Members of Congress would be held personally liable for sexual harassment and retaliation settlements, requiring them to reimburse the Treasury.

If tech companies really want to be cutting-edge, they should get rid of the policy in all employment-related disputes.

Thousands of Google employees around the world staged a mass walkout yesterday in protest of alleged sexual harassment and discrimination within the tech giant, reports CNN.javascript:mctmp(0); The demonstrations, dubbed “Google Walkout,” follow an outcry over a New York Times investigation that detailed years of sexual harassment allegations, multimillion-dollar severance packages for accused executives, and a lack of transparency over the cases. Walk-outs took place at 11:10am for different time zones around the world with the protests starting in Asia and continuing west through Europe to the United States. The organisers are demanding that Google make five concrete changes to its company police, which include Google committing to equal pay and opportunity, transparent data on the gender, race and ethnicity compensation gap, a publicly disclosed sexual harassment report and “an end to forced arbitration in cases of harassment and inequity”. The fifth demand asks to elevate the Chief Diversity Officer to answer directly to the CEO and make recommendations to the Board of Directors. They are also requesting that an employee representative be appointed to the Board.

Google CEO Sundar Pichai has voiced his support for the walkouts, stating, “We let Googlers know that we are aware of the activities planned for Thursday and that employees will have the support they need if they wish to participate.”

Google Inc Chief Executive Sundar Pichai said on Thursday the company had fired 48 employees for sexual harassment over the past two years.

By Marjorie Johnson, J.D.

Suspicious timing and inconsistent statements created a triable issue as to whether an employee was terminated in retaliation for filing an internal complaint against a sales manager who had sexually harassed a subordinate, and not because she had taken pictures of a vendor’s intoxicated CEO while at an offsite sales meeting, the Seventh Circuit ruled in reversing the district court’s dismissal of her Title VII retaliation claim on summary judgment. However, the employer’s more favorable treatment of the sexually harassing manager, who was also fired but received a substantial severance, did not support her showing of pretext since he was not similarly situated (Donley v. Stryker Sales Corp., October 15, 2018, Hamilton, D.).

Sexual harassment complaint. The employee, a clinical manager for a medical equipment manufacturer and retailer, learned from a coworker in June 2014 that a regional sales manager had sexually harassed a subordinate. She filed an internal complaint with the HR director, prompting an investigation that resulted in the manager’s termination. He also received a substantial severance package.

Investigated for earlier misconduct. In August 2014, just after the manager’s termination, the company began investigating the employee for alleged misconduct during a team meeting that had taken place six weeks earlier in Vail, Colorado. At the team meeting, she purportedly took pictures of a vendor’s female CEO in an intoxicated state and shared the photos with coworkers. During the investigation, she denied taking any “compromising” photos of the CEO and claimed that she had escorted her to her hotel room out of concern for her safety.

Who knew about what, when? The parties disputed exactly when the photos first came to the attention of the HR director and the employee’s supervisor. The employee said she showed them to her supervisor at the hotel bar on the night she took them. The company’s written response to her EEOC charge stated that she showed them to the supervisor, that he was “unamused,” and that he told her to delete the photos.

In his deposition, however, the supervisor denied that he saw the photos in Vail and instead testified that he heard about them later on. He also testified that he told the HR director about them before the employee’s investigation. In contrast, the HR director claimed that she first learned about them during an exit interview with a departing employee who complained about the plaintiff’s unprofessionalism.

Fired with no severance. In any event, the HR director conferred with the supervisor over the investigation’s results, and they purportedly decided that she should be fired because taking photographs of a valued partner while intoxicated was unacceptable. The termination letter stated that the employee had engaged in “inappropriate conduct and poor judgment” and violated the company’s policies. Unlike the sales manager fired for sexual harassment, she did not receive severance, however.

District court grants SJ. Granting the employer’s motion for summary judgment, the district court concluded that the employee was undisputedly terminated “because of her own drunken conduct in Vail, [company] policies, and its valued relationship with the CEO.” The court deemed it irrelevant when her supervisor learned about the photos since the decision to fire her was made before he knew about her protected activity. Moreover, she was not directly comparable to the fired sales manager who had received a severance package.

Suspicious timeliness, inconsistencies. Reviving the employee’s claim, the Seventh Circuit held that a reasonable jury could find that she was fired in retaliation for her protected Title VII activity since her timeline—which was supported by the record—exposed “inconsistencies and contradictions” between the HR director’s and her supervisor’s accounts of why the company began the investigation that ended with her discharge. A reasonable jury could interpret the suspicious timing as evidence that one or both decisionmakers initially found her actions in the Vail incident to be tolerable, and they decided only later—after her internal complaint—to use that incident as a pretext to fire her for retaliatory reasons.

Contradictory statement to EEOC. The appeals court squarely rejected the employer’s assertion that the EEOC statement should not be admissible as evidence against it, pointing out that “an employer’s shifting factual accounts and explanations for an adverse employment decision can often support a reasonable inference that the facts are in dispute and that an employer’s stated reason was not the real reason for its decision.” The court also rejected the company’s contention that the timing of its investigation into her misconduct was immaterial since her supervisor was unaware of her sexual harassment complaint and therefore could not have fired her with retaliatory animus. This argument failed to acknowledge the involvement of the HR director, who appeared to have launched the investigation into the employee’s alleged misconduct about a day after resolving the sexual harassment complaint.

Jury to decide who to believe. The HR director also drafted the employee’s termination letter after consulting with the supervisor about the investigation. Therefore, even if the supervisor did not know about the sexual harassment complaint, the HR director did, and she played a meaningful role in the decision to fire the employee. The dispute over when the HR director learned about the employee’s actions in Vail might therefore help convince a reasonable jury that she harbored retaliatory animus.

Harassing manager not similarly situated. However, the employee could not rely on the more favorable treatment of the fired sales manager to show pretext. He reported to a different supervisor, occupied a more senior position, and was subject to different standards. Therefore, without additional information about the nature and circumstances of the sexual-harassment complaint, the outcome of the internal investigation, and other mitigating and aggravating factors, the Seventh Circuit could not say that he was similarly situated.

By Pamela Wolf, J.D.

Make no mistake: The EEOC is tuned into the #MeToo movement. The agency is apparently taking on the Florida State Senate for its alleged role in permitting and failing to correct a sexually hostile environment that it either knew or should have known about.

But the Florida legislative body is fighting back. In a lawsuit filed on October 9, the Florida Senate is challenging the EEOC’s authority to prosecute an administrative action for sexual harassment and retaliation allegations leveled against the Florida Legislature by a senate aide, asserting that the administrative proceedings violate the Florida Senate’s sovereign and constitutional rights.

Complaint made to senate. The aide previously filed a complaint under state senate rules accusing a former senator of sexual harassment, according to the legislators’ complaint. The claim, which was independently investigated, resulted in a probable cause finding and recommendations for sanctions.

The special master who conducted the investigation also wrote: “The allegations of quid pro quo conduct (physical contact or sexual intimacy in exchange for support of legislative initiatives) made by a witness other than Complainant, and seemingly confirmed in text messages from Respondent, appear to violate ethics rules, and may violate laws prohibiting public corruption.” He recommended that these allegations be referred to law enforcement for further investigation. “An internal investigation pursuant to Senate Rules, referral to the Florida Commission on Ethics, and/or some other appropriate mechanism of investigation of the alleged ethics violations is also recommended,” he said.

The former senator resigned and gave up gubernatorial aspirations after the report on the investigation and the resulting probable cause finding were released. A state investigation subsequently determined there was not enough evidence to warrant criminal charges.

Turning to the EEOC. The senate aide, who still works in the state legislature, later turned to the EEOC, alleging claims under the Florida Civil Rights Act and Title VII. The EEOC filed an amended charge so that it could be pursued under the Government Employee Rights Act of 1991. GERA extends certain rights and remedies under Title VII to particular individuals who serve state-level elected officials.

“The Senate knew, or should have known, of the unlawful conduct of Senator [alleged harasser] and did not take any steps to prevent his abuses and protect its employees,” according to the EEOC charge filed by the senate aide (as quoted in the senate’s complaint).

As outlined in the complaint, the matter is now in front of an administrative law judge who has not been very receptive to the state senate’s arguments that the suit should be dismissed or stayed on various procedural, sovereignty, and immunity grounds.

Seeking relief in federal court. The Florida Senate has now turned to a federal court in the Northern District of Florida for relief, filing a two-count complaint alleging an unconstitutional breach of sovereign immunity and an unconstitutional deprivation of the right to a jury trial against the federal government, the EEOC, and the EEOC’s Commissioners.

The Florida Senate alleges that in its legislative body, neither the senate aide’s allegations nor the report of the special master “made any allegations or findings of sexual harassment, retaliation, adverse employment action, or any other conduct by the Florida Senate or Senate leadership. Moreover, the senate aide has remained employed as a Florida Senate staffer with full salary, benefits, and raises.”

The complaint seeks declaratory relief that GERA does not validly abrogate the Florida Senate’s sovereign immunity as to this case, and that the Seventh Amendment right to a jury trial applies to a claim for money damages under GERA. The Florida Senate is also asking the court for an injunction prohibiting further prosecution of the administrative law proceeding and ordering its dismissal with prejudice due to the Florida Senate’s sovereign immunity.

Materials and guidance on New York’s sexual harassment prevention laws have now been finalized, according to Governor Andrew M. Cuomo. This follows a public comment period that began August 23, when draft materials and guidance were first published on a new website along with a request for public feedback. The state received and reviewed hundreds of constructive and substantive comments from a wide range of individuals, advocates, industries, worker groups, employers and business organizations.

According to Governor Cuomo, “These common sense policies will help employees and employers know their rights and responsibilities and help enforce the strongest anti-sexual harassment package in the nation.”

Sexual harassment package. On April 12, Governor Cuomo signed into law the FY 2019 New York State Budget, which includes the comprehensive sexual harassment package. This package was a signature proposal from his 2018 Women’s Agenda for New York: Equal Rights, Equal Opportunity.

The new law:

Prohibits employers from using a mandatory arbitration provision in an employment contract in relation to sexual harassment;
Requires officers and employees of the state or of any public entity to reimburse the state for any state or public payment made upon a judgment of intentional wrongdoing related to sexual harassment;
Ensures that nondisclosure agreements can only be used when the condition of confidentiality is the explicit preference of the victim; and
Amends the Human Rights Law to protect contractors, subcontractors, vendors, consultants or others providing services in the workplace from sexual harassment in the workplace.
Establishes minimum standards for sexual harassment prevention policies and training. All employers operating in New York State are required to either adopt and use the State’s model policy and training as-is, or to use the models as a basis to establish their own policy and training. All employees working in New York State must receive sexual harassment training by or before October 9, 2019.

New items. Updated items released on October 1:

Updated website with resources for employers, employees, state contractors and targets of sexual harassment
Updated model sexual harassment prevention policy
Updated model sexual harassment complaint form
Updated model training (script book and PowerPoint presentation)
Updated minimum standards for sexual harassment prevention policies and trainings
Updated FAQs

Employer and employee toolkits are available, as well as a sexual harassment prevention policy poster on the website at https://www.ny.gov/combating-sexual-harassment-workplace/employers.

The training and policy materials are being made available in Word and PowerPoint, where applicable, to allow for employer customization. Additionally, the State will be translating these materials into Spanish, Chinese, Korean, Russian, Italian, Polish, and Haitian-Creole, and creating a video training, all of which will be released in the near future online on the Combating Sexual Harassment in the Workplace website.

State-provided training. The state will offer both in-person and webinar training sessions to help employers understand the new requirements. A schedule of these events will also be announced in the near future on the website, where visitors may add their name to the list to receive future updates about the state’s sexual harassment prevention policy.

As with many other states following events in the news, the California state legislature has aggressively been passing a slew of bills to prevent sexual harassment in the workplace, including within the state legislature itself.

California Governor Edmund G. Brown Jr. signed a package of bills on September 30 aimed at protecting and supporting women, children, and working families across California, including many addressing sexual harassment and discrimination in the workplace.

In addition to prohibiting sexual harassment and discrimination, the bills provide new sexual harassment training requirements; address professional liability, settlement agreements, and enforcement; as well as strengthen whistleblower protections by adding new protections for those working in the state Legislature.

Prohibited discrimination and harassment

Under California’s Fair Employment and Housing Act (FEHA), it is an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment. FEHA also makes harassment by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.

Prohibited harassment includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.

Employers are required to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

Any type of harassment. Under the FEHA, an employer may be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action. Senate Bill 1300 would change the law to apply with respect to any type of harassment prohibited under the FEHA.

Bystander intervention training. The Act requires employers with 50 or more employees to provide at least two hours of training and education regarding sexual harassment to all supervisory employees within six months of their assumption of a supervisory position and once every two years. This bill would also authorize an employer to provide bystander intervention training to employees that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when such behaviors are observed. Training and education may include exercises to provide bystanders with skills and confidence to intervene and to provide resources to call upon for supporting their intervention.

Nondisparagement and nondisclosure agreements. Employers will be prohibited, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. The bill would provide that an agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.

In a civil action, a prevailing defendant would be prohibited from being rewarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

Evidentiary impact. In addition, new law is added to provide that a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if such conduct has unreasonably interfered with the person’s work performance or created an intimidating, hostile, or offensive working environment. The existence of a hostile work environment would depend on the totality of the circumstances; a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be considered relevant, circumstantial evidence of discrimination.

Enforcement

Under the FEHA, the Department of Fair Employment and Housing is responsible for receiving, investigating, conciliating, mediating, and prosecuting complaints alleging violations of civil rights. Senate Bill 224 makes the Department also responsible for the enforcement of sexual harassment claims. S.B. 224 also makes it an unlawful practice to deny or aid, incite, or conspire in the denial of rights of persons relating to sexual harassment.

Professional liability. In addition, Senate Bill 224 amends the Civil Code to provide that a person is liable in a cause of action for sexual harassment when a plaintiff proves certain elements where there is a business, service, or professional relationship between the plaintiff and a defendant, or where the defendant holds himself or herself out as being able to help the person establish a business, service, or professional relationship with the defendant or a third party. The bill would include an investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment.

Contracts, settlement agreements

Waiver of right of petition or free speech prohibited. Assembly Bill 3109 makes a provision in a contract or settlement agreement entered into on or after January 1, 2019, void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.

Nondisclosures and confidentiality agreements. California law prohibits a provision in a settlement agreement that prevents the disclosure of factual information relating to a civil action with a factual foundation establishing a cause of action for civil damages for certain sexual offenses. This law is amended by S.B. 820 to prohibit a provision in a settlement agreement that prevents the disclosure of factual information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, including workplace harassment or discrimination based on sex, that are filed in a civil or administrative action. A provision in a settlement agreement that prevents the disclosure of factual information related to the claim entered into on or after January 1, 2019, is void as a matter of law and against public policy.

An exception would be made to shield the identity of a claimant and facts that could lead to the discovery of the person’s identity if such provision is included within the settlement agreement at the claimant’s request.

Training

More mandatory training. The FEHA requires employers with 50 or more employees to provide at least two hours of training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within six months of their assumption of a supervisory position, and then every two years after that. This requirement is amended by Senate Bill 1343 to instead require an employer who employs five or more employees, including temporary or seasonal employees, to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and then once every two years after that.

Online training courses. The Department of Fair Employment and Housing will be required to develop or obtain one-hour and two-hour online training courses on the prevention of sexual harassment in the workplace and to post the courses on the Department’s Internet Web site. The bill would also require the department to make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the Department’s Internet Web site.

State legislature. A.B. 2055 requires state legislative ethics committees for each house to include in its required orientation course, which covers laws relating to ethical issues and lobbying, information on each house of the Legislature’s policies against harassment, including sexual harassment, in connection with lobbying issues. Each member and each designated employee of the Legislature must attend at least one course in each biennial session.

Minors in the entertainment industry. A.B. 2338 requires talent agencies to provide educational materials on sexual harassment prevention, retaliation, and reporting resources that include, at a minimum, components specified in the Department of Fair Employment and Housing’s Form 185. Licensees may provide training electronically, materials must comply with language requirements and be in the language the artist understands, and agencies must keep records for three years confirming that educational materials on sexual harassment prevention, retaliation, and reporting resources have been signed by the adult artist.

For minors working in the industry, prior to the issuance of a work permit, the parent or legal guardian of a minor between the ages of 14 and 17 must receive and complete training in sexual harassment prevention, retaliation, and reporting resources. Licensees must request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services.

As part of the application for license renewal, in order to establish that the requirements of this article are met, a licensee shall confirm to the Labor Commissioner that it has and will continue to make available educational materials to adult artists in compliance. Violators could be assessed civil penalties of $100 for each violation.

Law enforcement training. Under A.B. 2504, the Commission on Peace Officer Standards and Training is required to develop and implement a course of training regarding sexual orientation and gender identity minority groups in California. The course must be incorporated into the basic training requirements for law enforcement officers and dispatchers, including the terminology used to identify and describe sexual orientation and gender identity, and how to create an inclusive workplace within law enforcement for sexual orientation and gender identity minorities. The training would apply to law enforcement officers, administrators, executives, and dispatchers.

In-home support services. This new law is added to the Welfare and Institutions Code to require the State Department of Social Services, in consultation with interested stakeholders, to develop or otherwise identify standard educational material about sexual harassment and prevention to be made available to IHSS providers and recipients, and to develop or otherwise identify a proposed method for uniform data collection to identify the prevalence of sexual harassment in the program. The Department is to provide a copy of the educational material and proposed method of uniform data collection to the budget and policy committees of the state Legislature on or before September 30, 2019.

Whistleblower protections

New whistleblower protection law in California protects state legislative employees who call out sexual harassment and discrimination.

Whistleblower protections. Effective September 30, 2018, the “Legislative Discriminatory Harassment Retaliation Prevention Act,” enacted by S.B. 419, protects employees in the state legislature from being discharged, expelled, or otherwise discriminated against for opposing any practice prohibited under the California Fair Employment and Housing Act; for opposing any practice actionable under the Unruh Civil Rights Act or law relating to sexual harassment liability where there is a business, service or professional relationship between a plaintiff and defendant; or for filing a complaint, testifying, or assisting in any proceeding relating to a complaint of discriminatory harassment.

Retention period for complaints. In addition, the law requires each house of the state Legislature to implement a system to maintain a record of each discriminatory harassment complaint made to that house for a period of at least 12 years after the complaint is made.

Violators would be subject to a civil fine not to exceed $10,000, which would be in addition to any fine imposed under other state or federal law.

Enacted earlier this year on February 5, the “Legislative Employee Whistleblower Protection Act” was enacted by A.B. 403. This law prohibits a member of the Legislature or any legislative employee from using their position or influence to interfere with the right of a legislative employee to make a good-faith protected disclosure that a Member of the Legislature or a legislative employee has engaged in, or will engage in, activity that may constitute a violation of law, including sexual harassment, or a violation of a legislative standard of conduct. An entity that interferes with, or retaliates against, a legislative employee’s exercise of the right to make a protected disclosure would be subject to a civil penalty of $10,000 and imprisonment in county jail for a period not to exceed one year. S.B. 419 amends definitions under this Act.

Effective dates

Except where a specific date is noted, these measures become effective on January 1, 2019.

Vetoes.

Governor Brown also vetoed several other bills relating to harassment and discrimination:

A.B. 1867, relating to recordkeeping requirements of allegations of sexual harassment, citing an excessive expansion of time for retention as unwarranted;
A.B. 2713, which would have required the California Department of Human Resources and the Department of Fair Employment and Housing to create and make public annual reports on sexual harassment complaints in state departments, citing current management practices as sufficient in taking the necessary steps to assure a suitable working environment;
S.B. 1223, proposing the Department of Industrial Relations convene an advisory committee to recommend minimum standards for a harassment and discrimination prevention policy and training program in the construction industry, citing that such task would be better placed with the Department of Fair Employment and Housing, which is already charged with enforcing provisions relating to sexual harassment and enforcement;
A.B. 1870 would have extended deadlines for filing a complaint from one to three years, citing that current filing deadlines encourage prompt resolution while memories and evidence are fresh and ensure unwelcome behavior is promptly reported and halted;
A.B. 2079, related to janitorial workers, proposing sexual violence and harassment prevention training, citing regulations that were already in the process of being created for such training by the Labor Commissioner pursuant to the Property Service Worker Protection Act (A.B. 1978, L. 2016);
A.B. 3080, related to discrimination and enforcement, prohibiting an employee or job applicant from being required to waive his or her right to a judicial forum as a condition of employment or continued employment, citing recent court decisions relating to arbitration that would make the bill in violation of federal law;

A.B. 3081 would have created a new joint liability between labor contractors and client employers, prohibit retaliation, and establish a 30-day notice requirement, citing most of the provisions in the bill as contained in current law and would therefore be unnecessary.

By Kathleen Kapusta, J.D.

The ministerial exception does not categorically bar hostile work environment claims that do not seek relief for a tangible employment action, a federal court in Illinois declared, finding instead those types of claims must be evaluated on a case-by-case basis for excessive intrusion on the religious institution’s First Amendment rights. Under that analysis, because a gay ministerial employee’s Title VII claims of harassment based on sex, sexual orientation, and marital status would excessively entangle the government in religion—the Archdiocese claimed the alleged harassment reflected the pastor’s opposition in accord with Catholic doctrine to same sex marriage—they were dismissed. But there was no religious justification offered for the alleged disability discrimination and so his ADA hostile work environment claim survived (Demkovich v. St. Andrew the Apostle Parish, Calumet City, September 30, 2018, Chang, E.).

During his two years of employment as parish music director, the employee claimed the pastor knew he was gay and made discriminatory remarks such as referring to him and his partner as “bitches.” When the pastor learned he was planning to marry his partner, his abusive behavior increased, he made derogatory comments about the “fag wedding,” and four days after the marriage, he asked the employee to resign. The employee refused and was fired, purportedly because his marriage was “against the teachings of the Catholic church.”

First suit dismissed. The employee sued but the court, finding his discrimination and wrongful termination claims were barred by the First Amendment’s ministerial exception, dismissed his complaint. Modifying his claims to challenge the hostile work environment, rather than the firing itself, he filed the complaint at issue here, which rather than seeking relief for an adverse tangible employment action sought damages for the alleged discriminatory insults and remarks. The Archdiocese again argued that the claims were barred by the ministerial exception.

Hostile work environment. Because the employee conceded for purposes of the motion to dismiss that he was a minister under the ministerial exception, the issue was whether the exception bars claims for a hostile work environment—rather than for refusals-to-hire or for firings—under Title VII and the ADA. Observing that Hosana-Tabor, the Supreme Court’s most thorough case on the ministerial exception, dealt only with the question of a minister’s firing, the court examined appellate court authority before concluding that the question of whether the ministerial exception applies to claims that do not challenge tangible employment actions remains open in the Seventh Circuit.

Two extremes. Turning to the “two extremes of discrimination claims brought by employees against their religious employers,” the court noted that on one end of the spectrum the Supreme Court has made clear that the selection or retention of a minister is completely off-limits to the courts. Further, the court observed, the extension of the ministerial exception to claims that challenge tangible employment actions is consistent with the exception’s underlying rationale as those claims still intrude on a church’s internal governance of its minister’s employment duties. On the other end of the spectrum, however, whether the employer acted on a religious-based motive is examined for challenges brought by non-minister employees and there are limits to an employer’s invocation of a religious motive.

Excessive entanglement. “Where then,” the court asked, “should a minister’s challenge to a hostile work environment, with no challenge to a tangible employment action, fall on this spectrum?” Turning to two Ninth Circuit decisions addressing whether hostile work environment claims brought by ministerial employees are barred by the exception, the court observed that the upshot of these cases, as well as the many cases in which non-minister employees successfully bring claims so long as there is no excessive entanglement, is that federal courts have been able to evaluate, on a case-by-case basis, when an employee’s particular case would pose too much of an intrusion into the religious employer’s Free Exercise and Establishment Clause rights. “If a minister’s hostile-environment claim does not challenge a tangible employment action and does not pose excessive entanglement with the religious employer, then the ministerial exception should not apply,” said the court here.

Sex-based claims. As to the employee’s claims here, the court found that although the ministerial exception did not bar his hostile-environment claims based on sex, sexual orientation, and marital status to the extent he did not challenge a tangible employment action, litigation over these claims would excessively entangle the government in religion. The Catholic Church’s official opposition to gay marriage is commonly known and there was no reason to question the sincerity of the Archdiocese’s belief that the opposition was dictated by Church doctrine. This official opposition, said the court, “weighs as an excessive-entanglement concern in this case, because the harassing statements and conduct were motivated by an official Church position (or at least the Archdiocese would defend the case on those grounds).” And while regulating how the official opposition is expressed is not as directly intrusive, it comes close and must weigh in favor of barring the claim under the Religion Clauses, the court reasoned.

Other risks. Further, the employee’s status as a minister weighed in favor of more protection of the Church under the First Amendment as it has absolute say in who will be its ministers and the Archdiocese could very well assert that it has a heightened interest in opposing same-sex marriage amongst those who fulfill ministerial roles. “Either the court would have to accept that proposition as true (thus intensifying the intrusion in regulating how the opposition is conveyed to the Church’s ministers) or the parties would have to engage in intrusive discovery on the sincerity of that belief.”

In addition, the opposition to same-sex marriage could be litigated in other ways, discovery over these claims would likely take a prolonged period, and because the hostile-environment claim does not challenge a tangible employment action, the Archdiocese could seek to prove an affirmative defense, namely, that it took reasonable care to prevent or to correct harassment and the employee failed to take advantage of it preventive or corrective efforts. “All-in-all, there are too many circumstances—in this particular case for this particular set of claims—that would result in excessive entanglement with, and intrusion on, the Church’s religious doctrine to allow the claims based on sex, sexual orientation, and marital status to move forward.”

Disability discrimination. After assuming that the ADA provides for hostile work environment claims, the court found that the Archdiocese offered no religious explanation for the alleged disability discrimination—numerous comments about the weight of the employee, who suffered from diabetes and a metabolic syndrome. While the Archdiocese justified the comments as reflecting the pastor’s subjective views and/or evaluation of the employee’s fitness for his position as a minister, this simply was not a religious justification based on any Church doctrine or belief.

Also rejected was the Archdiocese’s assertion that the employee failed to adequately state a claim for relief. He alleged multiple instances of harassing statements by the pastor about his medical condition and his disability that made him feel “discriminated against” and “humiliated and belittled,” and that severely damaged his personal and professional reputation and caused his physical and mental health to suffer. This was sufficient to survive dismissal.

A new House report alleges that TSA, the federal agency in charge of securing U.S. airline travel, was plagued for years by bad bosses, sexual harassment, and coverups.