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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Monday, February 5, 2007

University firing transgender prof

From Michigan comes the story of Professor Julie Marie Nemecek, who has been fired from her university post as assistant dean of adult studies and Associate Professor at Spring Arbor University. The University is firing the professor because she is transitioning from male to female. She has filed a complaint with the EEOC.

In response to the EEOC complaint, the university cites its Bona Fide Occupational Qualification (BFOQ) that legally allows hiring only Christian employees. "We expect our faculty to model Christian character as an example for our students," read a university statement issued by a public-relations firm. Faculty who "persist with activities that are inconsistent with the Christian faith" are subject to firing. College officials said the Christian mandate is critical to the university and is protected by state and federal civil-rights laws.

Nemecek’s attorney, the redoubtable Randi Barnabee, argues that, to the contrary, Spring Arbor's main focus is education. It admits students of any faith, not all of its faculty is Christian, and it is a recipient of state and federal funds that prevent discrimination based on gender. "You cannot discriminate under the guise of religious freedom," Barnabee said. Barnabee is the one who won the Smith v. City of Salem decision in the Sixth Circuit, which found that Title VII sex discrimination includes transgender employees.

In all our talk of Title VII, sex discrimination, and transgender employees, we have not yet addressed the fact that Title VII, by its own terms, has different rules when it comes to religion. The structure of Title VII on this point is confusing, and the poorly drafted amendments of 1972 and the addition of First Amendment issues by the courts make it worse. Legal scholars have largely ignored this quagmire. There is one recent article of use specifically on the subject of the Title VII exception for religious educational institutions: Jamie Darin Prenkert’s Liberty, Diversity, Academic Freedom, And Survival: Preferential Hiring Among Religiously-Affiliated Institutions Of Higher Education, 22 Hofstra Labor and Employment Law Journal 1 (2004). As these articles go, it’s not too long – only 57 pages.

The bottom line is that a religious school is explicitly allowed to employ people of a particular religion if it is “in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of such school, college, university, or other educational institution or institution of learning is directed toward the propagation of a particular religion.” 42 U.S.C.A. § 2000e-2(e)(1)

If it’s not connected to a religion in this way, it can still escape liability through the BFOQ requirement. Thisapplies to any employer, not just educational institutions, and it permits using religion as a basis for employment “in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” 42 U.S.C.A. § 2000e-2(e)(1) This exception is difficult to prove because it requires proof of “bona fide occupational qualification” (BFOQ) of religion for “normal operations.”

Many universities have religious roots, but that doesn’t mean they qualify for the exemption. The school has to be substantially controlled or supported by a church. For example, in EEOC v. Mississippi College, 626 F.2d 477, Mississippi College received the exemption because it was owned and operated by a church to train clergy in the faith. Similarly, in EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277, the same was true of Southwestern Baptist Theological Seminary, which was principally supported and wholly controlled by an association of Southern Baptist churches for the avowed purpose of training ministers to serve the Baptist denomination. In Siegel v. Truett-McConnell College, 13 F.Supp.2d 1335, the school received the exemption because it proved that it was substantially controlled and managed by a church, which had the power to direct, restrict and govern the college. The college did not receive any federal or state funding, but did receive $714,934 in annual funding from religious sources.

To the contrary, however, in Pime v. Loyola University, 803 F.2d 351 (7th Cir 1986), Loyola University did not receive the exemption. It was not supported, controlled or managed by the Society of Jesus, although the school based its mission and teaching on the Society’s principles. Similarly, in EEOC v. Kamehameha Schools, 990 F.2d 458, a K-12 school was not granted the exception because the teachers provided instruction in secular subjects in the traditional secular way, and there was nothing to suggest that adherence to the Protestant faith was essential to performance of job. The schools were essentially secular institutions operating within historical tradition that included Protestantism and had a primarily secular purpose and character rather than a primarily religious nature.

The BFOQ requires a determination of whether the essence of the business would be undermined if the employer did not employ exclusively members of the given religion; that is, whether employing a member of the given religion is essential to the normal operation of the employer's business. The essence of the business can be determined by analyzing the service or product the employer provides. For example, the essence of an airline's business is transporting passengers, not making passengers feel psychologically secure while riding in an airplane. The determination of what constitutes the essence or fundamental objective of an employer's business or enterprise and of what constitutes the normal operation of that business depends on the facts. Therefore, the determination must be made on a case-by-case basis. If the job in question has been successfully performed by members of other religions without impairing the normal operation of the business, either for the employer or for employers with similar businesses, then there is no BFOQ. EEOC Compliance Manual, Section 625.3

It must be kept in mind that all this relates specifically to the hiring of people based on religion. The employee, in order to prevail in court, must show that the adverse action is motivated by religion. There is a serious dispute in the courts as to whether being fired by a religious institution for violation of religious rules, such as being pregnant and unmarried, or for being gay, or for getting married without obtaining a religious divorce or annulment, or committing adultery, is based on religious discrimination. Some courts have said such actions are, or can be, a Title VII violation subjecting the employer to penalties. Vigars v. Valley Christian Center of Dublin, Cal., 805 F.Supp. 802 Others have said it is discrimination based on failure to conform to behavioral standards, not religious beliefs. Pedreira v. Kentucky Baptist Homes for Children, Inc., 186 F.Supp.2d 757; Hall v. Baptist Memorial Health Care Corp., 215 F.3d 618; McCrory v. Rapides Regional Medical Center, 635 F.Supp. 975 Others have said it is religious discrimination, but that it is permitted to dismiss a person whose behavior violates religious principles as a BFOQ or on First Amendment grounds. Boyd v. Harding Academy of Memphis, Inc., 887 F.Supp. 157; Ganzy v. Allen Christian School, 995 F.Supp. 340; Little v. St. Mary Magdalene Parish, 739 F.Supp. 1003; Gosche v. Calvert High School, N.D.Ohio 1998, 997 F.Supp. 867

Turning from this legal jargon to assessing the relative merits of Professor Nemacek’s complaints as against Spring Arbor University, the school’s website does not indicate that the school is supported, controlled or managed by a religion. Therefore, it is going to have to show a BFOQ. But Nemecek is not a clergyman or a teacher of religious classes, and it doesn’t hire only religious Wesleyan Protestants (the school’s denomination). Its curriculum is not directed solely to the propagation of a religion, since most of its courses are secular. In fact, its website discloses that its mission is based on what it calls “The Concept,” which includes secular as well as religious aims. “The Concept goes to the heart of our mission as a university. By anchoring our mission to the 'lifelong involvement in the study and application of the liberal arts,' we connect with a 2,500 year history dating back to Socrates, Plato and Aristotle." http://www.arbor.edu/pdf/keepingtheconcept.pdf This doesn’t bode well for its BFOQ defense.

Spring Arbor’s claim is also made more difficult by the fact that it is located in the State of Michigan. The Federal Court of Appeals for the Sixth Circuit, which includes Michigan, has ruled that Title VII sex discrimination includes discrimination based on transgender identity. (In addition, Michigan has its own statutes that may be interpreted to prohibit gender identity discrimination.) The courts have ruled in many cases that Title VII’s religious exceptions do not permit race or sex discrimination. My guess is that Spring Arbor is not going to prevail on its BFOQ defense.

5 comments:

DeniseUMLaw said...

"The Federal Court of Appeals for the Sixth Circuit, which includes Michigan, has ruled that Title VII sex discrimination includes discrimination based on transgender identity."

Actually, Jillian, I don't think this is a good interpretation of the 6th Circuit's opinion. Indeed, when the opinion was first published it DID explicitly embrace such protection. However, threatened with appeal to the en banc court, the panel redacted that language and left the opinion grounded in non-conformity to gender roles. This leaves a trans person in the unfortunate position of having to argue that they ARE their natal sex and that they simply behave differently than people would "expect" for that sex. Still, it is a solid precedent.

Dr. Jillian Todd Weiss said...

Interesting point, Denise. I'd be interested in hearing more about this redaction, and where the specific texts can be found. I also think the reasoning in Smith v. Salem is open to question. More significantly, however, I note that there are other precedents that negate the validity of Ulane and progeny. In fact, it is my strong opinion that the Supreme Court, when faced with this decision, as it undoubtedly will be in the next several years, will rule that Title VII "sex" includes "gender identity." I have just submitted an article on this point for publication.

DeniseUMLaw said...

I sure hope you're right about the Supremes. There is precedent going both ways. Of course, *I* like the Smith case. :)

I've got a copy of the original Smith opinion; I can email it to you, if you like.

I look forward to seeing your article! I just completed some research myself (for a project for Catharine MacKinnon) that leads me to believe that Ulane is largely overruled. Unfortunately, there are a couple of cases out there that still rely on it and its progeny.

Anonymous said...

Hi all,

I don't think Title VII protects "transsexuals" inasmuch as the employer likely wouldn't hire an affirmed female or an affirmed male -- the equal opportunity discriminating employer defense. I think a "gender ambiguous" person and a "crossdresser" might have a chance under Title VII via the Pricewaterhouse/Hopkins decision, though I suspect many courts would uphold an employer's dress and grooming codes unless extremely arbitrary. (Last year the federal Ninth Circuit upheld a casino's requirement that female staff wear full makeup and barred male staff from wearing any makeup. The majority opinion contains some gender identity/expression unfriendly language. The dissenting opinion by Judge Kozinski is wonderful. You can read the opinions at at http://www.ca9.uscourts.gov/coa/newopinions.nsf/33123AAFB79F09708825714F006B0F4A/$file/0315045.pdf?openelement.

Last year GLAD represented a St. Anselm College professor who was fired because she was gender dysphoric. The case settled. You can read the GLAD press release at http://www.glad.org/News_Room/press107-02-08-06.html.

For a fascinating ride into the difficulties of applying Title VII to employment decisions made by religious institutions, take a look at the federal Third Circuit opinions from last year in the Gannon University case. The court initially ruled that the employee in question was protected by Title VII, with one of the three judges dissenting. http://www.ca3.uscourts.gov/opinarch/051222p.pdf.

Just days before the decision was issued, the judge who wrote the majority decision died. The university requested a rehearing (which it could have done even if the judge hadn't died). The rehearing was granted.

With the judge who wrote the initial majority opinion dead, and the other judge in the majority dropping off the case for undisclosed reasons, two other judges were assigned to rehear the case. Those two judges joined with the dissenting judge and ruled in favor of the university. http://www.ca3.uscourts.gov/opinarch/051222pa.pdf.

Christine B

Juan said...

It really is unfortunate that in this day and age where we are trying to make headway with workplace diversity for everyone that a university would be so shortsighted and closed minded to fire this individual based on transgender identity.

Juan Rodriguez
Editor DiversityJobs.com