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Pregnancy in the Workplace
Posted by: Jennifer Salvatore
January 31, 2012

New York Times Op-Ed "Pregnant, and Pushed Out of a Job"(1/30/12) describes a gap between discrimination laws and disability laws that too often allows employers to legally push pregnant women out of their jobs because they request an accommodation, like a lifting restriction, to maintain a healthy pregnancy. The author rightly notes that it is easier than it should be under existing civil rights laws for employers to fire women whose otherwise healthy pregnancies require some workplace accommodations, and advocates for changes in the law to more clearly protect the jobs of pregnant employees.

However, readers should also understand that the legal landscape is not as dismal for pregnant women as one might think. Every case is unique and there is no safe harbor for employers who wish to discriminate against pregnant workers. Conduct described by the author may violate Title VII because such practices have a disparate impact, it can be retaliatory if done to avoid granting an upcoming medical leave or to avoid paying benefits, and it's just plan discriminatory when an employer illegally perceives a pregnant woman as disabled (and therefore unable to do the job). In short, there are arguments to make under existing law to protect your job. If you are experiencing hostility or discrimination from your employer because of the need for a pregnancy-related accomodation, you should seek legal advice. We can help protect your job now, even while the legislators work on making existing law better for women and families.

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The "Ministerial Exception"
Posted by: Edward Macey
January 12, 2012

In 2004, a Michigan teacher was fired by her employer after asserting her rights under anti-discrimination laws and brought a straight-forward discrimination lawsuit. However, the United States Supreme Court recently ruled that she could not proceed with her claim. Why did state and federal anti-discrimination laws not apply to this teacher? The Supreme Court ruled that she was a "minister" in the church where she taught and that therefore, anti-discrimination laws do not apply to her.

In Hosanna-Tabor v. EEOC, the Supreme Court for the first time formally recognized the so-called "ministerial exception." The Court was confronted with the competing interests of the First Amendment's guarantee of religious freedom and anti-discrimination laws.

In the case, Cheryl Perich was a teacher at Hosanna Tabor Evangelical Lutheran Church in Redford. After starting as a "lay" teacher, she completed her colloquy and thus became a "called teacher" and a commissioned minister. Ms. Perich served her church through teaching. She focused on religious teachings for only 45-minutes per day, and other "lay" teachers did the exact same job as her.

Nonetheless, a unanimous Supreme Court determined that the First Amendment made anti-discrimination laws unenforceable in this setting. "The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs."

The Court did not fully determine the reach of the ministerial exception. It is obvious that the head of a church would be covered and that a janitor with no ministerial role would not. This opinion gives a great deal of discretion to religious organizations to designate their employees as ministers, but the court was careful to note that mere titles are not sufficient in and of themselves. In this case, it was important that Ms. Perich's "job duties reflected a role in conveying the Church's message and carrying out its mission." She regularly led her class in prayer, religious instruction, and occasionally led school-wide chapel service.

The full reach of Hosanna-Tabor will not be immediately known, but it is important for employees of religious organizations to understand that they may not have the same employment rights as other employees. While anti-discrimination laws are certainly a good thing, the Supreme Court determined that they do not trump the First Amendment.

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