Many potential clients seek a silver bullet when it comes to the hiring process. They want to set up electronic application systems and implement pre-employment testing to objectively and efficiently screen applicants so they can hire the best candidates.
They want to optimize the process, to speed the days to hire-up. They want candidates fast. They want a paperless process and a filtering system to eliminate candidates that don’t match their requirements.
Unfortunately, not being sure of what you’re doing, and working with unwise counsel, is a minefield you do not want to find yourself in and the results could be downright explosive.
I recently did some preliminary research on Equal Employment Opportunity Commission (EEOC) cases that have headlined in the past several months, painting a damaging picture of some very prominent companies. The cases revolved around such factors as:
- Pre-employment testing
- Unlawful employment application questions
- Disability discrimination
In actuality, many organizations, even those with the best intentions, ask questions that can inadvertently result in disparate treatment across a broad spectrum of minority candidates. Organizations also rely on invalid forms of pre-employment testing as a screening tool, ones they may not aware might disqualify minority candidates at a higher rate than non-minorities.
As a rule, the organizations that I meet with are not looking to hurt anyone or prevent any person from working at their organization as long as they’re qualified for the position in question. Most not only recognize the benefits that diversity brings to their organization but also share a worldview that embraces all cultures and all people. Regrettably, however, what’s in their heart does not matter one whit to the attorneys and the EEOC who show up to investigate claims of discrimination.
It’s easy to assume that the EEOC focuses only on large corporate organizations, high-profile global entities, as evidenced in such headlines as:
- BMW to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit
- Target to Pay $2.8M to Upper-Level Applicants in EEOC Settlement
- United Airlines to Pay Over $1 Million to Settle Disability Lawsuit
On the contrary, there are many small to mid-sized organizations that are being dragged into court as well. For example:
- Stack Bros. to Pay $140,000 to Settle EEOC Age Discrimination and Retaliation Suit
- Texas Oil Field Services Company Pays $30,000 to Settle EEOC Retaliation Suit
- EEOC Sues Seymour Midwest for Age Discrimination
No organization is too small to escape the potential penalty of discrimination, whether intended or unintended. All it takes is one or more disgruntled workers or applicants.
What might surprise you is that the same risk exists for those working in the nonprofit, church, or ministry sectors—you are just as vulnerable to the consequences of poorly managed human resource practices as any profit-driven enterprise. No altruistic or religious influence will stand up in court as an adequate defense or mitigate damages against your organization. This is just a sampling:
- EEOC Sues United Bible Fellowship Ministries for Pregnancy Discrimination
- Inconsistencies in Termination Decision Wipe Out Good Samaritan Ministries Victory
- King’s Way Baptist Church Sued by EEOC for Retaliation
- Nonprofits, churches, and ministry organizations are generally subject to state and federal laws that prohibit employment discrimination.
What should you do?
Do what great organizations do, and invest in solid HR practices. A qualified HR staff is fully trained and capable of helping you navigate successfully through the practices that can prevent costly litigation and eliminate those practices that might be unintentionally discriminatory.
You need a comprehensive human resources connection that your HR staff can source for this kind of guidance. We’re the map to get you through this minefield.
But it’s not just about risk management. Superior HR practices generate superior job candidates.
Want to read more about the cases cited in this article? Find more information and source articles here.
Mark A. Griffin is founder and Chief Consultant at In His Name HR LLC. He has over 20 years of HR experience. In His Name HR helps organizations build high-performance Human Resource programs. Visit them at In HIS Name HR or Send Email
Supreme Court Upholds Workplace LGBTQ Protections
In case you haven’t already heard, the Supreme Court recently ruled, on the basis of Title VII, that discrimination against LGBTQ workers is prohibited.
According to the U.S. Equal Employment Opportunity Commission, “Title VII prohibits employment discrimination based on race, color, religion, sex and national origin.”
Some states, like California and New York, already had this ruling in place. However, the Supreme Court passed this ruling for all states.
You may wonder…
- How does this affect your church or nonprofit organization?
- What about religious colleges and camps?
- Are non-ministerial positions affected?
These are valid questions. What we know right now:
- Ministers and clergy are exempt from discrimination disputes that include sexual orientation or transgender issues.
- Religious employers, including colleges and camps, are also exempt. (However, this might change if the Supreme Court overturns the exemption.)
- Religious organizations are exempt, which includes non-ministerial positions.
4 Steps You Can Take to Preserve Your Protections
Although religious employers and organizations are exempt, there are four steps you should take to protect yourself from liability, should they arise.
1. Document Religious Beliefs
Document your religious beliefs regarding human sexuality and marriage in your statement of faith, bylaws, employee handbook, and staff lifestyle/covenant agreements.
Make sure your employees sign these agreements. Discuss these documents with your staff yearly to ensure everyone is on the same page.
When your beliefs are listed, in writing (specifically on human sexuality and marriage), it can be used as documentation to affirm your exemption, if needed.
2. Update Job Descriptions
Create job descriptions that detail the functions of each position in a religious establishment.
Think about how this position (even if it’s non-ministerial) plays a crucial role in the religious function of your organization.
To be safe, include spiritual requirements or your statement of faith in the posting of the description.
3. Be Clear Throughout the Hiring Process
Remain consistent through the hiring process. Be clear about the requirement that candidates align with your statement of faith.
Only accept applications where applicants share the same religious beliefs.
Continue to communicate your religious beliefs throughout the process of the hiring and onboarding process.
4. Consult a Legal Professional
If you’re unsure or just want to ensure all the i’s are dotted and the t’s crossed, consult a legal professional to assess any potential risks.
There are some great law firms that deal specifically with nonprofits and religious organizations. What we provide here does not constitute legal advice. Please read this disclaimer if you have any questions regarding the information here.
Two Recent Rulings That Support Religious Organizations
- Our Lady of Guadalupe School v. Morrissey-Berru
- James School v. Biel.
In both cases, two teachers at Catholic schools were not offered contract renewals. Both teachers filed discrimination claims in federal district court against their former employers. The court ruled that both schools were protected religious organizations, exempt from anti-discrimination employment laws.
Both teachers appealed to federal circuit court, which reversed the district court’s ruling in one case and denied petition for rehearing, and for rehearing en banc, in the second case.
The Issue at Hand:
Whether the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against their religious employer when the employee carries out important religious functions.
Important news for religious organizations. On July 8, 2020 (during the time of the writing of this post!), the U.S. Supreme Court consolidated both cases and, In Our Lady of Guadalupe School v. Morrissey-Berru, the justices held that employment discrimination suits by the teachers fired by Catholic elementary schools are barred by the First Amendment’s “ministerial exception.”
What if the exemptions change?
Some of these exemptions might be subject to change. There are still court cases, specifically regarding religious colleges, on whether teachers should be exempt from this ruling or not.
Depending on the outcome of these cases, the exemption on religious colleges might be overturned.
If this does happen, the atmosphere of many religious colleges would change. What might we do then?
A passage in the book of Romans offers us insight:
“Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, whoever rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.” (Romans 13:1–2 NIV)
This passage tells us that we should obey the law of the land, because it has been ordained by God.
But what if the law of the land goes against God’s law?
Does God’s law supersede the law of the land?
The Story of Shadrach, Meshach and Abednego
King Nebuchadnezzar issues a decree that “everyone who hears the sound of the horn, flute, zither, lyre, harp, pipe, and all kinds of music, must fall down and worship the image of gold that King Nebuchadnezzar has set up.” (Romans 3:5 NIV)
Shadrach, Meshach and Abednego were faithful Jews who followed the ways of the Lord. They refused to worship idols or other gods. Because of their disobedience to King Nebuchadnezzar, they were brought before him to undergo punishment.
To be thrown into a blazing furnace!
King Nebuchadnezzar gave them one more chance to obey him and bow down to the idol.
How did Shadrach, Meshach and Abednego respond?
“King Nebuchadnezzar, we do not need to defend ourselves before you in this matter. If we are thrown into the blazing furnace, the God we serve is able to deliver us from it, and He will deliver us from Your Majesty’s hand. But even if He does not, we want you to know, Your Majesty, that we will not serve your gods or worship the image of gold you have set up.” (Daniel 3:16-18 NIV)
Because of their unwillingness to bow to the idol, they were tied up and thrown into the furnace.
But the story doesn’t end there.
God rescues the three men of faith and they emerge unharmed.
If the law of the land conflicts with God’s law, we are instructed to follow God’s law.
There have been many points in history where Christians have had to follow God’s law rather than the law of the land. Many martyrs of the faith have demonstrated this. Though no one in any religious organization is likely to face losing their life, we most certainly do run the risk of losing rights, funding, access to resources, and lose our reputation in the broader community.
As the courts and culture continue to shift away from a historic Christian worldview, it may become more difficult to live out our faith. When faced with difficult situations, I find it easiest to revert to loving everyone. We can’t expect those who don’t align with biblical teaching to act as if they do. Be patient. We are called to love others and we should deal with these matters with grace.
That said, I pray you are encouraged and remember to maintain kindness when dealing with controversial topics such as this. We are facing ever-changing tumultuous times in the workplace. Our beliefs are being challenged and many are waning in their strength to support the gospel of Jesus Christ. Stay strong, and always remember that the truth will always remain the same, yesterday, today and tomorrow.
To learn more:
Also check out our Resources for Action Here
Mark Griffin is founder and chief consultant at In HIS Name HR LLC, and has over 25 years of HR experience.
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Is your organization unknowingly violating federal and state employment laws? If so, you’re not alone. Many unsuspecting professionals in both profit and nonprofit organizations manage via flawed human resource practices.
Why is being compliant with Equal Employment Opportunity Commission (EEOC) laws through proper HR practices important? Read the following cases to understand how organizations that thought they were doing things right discovered the hard way that they were not.
Large Company Cases
Target to pay $2.8M to upper-level applicants in EEOC settlement
Tests for upper-level jobs screened out blacks, Asians and women, EEOC says.
Target Corp. has agreed to pay $2.8 million to thousands of rejected job candidates for upper-level positions because tests they were given disproportionately screened out applicants based on their race or gender.
The payout was announced Monday by the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (EEOC) and will be disbursed among more than 3,000 people, said Julie Schmid, acting director for the agency in Minneapolis. Source
BMW to Pay $1.6 Million and Offer Jobs to Settle Federal Race Discrimination Lawsuit
GREENVILLE, S.C. – The U.S. District Court for the District of South Carolina today entered a consent decree ordering BMW Manufacturing Co., LLC (BMW) to pay $1.6 million and provide job opportunities to alleged victims of race discrimination as part of the resolution of a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit, filed by EEOC’s Charlotte District Office, alleged that BMW excluded African-American logistics workers from employment at a disproportionate rate when the company’s new logistics contractor applied BMW’s criminal conviction records guidelines to incumbent logistics employees. Source
United Airlines to Pay over $1 Million To Settle Disability Lawsuit
Supreme Court Lets Stand 7th Circuit Ruling That Reassignment Is Reasonable Accommodation
In a case that garnered nationwide attention, air transportation giant United Airlines Inc. has agreed to pay more than $1 million and implement changes to settle a federal disability lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).
The EEOC’s lawsuit charged that United’s competitive transfer policy violated the Americans with Disabilities Act (ADA). The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability, unless doing so would impose an undue hardship for the employer. By requiring workers with disabilities to compete for vacant positions for which they were qualified and which they needed in order to continue working, the company’s practice frequently prevented employees with disabilities from continuing employment with United, the EEOC said. Source
Small to Medium Sized Company Cases
Stack Bros. to Pay $140,000 to Settle EEOC Age Discrimination and Retaliation Suit
Employees Were Fired at Superior, Wis., Firm for Turning 62, Federal Agency Charged
MADISON, Wis. – Stack Bros. Mechanical Contractors, Inc. of Superior, Wis., a major heating and plumbing contractor in northern Wisconsin and northern Minnesota, will pay $140,000 and furnish other relief to settle an age discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.
According to EEOC’s suit, Stack Bros. discriminated against Randy Virta and Karen Kolodzeske by firing them when they turned 62 in 2014. Stack Bros. also retaliated against Kolodzeske for resisting its plans to fire her, EEOC alleged.
According to Julianne Bowman, director of the EEOC’s Chicago District, which includes Wisconsin, the agency’s pre-lawsuit investigation revealed that both Virta and Kolodzeske repeatedly warned Stack Bros.’ owner that his plan to fire them when they turned 62 was illegal. However, the owner refused to relent, and, after firing Virta, retaliated against Kolodzeske for her complaints by denying her a raise, suspending her without pay for two days and creating a hostile work environment while waiting for her to turn 62. Virta and Kolodzeske had worked for Stack Bros. for 16 and 25 years, respectively. Source
Texas Oil Field Services Company Pays $30,000 to Settle EEOC Retaliation Suit
Only Female Roustabout Fired for Reporting Sexual Harassment, Agency Charged
DALLAS – An Iraan, Texas oil field construction and services company will pay $30,000 and furnish other relief to settle a retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.
The EEOC’s suit, filed in U.S. District Court for the Western District of Texas, Pecos Division (4:14-CV-00073-DAE), charged that Garrison Contractors, Inc. fired its only female roustabout, Elma Garza, after she reported being sexually harassed on the job.
Hired by the company in January 2012 as a dump truck driver, Garza spent most of her employment as the company’s only female oil field worker. In this roustabout position, Garza worked side by side with her male co-workers fixing oil and gas leaks, digging ditches and cleaning heavy equipment. EEOC said that during her employment, Garza was subjected to lewd comments about female organs and sex. EEOC contends that when Garza reported the unwanted conduct, the company retaliated against her by terminating her.
Retaliation for reporting sexual harassment violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. Source
EEOC Sues Seymour Midwest for Age Discrimination
Agency Alleges Company Rejected an Applicant Older than Its Ideal Age
INDIANAPOLIS — Seymour Midwest, a Warsaw, Indiana, hand tool manufacturing company, violated federal law when it rejected a 58-year-old executive upon learning that he was older than the company’s ideal age range of 45-52, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.
According to EEOC’s suit, Seymour Midwest selected Steve Maril, from a pool of applicants for its senior vice president of sales position, to participate in an initial, email-based interview. In addition to questions about Maril’s experience and willingness to relocate, the company asked whether Maril was within its ideal age range of 45-52. When Seymour Midwest learned that Maril was older than its ideal age range, the company refused to hire him. Source
Church and Nonprofit Cases
EEOC Sues United Bible Fellowship Ministries for Pregnancy Discrimination
Organization’s Policy Requiring Pregnant Employees to Resign Is Discriminatory, Federal Agency Charges
HOUSTON – United Bible Fellowship Ministries, Inc., an organization that provides faith-based, community social services, violated federal law when it forced female employees out of their jobs because of their pregnancies, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.
According to the EEOC’s suit, Shamira Johnson worked as a resource technician, providing home care assistance to disabled individuals. Her duties included housecleaning, light laundering, administering medication, cooking and assisting with personal hygiene and grooming. United Bible terminated Johnson and other pregnant employees according to its “Pregnancy in the Workplace Policy” which required pregnant women in direct client-care positions to stop working during their pregnancy and reapply for a vacant job once they were no longer pregnant. Johnson did not return to work at United Bible after her pregnancy. The policy also unlawfully required applicants to disclose their pregnancy when applying for employment. Source
Inconsistencies in Termination Decision Wipe out Employer’s Victory
The U.S. Court of Appeals for the Seventh Circuit recently erased the victory of the Good Samaritan Ministries in an employee termination case, Ledbetter v. Good Samaritan Ministries, et al., — F.3d —- (7th Cir. Feb. 6, 2015), sending the case back to the trial court for further litigation.
The employee, Linzie Ledbetter (male), worked in a homeless shelter and food pantry. After a shelter resident complained about Ledbetter’s alleged threat to evict her, Ledbetter’s supervisors met with him and warned him that such behavior could result in disciplinary action, including termination. As a result, Ledbetter filed an EEOC charge—and later, a federal lawsuit—claiming race discrimination and retaliation under Title VII of the Civil Rights Act of 1964.
Shortly thereafter, Ledbetter filed a second EEOC charge for race discrimination and was subsequently warned again about his behavior toward the shelter residents and toward his co-workers. The day after his supervisors learned of the second EEOC charge, they fired Ledbetter, prompting a third EEOC charge and another lawsuit for retaliation.
In the trial court, Good Samaritan Ministries and its supervisors argued that Ledbetter’s termination was not prompted by the second EEOC charge, because they had decided to fire him five days before they even knew of the charge. The trial court agreed with their argument and granted summary judgment in their favor. Source
King’s Way Baptist Church Sued By EEOC for Retaliation
Kindergarten Teacher at Church’s Christian School Fired for Complaining About Sexual Harassment by Pastor, Federal Agency Charges
ATLANTA – The King’s Way Baptist Church, Inc. of Douglasville, Ga., violated federal law when it fired a kindergarten teacher at its King’s Way Christian School for reporting sexual harassment by its chief executive officer / pastor, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed recently.
According to the EEOC’s complaint, the pastor repeatedly subjected the teacher to sexual harassment by touching her inappropriately and made veiled threats to her if she should complain. When the teacher complained about the harassment, rather than taking measures to prevent any further harassment, King’s Way fired her.
These actions violate Title VII of the Civil Rights Act of 1964, which prohibits employers from firing, demoting, harassing or otherwise retaliating against employees because they complained to their employer about discrimination on the job. EEOC filed suit (EEOC v. The King’s Way Baptist Church, Inc., Civil Action No. 1:15-cv-03816) in U.S. District Court for the Northern District of Georgia, Atlanta Division after first attempting to reach a pre-litigation settlement through its conciliation process. EEOC is seeking back pay and compensatory and punitive damages for the former teacher, as well as injunctive relief designed to prevent future discrimination. Source
Miscellaneous Cases Of Interest
Employers Beware: EEOC Stepping Up Disability Discrimination Enforcement
On the heels of that news, 10 of the 22 lawsuits filed or settlements reached by the EEOC in May included allegations of disability discrimination. That’s a .455 batting average for the ADA, which is none too shabby in anyone’s book. Some of the issues addressed by the EEOC in the past month include:
A $72,500 settlement with an Akron, Ohio, medical transportation services company, which fired an EMT-paramedic with multiple sclerosis instead of providing additional leave as a reasonable accommodation.
A $110,000 settlement with Norfolk Southern Railway Company, which medically disqualified a track maintenance worker because of degenerative disc disease without doing an individualized assessment of whether he could perform the essential functions of his job.
A $90,000 settlement with a Tennessee nursing home facility, which terminated an HIV-positive nurse.
An $18,000 settlement with an Alabama athletic apparel retailer, which fired a legally blind sales clerk (who lost his full use of his sight while serving in the Army) without any consideration of whether an accommodation, such as a magnifying glass or a new computer monitor, might be reasonable. Source
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With our vast experiences spanning many industries we will create the HR programs that will drive excellence. Contact us today. You will be glad you did.
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