S.C. sec. 701, et seq., protects federal employees from discrimination in employment based on disability. The employee in Palmquist argued that he should be allowed to recover damages against his employer, the Department of Veteran Affairs, where retaliation for his complaint of discrimination was a motivating factor, but not the only factor, in the denial of his promotion. The federal appeals court disagreed, ruling that the "mixed-motive" standard from Title VII did not apply to the Rehabilitation Act because the Act uses language from the American with Disabilities Act in prohibiting adverse employment actions "because" an employee opposed a practice unlawful under the Act.

Firefighter files civil rights suit after being sued for discrimination

An Attleboro firefighter filed a 33-page federal complaint this month alleging a conspiracy by his co-workers to falsely accuse him of discrimination. The firefighter, Dennis Perkins, had been the subject of a complaint at the Massachusetts Commission Against Discrimination brought by a black firefighter, Vincent Bailey, alleging racial discrimination. That complaint settled last year when the City of Attleboro paid Bailey $25,000 after the MCAD issued a finding of probable cause on Bailey's complaint of discrimination. The new federal complaint by Perkins names several members of the Fire Department as defendants, including former Chief Ronald Churchill, and alleges that these defendants conspired together to retaliate against and defame Perkins because he refused to support Churchill's bid to continue on as Fire Chief past his statutory retirement date. 

Attorney General's Office settles housing discrimination cases in Wareham

Two landlords in Wareham recently settled claims of housing discrimination with the Attorney General's Office after they published advertisements for apartments that discouraged families with young children from applying, according to Wareham Week, an online news publication. The landlords allegedly instructed families with young children not to apply for the units because of the presence of lead paint. The landlords were reportedly required to delead their apartments, pay a $3,000 penalty to the state, and attend "fair housing" training.

Massachusetts has extraordinarily strict houding discrimination laws. The law goes beyond refusal to rent or sell. A property owner may not discourage a person from applying to rent or buy property based on such person's race, religion, gender, and certain other statuses, including family status. This means that a property owner cannot advertise an available property in a way that discourages people with children from applying or inquiring about the unit. Since many units in the state have lead paint, and a property owner is not permitted to knowingly rent or sell a property with lead paint to tenants with children under six, this means that property owners often try to discourage families with children under six from applying for units with lead paint.

Is being overweight a disability?

The Montana Supreme Court says maybe. in a 4-3 decision, the state's highest court said that obesity without a physiological cause may constitute a physical impairment under state discrimination law. The decision is significant outside of Montana because the high court issued the opinion in response to a question reported by a federal court concerning whether obesity may, by itself, qualify as a disability under the American With Disabilities Act.

The significance of the decision is that obesity has previously been considered a disability only when caused by a physiological disorder or condition. The decision may cause people who are overweight without any underlying disorder or condition to claim they are disabled if they are denied employment opportunities due to being overweight.

Transgender discrimination bill takes effect

On Sunday, Massachusetts became the 16th state in the country to make discrimination on the basis of transgender status illegal in employment, housing, education and lending. The bill was signed into law last January by Governor Deval Patrick, but did not take effect until the new fiscal year which began July 1.

Is hiring "perky" women to increase business illegal?

A local coffee shop is reportedly under investigation by the federal Equal Employment Opportunity Commission for restricting its hiring to young, attractive women. The EEOC has acknowledged that it is investigating Marylou's Coffee, a chain of coffee shops on the South Shore. The coffee shop denies that it discriminates in hiring, but it does not appear to be disputed that the chain employs primarily young, pretty women. The chain's loyal customers and the Boston Herald have jumped to the defense of Marylou's, arguing that private companies should be allowed to hire whomever it wants if it helps increase business. For instance, here's what Herald columnist Michael Graham has to say:


"If you own a business, you hire people who you think will help you make the most money, period. And at Marylou’s, the business model appears to be that, if given the choice of buying coffee from a chubby, grumpy middle-aged guy vs. a cute, bubbly 20-something girl, more people will choose the latter."

The problem with Graham's argument becomes clear when you replace "cute, bubbly 20-something girl" with "white man." It is never legal for a business to discriminate because of the preference of its clientele. If that were allowed, then Jim Crow laws might still be remaining today. I'm sure many business owners in the old South, for instance, might have been fine employing black people if doing so would not have driven off business.

That being said, unattractiveness is not a protected class. If Marylou's only discriminates against people based on looks, that might not violate the law. But as attorney David Belfort told the Herald, "If you're serving coffee, I would think men could serve coffee adequately."