10th Circuit Finds Church Immune From Workplace Discrimination Suit
http://alm-editorial-us.msgfocus.com/c/1v91oFMRsY9j6WpqH 10th Circuit Finds Church Immune From Workplace Discrimination Suit The National Law Journal An Oklahoma woman who alleged that a Catholic bishop subjected her to severe and pervasive gender and age discrimination at work is not entitled to protection by federal employment laws, the 10th Circuit has ruled, making it the latest court to weigh in on the issue of the ministerial exception. The circuit concluded that the plaintiff's duties were not just administrative but also spiritual, therefore granting the church immunity from her suit. Joel L. Sogol Attorney at Law 811 21st Avenue Tuscaloosa, Alabama 35401 ph (205) 345-0966 fx (205) 345-0971 mailto:jlsa...@wwisp.com jlsa...@wwisp.com Ben Franklin observed that truth wins a fair fight -- which is why we have evidence rules in U.S. courts. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
Joel-- Thanks for sending this along. I had not seen it. Given her position, the 10th Circuit probably got this one correct under standard ministerial exception reasoning. So the question is what to do about the social harm separate from her particular case. I have seen a number of these cases now, and women go into these positions assuming that they are covered by the state and federal anti-discrimination laws (and/or an assumption that religious employers will not act unfairly). Could states pass laws that require religious institutions to make explicit when a person is hired (for certain positions) that they are not subject to the requirements of the federal anti-discrimination laws? I know all the religious lobbyists would treat this as offensive, but there are enough women out there who have been treated like this that I think state legislatures should be thinking in these terms. But I assume there are those who would argue it violates some theory of autonomy? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
Bob makes very good points but I'm not persuaded. Religious employers can be required to report child abuse by their employees, so why can't they be required to provide legal boilerplate to incoming employees? If Bob is right, we have serious problems in my view. The public policy problem is that no religious organization is going to make such a warning without being prodded by the law (or insurance cos., but they do not prod without legal --aka financial -- consequences). So we are stuck with obvious harm to employees of religious organizations but no solution. I am a firm believer that the Constitution was not intended and should not make it impossible for government to prevent or remedy substantial harm. So that leaves the government -- charged with protecting citizens from harm -- on Bob's theory hamstrung from requiring religious employers to issue a warning regarding the state of the law. So how does the government protect its citizens? I guess there are several public education options: (1) public service announcement: if you are considering or are working for a religious institution in a religious capacity, you need to understand that it is immune under judicial doctrine from anti-discrimination laws, including sexual harassment and gender discrimination (2) on every W-2, which the religious employer must provide to every full-time employee, right?, there is boilerplate saying the same as above. Here is another option-- how about no religious organization can be eligible for faith-based funding unless it provides to its employees a statement that it is immune from the anti-discrimination laws? Marci In a message dated 7/16/2010 3:13:44 P.M. Eastern Daylight Time, rtut...@law.gwu.edu writes: Marci's idea of a warning for ministerial employees would certainly be a prudent step for religious employers to take on their own initiative, but I don't think the state could impose such a requirement as a condition of the religious employer invoking the exception in litigation -- the exception seems to me jurisdictional, not something derived from a religious organization's claim of autonomy (about which there is good reason to be dubious) but rather from courts' constitutional inability to determine what is adequate qualification for or performance of the ministerial role. Bob Tuttle ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Is a patient who believes Jesus would save [me] competent to refuse life-saving medical treatment?
As a general matter, it's always seemed to me that determinations of mental competence with respect to a specific judgment should not be based solely on the rationality of that specific judgment, but should look instead to the entirety of a person's mental state. Even putting that view to one side, though, the crucial question in this case, I think, is not whether J.M. believes in miracles, even to a degree that the rest of us would find over-optimistic, but whether she understands, as a matter of pure fact, that a miracle would be necessary to save her life. I'm also bothered by the focus on the inconsistency and unorthodoxy of her views. If the case is viewed through the lens of religious liberty, it should be clear that protected religious commitments need be neither consistent nor orthodox. And if the case is simply viewed under the rubric of patient autonomy, it seems odd that irrational decisions unsupported by medical evidence would be protected, but confidence in miracles (however unreasonable, inconsistent, or unorthodox that confidence is) would not be. Finally, as to consistency: Even a non-religious person with no faith in miracles might well distinguish between blood transfusions and resuscitation, which are one-time life-saving procedures, and dialysis, which involves an indefinite course of often enervating, dispiriting, treatment. The point in that non-religious case would not be that the person wanted to die, but that he or she was willing to undergo some procedures but not others, in order to live. In the case of J.M., it might be that she thinks that God wants her to look to doctors to save her life through transfusions, resuscitation, etc., but would intervene miraculously to avoid her having to suffer the torment of dialysis. This is not a judgment I would make, but I'm not J.M. Take care. Perry From: Volokh, Eugene vol...@law.ucla.edu Date: Thu, 15 Jul 2010 14:58:50 -0700 From In re Matter of J.M. (N.J. Super. Ct.), http://www.judiciary.state.nj.us/decisions/BER_P_036_10.pdf, just released earlier this month (for some interesting reader comments, see http://volokh.com/2010/07/15/is-a-patient-who-believes-jesus-would-save-me-competent-to-refuse-life-saving-medical-treatment/#comments): A patient has capacity to consent to medical treatment if she can reasonably understand her condition, the effect of the proposed treatment, and the risks of both undergoing and refusing the treatment. In re Conroy, 98 N.J. 321, 382 (1985). Of the three psychiatrists who testified, two of them determined J.M. lacked capacity to refuse dialysis. Dr. Psemar indicated J.M. does not acknowledge the risk of refusing dialysis. She demonstrated anxiety, depression, and an inability to problem-solve. Dr. Dealwis testified J.M. did not believe she would die if not treated, and therefore, was not making a reasoned decision to choose death over dialysis. They both believed that because she did not understand the likely consequences of refusing treatment, she lacked capacity to make decisions about her health. The dissenting psychiatrist, Dr. Scham, acknowledged that he is not an expert in competency evaluations and only does five to six of them every year. He said J.M.s mental status is clear and she has adequate judgment, but he also acknowledged her views were inconsistent in that she accepted blood transfusions and resuscitation, but not dialysis. Dr. Scham believed that J.M. understood she would die without dialysis, yet he also testified J.M. stated God would save her. When J.M. herself testified, she asserted that she would not die without dialysis because Jesus would save her A competent patient is able to choose his course of treatment even if his medical decision may seem irrational or unsupported by medical evidence. [Footnote: New Jersey courts have ruled that a patient found to be competent and aware of the consequences of her decision may exercise her right to refuse treatment for any reason, including when treatment violates the tenets of her religion. Further, guardians of incompetent patients must consider the tenets of a patients religion when determining the proper course of treatment. J.M.s refusal of treatment was not premised upon an established tenet of her religion precluding certain medical procedures, as evidenced by her consent to all other medical treatment and her pastors attempt to convince her to undergo dialysis. As a result, her belief that God would save her does not preclude her from being found incompetent, nor does the appointed guardian need to act on that professed belief.] If a patient is unable to understand the consequences of the decision, however, that patient is unable to give informed consent and is therefore incapacitated. The Court found, by clear and convincing evidence, that J.M. does not have the capacity to make a decision regarding dialysis. She had no long-lasting psychiatric disability, but rather demonstrated a lack of understanding of
Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
I don't object to the duty Marci seeks to impose - notice to ministerial employees of their limited right to bring certain kinds of actions against their religious employer. The remedy is the problem - I assumed from Marci's original post that failure to give notice would result in waiver of the ministerial exception, and I don't think it is (or should be) subject to waiver. That's why the required duty to report child abuse is distinguishable - the duty's not the problem. (Interesting hypo at the intersection of the two -- a pastor reports a fellow pastor's sexual abuse of a child, and the reporting pastor is fired by the religious employer. The discharged pastor brings a wrongful discharge action - result? The ministerial exception should apply, barring the suit, even though the reporting pastor (and the employing organization) had a legal duty to report.) The options you provide - apart from the last one - are all by way of notice, and while others might weigh in with concerns, I think it would be perfectly fine to impose the requirements. In general, I think the same with the condition on eligibility for benefits - if all that's required is notice as the price of entry (rather than waiver as the condition), it's hard to see the objection. So what remedy, apart from waiver of the exception, would you propose? Bob -On Fri, Jul 16, 2010 at 3:44 PM, hamilto...@aol.com wrote: Bob makes very good points but I'm not persuaded. Religious employers can be required to report child abuse by their employees, so why can't they be required to provide legal boilerplate to incoming employees? If Bob is right, we have serious problems in my view. The public policy problem is that no religious organization is going to make such a warning without being prodded by the law (or insurance cos., but they do not prod without legal --aka financial -- consequences). So we are stuck with obvious harm to employees of religious organizations but no solution. I am a firm believer that the Constitution was not intended and should not make it impossible for government to prevent or remedy substantial harm. So that leaves the government -- charged with protecting citizens from harm -- on Bob's theory hamstrung from requiring religious employers to issue a warning regarding the state of the law. So how does the government protect its citizens? I guess there are several public education options: (1) public service announcement: if you are considering or are working for a religious institution in a religious capacity, you need to understand that it is immune under judicial doctrine from anti-discrimination laws, including sexual harassment and gender discrimination (2) on every W-2, which the religious employer must provide to every full-time employee, right?, there is boilerplate saying the same as above. Here is another option-- how about no religious organization can be eligible for faith-based funding unless it provides to its employees a statement that it is immune from the anti-discrimination laws? Marci In a message dated 7/16/2010 3:13:44 P.M. Eastern Daylight Time, rtut...@law.gwu.edu writes: Marci's idea of a warning for ministerial employees would certainly be a prudent step for religious employers to take on their own initiative, but I don't think the state could impose such a requirement as a condition of the religious employer invoking the exception in litigation -- the exception seems to me jurisdictional, not something derived from a religious organization's claim of autonomy (about which there is good reason to be dubious) but rather from courts' constitutional inability to determine what is adequate qualification for or performance of the ministerial role. Bob Tuttle ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Robert Tuttle Professor of Law David R. and Sherry Kirschner Berz Research Professor of Law Religion GWU Law School SSRN download page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=271025 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
