Category Archives: Race Discrimination

Worshiping both God and the Almighty Dollar

Last month we told you about corporations being able to sue if they were victims of race discrimination.  This month, we learned of a case out of Michigan holding that corporations can claim “sincere religious beliefs” that justify discriminating against transgender employees.

In EEOC v. R.G. & G.R. Harris Funeral Home, a federal judge ruled that the Religious Freedom Restoration Act (RFRA) empowers a for-profit corporation to terminate an employee for transitioning from a man into a woman. According to the court, the employer demonstrated that its religious belief that gender is “an immutable God-given gift” would be “substantially burden[ed],” if the funeral home were required to employ a transgender worker. The district court’s ruling extended the reasoning of the U.S. Supreme Court’s decision, Burwell v. Hobby Lobby Stores, Inc. (2014), holding that a privately held corporation can be a protected “person” under RFRA.

The Michigan decision is unprecedented and raises difficult questions as to whose civil rights are more important — those of the employee protected from discrimination based on sexual stereotypes, or those of the employer, claiming religious beliefs.  What if a corporation claims a “sincerely held religious belief” that disfavors disabled persons, older workers, or racial minorities?  Would the court then allow discrimination against employees in those categories?

We shall see. In any event, privately held companies with religiously active owners can be expected to assert more RFRA rights and religious defenses in the future.  For a related discussion of state religious freedom laws at work, please see the attached American Bar Association paper that I co-presented at the Employment Rights and Responsibilities Committee meeting this spring.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

Nice Reference Letter Dooms Employer’s Defense

Put this one in the “no good deed goes unpunished” file.

When the University of California, Merced, had to lay off 11 professors due to a budget deficit, department director Robert Ochsner wrote letters of recommendation on behalf of one of the affected professors, Loren Qualls, trying to help him find a new job.  Ochsner stated in his letter that Qualls was not reappointed due to “budgetary reasons” and that his termination “does not reflect a negative judgment of his overall teaching.” The letter added that Qualls “consistently and professionally fulfilled all his responsibilities for teaching,” and mentioned other positive evaluations.

Yet, when the budget crunch passed, the university chose to rehire other professors, but not Qualls, citing longstanding concerns about his teaching skills, lack of organization, and failure to attend meetings or classes on time.  These issues were well-documented.

In response, Qualls sued for race discrimination in federal court in California.  The court recently refused to dismiss Qualls’s claim, noting the stark discrepancy between the stated reasons for not rehiring him and the positive reference letter.  The letter of recommendation, “which a reasonable juror could find to describe Plaintiff as performing his job competently, is inconsistent with the other evidence that Defendants have submitted that tends to show that Plaintiff performed his job poorly, and thus creates a genuine issue for trial,” the court held. Therefore, if a jury were to believe the reference letter to be true, it could find that the claims of poor performance were false and a pretextual cover-up for race discrimination.

The case presents a reminder to employers that job references – positive or negative – continue to create a risk of liability.  Here are some tips and considerations:

  • Employers should never give a false reference, as alleged in the Qualls
  • Employers can avoid the issue altogether by prohibiting letters of reference, and just providing “neutral” information – dates of employment and position held.
  • With regard to positive references – which can serve the laudable goal of helping a good worker find another job – employers face a much lower risk of any claim, if the reference is true and positive, and such references are the exception and not the norm.
  • With regard to negative references, the traditional rule of prohibiting such references altogether remains the safest and best route to avoid claims, including defamation.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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