When the 7th U.S. Circuit Court of Appeals decided Schleicher v. Salvation Army in February, it held that two ministers of the Salvation Army could not seek employment protections under the Fair Labor Standards Act. The decision was the latest in a group of recent cases dealing with religion in the workplace, an issue the courts have struggled with since the federal government first extended protections to workers from discriminatory practices of employers.
In another case, Rweyemamu v. Cote, the 2nd Circuit applied the ministerial exception to Title VII for the first time, becoming at least the ninth circuit to do so.
Two other cases were Tepper v. Potter, a 6th Circuit case that addressed a postal employee’s rights in keeping his Sabbath, and Francis v. Mineta (3rd Circuit), which focused on the procedures a federal employee must follow in order to challenge allegedly discriminatory treatment.
All four cases affect how much employees are protected in the workplace, and all four courts found in favor of the employer. In a final recent opinion that dealt with religion in the workplace, however (Sturgill v. UPS), a UPS employee prevailed over the delivery company that fired him for refusing to deliver packages after his Sabbath began on Friday evenings.
Schleicher v. Salvation Army
In Schleicher v. Salvation Army, the 7th Circuit determined that FLSA could not be applied to church officials administering a thrift store. The court’s opinion, written by Judge Richard Posner, is a fairly straightforward example of what has become known as the “ministerial exception” to employment statutes, although the opinion proposes calling it the internal-affairs doctrine or the minister’s exception “to avoid the misleading connotation of ‘ministerial.’” Although the various courts of appeals apply the exception differently, it essentially exempts religious organizations from following most aspects of federal employment law with regard to employees with religious duties. Thus, church leaders are not protected by these laws, while janitors and other nonreligious employees are.
Steve and Lorrie Schleicher were ordained ministers of the Salvation Army, each with the rank of captain. The Schleichers administered the church’s Adult Rehabilitation Center in Indianapolis. Their duties included overseeing five thrift shops as well as leading worship, teaching religious classes, preaching, and other duties traditionally performed by clergy. As ministers of the Salvation Army, the Schleichers were paid only an allowance of $150 a week to cover basic needs, which, given the number of hours they worked, including overtime, was well below the federal minimum wage.
The question in this case was “whether the fact that a church has a commercial dimension … brings its ministers under the Fair Labor Standards Act.” In answering no, the court characterized the ministers’ function as managing a religious complex that includes thrift shops rather than as exclusively commercial. Further, because the Salvation Army’s rehabilitation centers are essentially self-contained religious communities, they are the “functional equivalents of cathedrals or monasteries, and the ministers who administer them are therefore engaged in ecclesiastical administration.”
The court emphasized that although clerical personnel are presumed not to be covered by FLSA, an employee could rebut the presumption with proof that the church was a fake, or the title of minister was used to describe employees solely engaged in commercial activities. In other words, although the Schleichers did not succeed in doing so in this case, a plaintiff in the future could challenge a church’s characterization of the employee’s function in order to receive the benefit of FLSA’s protections.
Tepper v. Potter
In Tepper v. Potter, the 6th Circuit upheld a district court grant of summary judgment to the U.S. Postal Service because the plaintiff, a Messianic Jew working as a letter carrier, failed to show an adverse employment action.
The carrier, Martin Tepper, started working for the Postal Service in 1980 in Chagrin Falls, Ohio, near Cleveland. In the 1980s, he became a Messianic Jew and started to observe the Sabbath on Saturdays. In 1992 the Postal Service granted him an accommodation that allowed him not to work on Saturdays, while other employees worked a five-day work week with Sundays off and rotating the second day.
The Postal Service later incorporated the exception for Tepper into its labor agreement with the Chagrin Falls branch of the National Association of Letter Carriers. According to Tepper’s appellate brief, the agreement stated, “All letter carriers' routes in the Chagrin Falls Post Office shall be on a rotating day off schedule with the exception of Martin Tepper who will have Saturdays off.” In 2002, however, the union and the Postal Service agreed to end Tepper’s accommodation beginning in 2003. The change followed a unanimous vote by the union to recommend ending the accommodation. Tepper neither attended nor knew that his situation would be discussed at the union meeting.
During the time Tepper was excluded from the rotating schedule, union and Postal Service officials acknowledge that coworkers occasionally “grumbled” about Tepper’s schedule. Tepper alleged that several other letter carriers complained to him that he should have to work on Saturdays and commented about the information he missed during meetings held on his days off. He also claimed that one colleague repeatedly asked him whether he was going to "blow the Shofar this Saturday," referring to the ram’s horn used in Jewish worship, particularly on Rosh Hashanah.
At stake in the case was whether being forced to take unpaid days off to meet religious obligations constitutes religious discrimination by one's employer. Tepper argued that it does because such a requirement reduces his pay and retirement benefits. Nevertheless, the court reasoned that “Tepper is simply not being paid for the time he does not work; he has not been disciplined or discharged.” As such, it held that no accommodation was required.
Additionally, Tepper argued that he was the victim of religious discrimination. Such a claim requires the plaintiff to show (1) he is a member of a protected class, (2) he experienced an adverse employment action, (3) he was qualified for the position, and (4) the person who replaced him was outside of the plaintiff’s protected class or the plaintiff was treated differently from other employees in similar situations. The court held that Tepper had not experienced an “adverse employment action” because he had not experienced “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Further, the court pointed out that practicing his religion by taking off Saturdays he otherwise would have had to work did not result in any change in title, pay, benefits, responsibilities or working conditions.
The court also found that Tepper was not treated differently from other workers, though he claimed all other workers avoided work on their Sabbath. The court found no evidence either that the other workers observe the Sabbath on Sundays or that the official purpose of not working on Sundays is to permit workers to do so.
Francis v. Mineta
In Francis v. Mineta, newly hired Transportation Security Administration employee Albion Francis refused to cut his dreadlocks, citing his religious beliefs. His supervisors at TSA had informed Francis, along with the rest of an incoming group of employees, that TSA was a uniformed service with a grooming policy. Francis took the oath, but at the end of 40 hours of on-the-job training, he had not changed his hairstyle. At that time, TSA employee screening manager Steven Betz informed Francis and two other new hires that they were not complying with the grooming policy and needed to conform. According to Francis, he told Betz that he would not cut his hair because his dreadlocks were based on his religious beliefs, at which point Betz ordered him to sign a separation agreement that terminated Francis’s employment with TSA.
Neither the trial court nor the 3rd Circuit in this case reached the issue of whether TSA illegally discriminated against Francis because both courts held that he brought his claim under the wrong statute. In filing his complaint, Francis cited the Religious Freedom Restoration Act, which, as currently construed by the courts, prohibits the federal government from substantially burdening religious exercise unless it is the least-restrictive means for accomplishing a compelling government interest.
Francis argued that because this was a case in which the federal government was burdening his religious exercise and there existed a less-restrictive means for accomplishing security screening, his firing violated RFRA. In making this argument, Francis attempted to avoid the procedures required by Title VII of the Civil Rights Act of 1964, amended in 1972 to apply to federal employees. The courts have interpreted Title VII to require an employee to exhaust all remedies offered by the employer before filing suit for a religious-discrimination claim.
Sturgill v. UPS
Finally, in Sturgill v. UPS, the 8th Circuit considered whether UPS employee Todd Sturgill was entitled to damages and reinstatement after he was terminated for leaving work before all his packages were delivered in order to meet his religious obligations to observe the Sabbath. According to his Seventh-day Adventist belief, the Sabbath begins at sundown each Friday.
The jury trial resulted in awards for Sturgill, including punitive damages. UPS argued on appeal that the trial court’s jury instructions erroneously stated the standard for reasonable accommodation of religious practices. It also contested the jury’s award of the various damages and injunctive relief.
Sturgill had become a Seventh-day Adventist in May 2004. When he realized that his Sabbath obligation would prohibit him from working his regular hours during the winter months, he requested that UPS exempt him from work after sundown on Fridays and suggested some alternative scheduling arrangements to this end. In its rejection of Sturgill’s request, UPS stated that it could not accommodate him consistently with its own policies or the collective-bargaining agreement with the union. It also noted that the union held that he should be transferred to another, less desirable, position that would not require him to work Friday evenings or Saturdays, but that this position would not be available until spring 2005.
As the days shortened in 2004, his supervisor regularly “split” Sturgill's loads with other drivers, ensuring he could leave by sundown on Friday. When a higher-level manager learned of an instance when this arrangement occurred, he warned Sturgill he would be fired if he did not deliver all his packages again. Then, on Dec. 17, 2004, Sturgill realized he would not be able to deliver all his packages before sundown. When Sturgill asked if his load could be split, his supervisor could not find another driver to help. Sturgill then called the manager, who again told him that he would be fired if he did not deliver all his packages. Sturgill delivered packages until sundown, returned about 35 packages to UPS, and left work. A supervisor had to complete his route, and he was terminated.
The court first addressed the jury instructions given by the District Court for the Western District of Alabama, which UPS claimed wrongly stated the meaning of reasonable accommodation. Once an employee has shown that religious discrimination has occurred, the defendant employer can then show, in the words of the statute, that it is “unable to reasonably accommodate to an employee's … religious observance or practice without undue hardship on the conduct of the employer's business.” At trial, UPS had argued that it was unable to reasonably accommodate Sturgill without undue hardship because the scheduling changes Sturgill proposed would have been too costly or inconsistent with the established collective-bargaining agreement between the company and the drivers’ union. Sturgill’s immediate supervisor testified that he could have accommodated Sturgill on the date he was terminated if he had had advance notice.
To guide the jury’s determination of whether reasonable accommodation would have imposed an undue hardship, the trial court’s instructions stated that reasonable accommodation requires the employer to eliminate any conflict between the employee’s religious practice and its own work requirements. On appeal, Sturgill and supporting amicus briefs from various religious bodies argued to uphold this as the appropriate standard. UPS argued that reasonable accommodation means only that the conflict is minimized, not eliminated. The 8th Circuit rejected both of these standards in favor of a more fact-based, case-by-case approach in which juries consider whether an accommodation is reasonable in the totality of circumstances. The appeals court held that although the district court had in fact used an erroneous standard, the error had no probable effect on the jury’s verdict, which the circuit court upheld.
The 8th Circuit also reversed the punitive damages because UPS showed it had made good-faith efforts to comply with Title VII, and especially because the union had agreed with its efforts. It similarly held that the district court’s injunction was too broadly worded for UPS to follow in the future.
Josh Tatum, a third-year law student and Master's of Divinity candidate at Vanderbilt University, will clerk for Chief Justice Randall T. Shepard of the Indiana Supreme Court beginning this fall.