Title VII Complications
The latest post from Dr. Jillian Todd Weiss's blog Transgender Workplace Diversity discusses a case where Julie Marie Nemecek, a Spring Arbor University professor, was fired after changing sex from male to female. Nemecek filed a complaint with the EEOC and the university rebutted with a BFOQ defense, citing Nemecek's acts were "inconsistent with the Christian faith". When I first read this, I thought this was a weak argument because non-Christian professors should be able to teach just as well as Christian professors. Indeed, the article states that proving religion as a BFOQ for "normal operations" of the school would be difficult to prove. There is another rule though, that allows religious schools to hire people of a particular religion if it is substantially controlled or supported by a church. Weiss then brings up the dispute among the courts as to whether or not firing an employee for "violation of religious rules" constitutes as religous discrimination or failure to conform to behavioral standards. Weiss also notes that courts have held that the religious exception to Title VII doesn't allow race or sex discrimination.
After reading the blog article, it seems to me that Spring Arbor University will not be able to hide behind the religious employer exception because it does not look substantially controlled or supported by a church. The case looks more similar to Prime v. Loyola University than other cases where religious seminaries fell under the exception. As for Spring Arbor's BFOQ defense, I think the "normal operation" of being a professor is not affected by religion, especially because most of the classes at the university are secular. The university may claim that it fired Nemecek because she didn't conform to the university's behavior standards. But then Nemecek may be able to make a sex discrimination claim because she does not act as men are expected to. What do you all think?
After reading the blog article, it seems to me that Spring Arbor University will not be able to hide behind the religious employer exception because it does not look substantially controlled or supported by a church. The case looks more similar to Prime v. Loyola University than other cases where religious seminaries fell under the exception. As for Spring Arbor's BFOQ defense, I think the "normal operation" of being a professor is not affected by religion, especially because most of the classes at the university are secular. The university may claim that it fired Nemecek because she didn't conform to the university's behavior standards. But then Nemecek may be able to make a sex discrimination claim because she does not act as men are expected to. What do you all think?
posted by Justin at
6:38 PM
1 Comments:
As I recently wrote to Dr. Weiss in an e-mail, it's not quite as clear to me that Spring Arbor is not covered under the religious employer (or religious educational institution) exemption. The question relies on a multi-factor factual inquiry and I didn't find enough in Dr. Weiss's post or on the Spring Arbor website to suggest that it is a foregone conclusion. The Spring Arbor board of trustees has a number of Free Methodist Church officials and ministers on it and the Free Methodist Church of America and its constituent parts are significant contributors to the school. Dr. Weiss says that the school’s denomination is “Wesleyan Protestant.” I think it’s more accurate to say that Wesleyan Protestant is the broad religious tradition to which the school and it's founding denomination belongs. It appears from my perusal of the website that it was founded by and has always had a relationship with the Free Methodist Church of America, which would be its denominational affiliation. Those facts leave me reticent to accept the claim that the exemptions in Title VII don't apply.
Furthermore, as the post and the comments to the posts point out, it's not a closed question as to whether Spring Arbor needs to even rely on the religious employer/educational exemptions or the BFOQ to justify its decision. On the other hand, it's also not clear that Spring Arbor would be free from liability if either or both were found applicable. It's not entirely clear that its decision about Prof. Nemacek was "because of" either religion or sex. It may have been "because of transsexualism. (Dr. Weiss's post, as Justin notes, suggests that Spring Arbor tried to justify its decision by citing religious objections. Without seing the context in which that justification was put forth, it may or may not be an actual legal defense or even a truthful justification.) Though the Sixth Circuit Court of Appeals, under whose jurisdiction Spring Arbor is covered, has in a couple of cases broadly construed Title VII sex disrimination in this regard, it generally not the case that transgender individuals or transsexual individuals are covered under Title VII without a more direct nexus to traditional sex disrimination or sexual stereotyping.
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