Cases Raising Employment Law Issues on Court’s Docket

With an emphasis on practical strategies to improve productivity and performance, and limit potential liabilities, Bulletin to Management™ concisely analyzes new developments in employment and human resources management.

By Kevin P. McGowan

The U.S. Supreme Court opened its new term Oct. 3 with five employment-related cases on the docket, down slightly from the eight employment cases with which it began its October 2010 term.

The justices heard oral arguments Oct. 5 in a case concerning the existence and scope of a “ministerial exception” to employment discrimination claims against religious schools. Among other employment-related cases that will be considered by the justices is one involving whether a Family and Medical Leave Act provision can be constitutionally applied against state employers.

The court's 2010-2011 term produced the Wal-Mart sex discrimination class action decision; retaliation rulings under Title VII of the 1964 Civil Rights Act and the Fair Labor Standards Act; recognition of “cat's paw” liability in discrimination cases; and rejection of a federal preemption challenge to an Arizona immigration law. The court's current docket does not appear to include a case with comparable potential impact.

But the justices could grant review of employment-related cases more broadly as the term proceeds. A Sept. 28 petition filed by the Department of Justice is one of three requesting review of an appeals court decision invalidating a key provision of the federal health care overhaul law (Florida v. HHS , U.S., No. 11-398, filed 9/28/11; 62 BTM 316, 10/4/11).

‘Ministerial Exception' Case

The court heard oral argument on whether the “ministerial exception” bars a former religious school teacher's claim that she was terminated in violation of the Americans with Disabilities Act (Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, U.S., No. 10-553).

A federal trial court barred the Equal Employment Opportunity Commission's ADA retaliation lawsuit against the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., reasoning that Cheryl Perich's job duties were part of the church's First Amendment-protected religious mission.

However, the U.S. Court of Appeals for the Sixth Circuit reinstated the case, finding that since Perich spent most of her time teaching secular subjects, she did not fall within the ministerial exception (597 F.3d 769, 22 AD Cases 1697 (6th Cir. 2010; 61 BTM 94, 3/23/10).

Arguing for Hosanna-Tabor, Douglas Laycock of the University of Virginia law school asked the justices to reverse the Sixth Circuit's decision.

Several justices questioned who is a “minister” beyond ordained clergy for purposes of the exception. Laycock said any religious school teacher who instructs students in the faith should be considered a “minister" and that Perich's additional status as a “called" teacher makes hers an “easy case."

Representing EEOC, Assistant to the Solicitor General Leondra R. Kruger said the government's interest in seeing “civil wrongs” addressed in “civil courts” should trump the church school's asserted interests in this case, Kruger argued.

But some justices expressed concern that a pretext inquiry into the school's real motivation for firing Perich would inevitably entangle a lower court in weighing religious questions such as whether Lutherans really enforce a religious tenet requiring internal resolution of disputes and whether Perich was aware of that alleged belief.

Arguing for Perich, Walter Dellinger of O'Melveny & Myers in Washington, D.C., said Hosanna-Tabor's suggested rule would erect a “categorical” bar against discrimination or retaliation claims by virtually all teachers at religious schools.

FMLA's Application

The court will consider whether the FMLA's “self-care” provision can constitutionally be applied to state employers (Coleman v. Maryland Court of Appeals, No. 10-1016).

The Supreme Court has ruled previously in Nevada Department of Human Resources v. Hibbs 538 U.S. 721, 8 WH Cases2d 1221 (2003)) that Congress validly abrogate the states' 11th Amendment immunity from suits for damages when it enacted the FMLA provision allowing eligible state employees to take unpaid leave to care for their spouses, children, or other immediate family members.

The Hibbs court reasoned that Congress intended to eliminate sex discrimination when it passed the FMLA family-care provision and therefore it was a valid exercise of congressional power under Section 5 of the 14th Amendment to enforce the equal protection clause.

Rejecting former Maryland employee Daniel Coleman's FMLA claim, however, the Fourth Circuit ruled the 11th Amendment does bar FMLA claims against a state employer based on an employee's need to care for himself (626 F.3d 187, 110 FEP Cases 1217 (4th Cir. 2010)).

The appeals court distinguished Hibbs, saying the self-care provision could not be based on Section 5 of the 14th Amendment, as Congress was not concerned with potential sex discrimination in the denial of leave to care for one's own illness. Rather, the Fourth Circuit said Congress was concerned with alleviating the economic effects on employees and their families of job loss due to an employee's illness and with protecting employees against discrimination based on their own serious health concerns.

By Kevin P. McGowan

Full text of the briefs in Hosanna-Tabor v. EEOC is available at,
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Full text of Coleman's brief is available at