1st amendment bars employment discrimination claims by Catholic school teachers

In a 7-2 decision, the United States Supreme Court has decided that employment discrimination claims brought by two school teachers at Catholic grade schools are barred by the 1st amendment. Our Lady of Gua­dalupe School vs. Morrissey-Berru (US Supreme Ct 07/08/2020 [PDF]. I’m reproducing the syllabus here:

1 (Slip Opinion) OCTOBER TERM, 2019 Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

OUR LADY OF GUADALUPE SCHOOL v. MORRISSEY-­BERRU

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 19–267. Argued May 11, 2020—Decided July 8, 2020*

The First Amendment protects the right of religious institutions “to de­cide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116. Applying this principle, this Court held in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, that the First Amendment barred a court from entertaining an employment discrimination claim brought by an elementary school teacher, Cheryl Perich, against the religious school where she taught. Adopting the so-called “ministerial exception” to laws governing the employment relationship between a religious institution and certain key employees, the Court found relevant Perich’s title as a “Minister of Religion, Commissioned,” her educational training, and her respon­sibility to teach religion and participate with students in religious ac­tivities. Id., at 190–191. In these cases, two elementary school teachers at Roman Catholic schools in the Archdiocese of Los Angeles had teaching responsibilities similar to Perich’s. Agnes Morrissey-Berru taught at Our Lady of Gua­dalupe School (OLG), and Kristen Biel taught at St. James School.Both were employed under nearly identical agreements that set out the schools’ mission to develop and promote a Catholic School faith community; imposed commitments regarding religious instruction, worship, and personal modeling of the faith; and explained that teach­ers’ performance would be reviewed on those bases. Each was also required to comply with her school’s faculty handbook, which set out similar expectations. Each taught religion in the classroom, wor­shipped with her students, prayed with her students, and had her per­formance measured on religious bases.

Both teachers sued their schools after their employment was termi­nated. Morrissey-Berru claimed that OLG had demoted her and had failed to renew her contract in order to replace her with a younger teacher in violation of the Age Discrimination in Employment Act of 1967. OLG invoked Hosanna-Tabor’s “ministerial exception” and suc­cessfully moved for summary judgment, but the Ninth Circuit re­versed, holding that Morrissey-Berru did not fall within the exception because she did not have the formal title of “minister,” had limited for­mal religious training, and did not hold herself out publicly as a reli­gious leader. Biel alleged that St. James discharged her because she had requested a leave of absence to obtain breast cancer treatment. Like OLG, St. James obtained summary judgment under the “minis­terial exception.” But the Ninth Circuit reversed, reasoning that Biel lacked Perich’s credentials, religious training, and ministerial back­ground.

Held: The First Amendment’s Religion Clauses foreclose the adjudica­tion of Morrissey-Berru’s and Biel’s employment-discrimination claims. Pp. 10–27.

(a) The independence of religious institutions in matters of “faith and doctrine” is closely linked to independence in what the Court hastermed “ ‘matters of church government.’ ” Hosanna-Tabor, 565 U. S., at 186. For this reason, courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions. Pp. 10–11.

(b) When the “ministerial exception” reached this Court in Hosanna-Tabor, the Court looked to precedent and the “background” againstwhich “the First Amendment was adopted,” 565 U. S., at 183, andunanimously recognized that the Religion Clauses foreclose certain employment-discrimination claims brought against religious organiza­tions, id., at 188. Pp. 11–14.

(c) In Hosanna-Tabor, the Court applied the “ministerial exception”but declined “to adopt a rigid formula for deciding when an employeequalifies as a minister.” 565 U. S., at 190. Instead, the Court identi­fied four relevant circumstances of Perich’s employment at an Evan­gelical Lutheran school. First, Perich’s church had given her the title of “minister, with a role distinct from that of most of its members.” Id., at 191. Second, her position “reflected a significant degree of religious training followed by a formal process of commissioning.” Ibid. Third, she “held herself out as a minister of the Church” and claimed certain tax benefits. Id., at 191–192. Fourth, her “job duties reflected a role in conveying the Church’s message and carrying out its mission.” Id., at 192. Pp. 14–16.

(d) A variety of factors may be important in determining whether aparticular position falls within the ministerial exception. The circum­stances that informed the Court’s decision in Hosanna-Tabor were rel­evant because of their relationship to Perich’s “role in conveying the Church’s message and carrying out its mission.” 565 U. S., at 192. But the recognition of the significance of those factors in Perich’s case did not mean that they must be met in all other cases. What matters is what an employee does. Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities thatlie at the very core of a private religious school’s mission. Pp. 16–21.

(e) Applying this understanding of the Religion Clauses here, it is apparent that Morrissey-Berru and Biel qualify for the exception rec­ognized in Hosanna-Tabor. There is abundant record evidence that they both performed vital religious duties, such as educating their stu­dents in the Catholic faith and guiding their students to live their lives in accordance with that faith. Their titles did not include the term “minister” and they had less formal religious training than Perich, but their core responsibilities were essentially the same. And their schools expressly saw them as playing a vital role in carrying out the church’s mission. A religious institution’s explanation of the role of its employ­ees in the life of the religion in question is important. Pp. 21–22.

(f) The Ninth Circuit mistakenly treated the circumstances the Court found relevant in Hosanna-Tabor as a checklist of items to be assessed and weighed against each other. That rigid test produced a distorted analysis. First, it invested undue significance in the fact thatMorrissey-Berru and Biel did not have clerical titles. Second, it as­signed too much weight to the fact that Morrissey-Berru and Biel had less formal religious schooling that Perich. Third, the St. James panelinappropriately diminished the significance of Biel’s duties. Respond­ents would make Hosanna-Tabor’s governing test even more rigid.And they go further astray in suggesting that an employee can never come within the Hosanna-Tabor exception unless the employee is a “practicing” member of the religion with which the employer is associ­ated. Deciding such questions risks judicial entanglement in religiousissues. Pp. 22–27.

No. 19–267, 769 Fed. Appx. 460; No. 19–348, 911 F. 3d 603, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, BREYER, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. 4 OUR LADY OF GUADALUPE SCHOOL v. MORRISSEY-BERRU Syllabus

THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. SO­TOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Video: Employee handbooks - 3rd in the Employment Law 101 series

[Watch the video]

This is the 3rd video in the Employment Law 101 series. I’m discussing employee handbooks and policy manuals.

Handbooks and policy manuals can contain a lot of important items.

One huge question is whether the handbooks or manuals become part of the contract between the employer and the employee. And that will determine whether (or not) their provisions are enforceable in court.

Video: Employment contracts – 2nd in the Employment Law 101 series

[Watch the video]

Video: Employment contracts – 2nd in the Employment Law 101 series.

This is a discussion of employment contracts, and some of the ways to create exceptions to the employment at-will doctrine.

Of course, you will think of many more items that you might want in an employment contract.

Video: Employment at-will – 1st in the Employment Law 101 series

[Watch the video]

Video: Employment at-will – 1st in the Employment Law 101 series.

This is a discussion of the employment at-will doctrine - what it is, how it works, and some of the exceptions.

LGBTQ employees win at US Supreme Court - video

[Video] Justice Gorsuch brushed aside claims that he was legislating from the bench by saying that gay and transgender discrimination violates Title VII. In a 6-3 decision the US Supreme Court held that “An employer who fires an individual merely for being gay or transgender violates Title VII.” Bostock v. Clayton County (US Supreme Ct 06/15/2020).

---

SUPREME COURT OF THE UNITED STATES

Syllabus

BOSTOCK v. CLAYTON COUNTY, GEORGIA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 17–1618. Argued October 8, 2019—Decided June 15, 2020

In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.

Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33.

(a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment re­solves these cases. Pp. 4–12.

(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employ­ment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “indi­vidual” means that the focus is on “[a] particular being as distin­guished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.

(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally pe­nalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.

(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also de­pended on being a parent of young children and the fact that the com­pany favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.

The lessons these cases hold are instructive here. First, it is irrele­vant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intention­ally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.

(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.

(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that inten­tional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discrim­inates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.

(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to en­force the law’s plain terms in the meantime. This Court has long re­jected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623,883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

LGBTQ employees win at US Supreme Court

SUPREME COURT OF THE UNITED STATES

Syllabus

BOSTOCK v. CLAYTON COUNTY, GEORGIA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 17–1618. Argued October 8, 2019—Decided June 15, 2020

In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she in- formed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.

Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33.

(a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment re­solves these cases. Pp. 4–12.

(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employ­ment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “indi­vidual” means that the focus is on “[a] particular being as distin­guished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.

(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally pe­nalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.

(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also de­pended on being a parent of young children and the fact that the com­pany favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.

The lessons these cases hold are instructive here. First, it is irrele­vant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intention­ally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.

(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.

(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that inten­tional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discrim­inates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.

(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to en­force the law’s plain terms in the meantime. This Court has long re­jected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623,883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH, J., filed a dissenting opinion.

Judge says NLRB's new election rules are unlawful

The US District Court for the District of Columbia has ruled "unlawful" several provisions of the NLRB's recent revision of rules governing NLRB elections. AFL-CIO v. NLRB (Dist DC 05/30/2020).

This comes one day before their effective date of May 31, 2020.

In a two-page order, the court said:

"[T]he challenged portions of the regulation at issue are not procedural rules that are exempted from the notice-and-comment rulemaking requirements of the APA, see 5 U.S.C. § 553(b)(3)(A), and because each of these specific provisions was promulgated without notice-and-comment rulemaking, each one must be held unlawful and set aside, see id. § 706(2). This Court will not vacate the remainder of the rule, however; instead, this matter will be remanded to the NLRB for reconsideration in light of this Court’s ruling."

The court promised an explanatory opinion “soon.”

Bright-line rule for NLRB dual-marked ballots

The NLRB has adopted a bright-line rule for dual-marked ballots in representation elections, holding that "where a ballot includes markings in more than one square or box, it is void." Providence Health & Services 369 NLRB No. 78 (05/13/2020) [PDF].

Pretty simple.

SCOTUS preview: Ministerial exception

[Video] I’m predicting a clear-cut victory for the schools in Our Lady of Guadalupe School v. Morrissey-Berru [Briefs].

Fifth grade teachers were fired, and claim violations of anti-discrimination laws. The schools argue that the 1st amendment “ministerial exception” allows them to decide who to hire and fire without any government interference.

The central issue is whether these teachers qualify as “ministers.”

Here’s hint at why I think the schools will win: I think there's already three Justices that are lined up in favor of the schools. Justice Alito and Kagan have made it very clear that all they care about is what this teacher is actually doing. They don't care about the titles or things like ordination and that sort of formal stuff. And Justice Thomas has said all he cares about is whether the school has a good faith belief that the teacher is helping to propagate the religion.

Employer waived its right to compel arbitration

[Video] We know that courts will enforce an arbitration clause in an employment agreement. We also know that active participation in a lawsuit can waive that right.

Here we have a case out of the District of Columbia. An ex-employee sued claiming employment discrimination and the employer filed a motion to dismiss, another motion to dismiss trying to move the case to the Philippines, filed an answer with 23 affirmative defenses, and agreed to a very lengthy discovery process.

Five months after the suit was filed the employer filed a motion to compel arbitration. And they had no explanation for that five month delay.

So the court held that this was a waiver. TRG Customer Solutions v. Smith (Dist of Columbia 04/30/2020) [PDF].

The court couldn't figure out whether this employer simply didn't realize until too late they had the right to arbitrate, or whether they simply waited until it was clear they couldn't get a dismissal. And the court talked about the problem of gamesmanship and manipulation.

In any event the employer waived its right to arbitrate, and this case is going to stay in court.

Employee? Or not?

[Video]

This video tells the stories of two people who sued claiming they were employees. They wanted to get paid minimum wage.

One was a juror who was paid $10 per day plus mileage.

The other was a man who chose to go to a drug and alcohol treatment center rather than jail. And the treatment center required him to work - for no pay at all.

They both lost. (No surprise.)

How then shall we live?

[Video] I usually have something dealing with employment law.

Today is different because today is different. My lovely wife has a few words to say on the topic of “How then shall we live?”

Remote arbitration hearings

[Video] Remote arbitration hearings could be your next best friend.

Video touches on security, control panel, controlling screen, private breakout rooms, exhibits, and witnesses.

SCOTUS age discrimination decision - video

[Video] A US Supreme Court age discrimination case holds that for federal employees, "any" discrimination can establish liability. However "but-for" causation required for a tangible remedy. Babb v. Wilkie (US Supreme Court 04/06/2020) (8-1) [PDF].

This decision was a victory for the employee, yet it was a hollow victory indeed.

Protocol for Remote Hearings

Here is my Protocol for Remote Hearings. You can also view and download a PDF.

     I have a Zoom Pro Level license, and am available to conduct remote arbitration hearings.

     This Protocol for Remote Hearings explains the use of Zoom for conducting a remote hearing. Once such a hearing is agreed upon, the arbitrator will issue precise instructions tailored to the specific case.

Cost: There is no added cost to the parties or to anyone participating in the hearing. Participants do not need to register with Zoom or to have a Zoom license.

Hardware: Use a PC, Mac, Linux, iOS, or Android. It is best to use a desktop, laptop, or tablet that has a webcam, and to have a DSL or good Wi-Fi connection. You can also use a smartphone or a voice-only telephone.

Initiating the hearing: The arbitrator will email a link to click in order to enter the hearing, along with a password. This will go to each person who will be attending the hearing – the advocates, each person on each side's team, and the witnesses.

When the hearing begins, each participant will be able to view all other participants, except for any participant using a voice-only telephone.

Physical locations: Participants can be anywhere: all together in one place, in separate places for the employer and union, each person in a separate place, or any combination of these.

Security: Participants will receive a password which should not be shared with others. Zoom meetings are encrypted. If the parties agree to have the arbitrator record the hearing, the recording will be saved on the arbitrator's local computer.

Private breakout rooms: The arbitrator will create a set of private breakout rooms – at least one for the Employer and one for the Union. During breaks, the arbitrator can assign each participant to a private breakout room where only those individuals can see each other and speak to each other.

Witnesses: If desired, each witness can be sequestered by having the arbitrator place each witness in a separate breakout room, and the arbitrator can bring the witness into the hearing when needed. The arbitrator will prepare special instructions for the witnesses.

Exhibits: Parties should agree on a method for submitting and exchanging exhibits, such as using a set of joint exhibits and emailing them to the arbitrator prior to the hearing. If a new exhibit needs to be introduced during the hearing, Zoom allows participants to transmit computer files to the other participants.

Recording: Parties should agree on whether or not the arbitrator will record the hearing. Any recording will be saved on the arbitrator's local computer (rather than in the cloud).

Pre-hearing practice: The arbitrator recommends that the parties participate in a complimentary practice session a week or two before the scheduled hearing to make sure everyone is familiar with the Zoom features.