Whether your school is religious or secular, you can find yourself in court facing discrimination charges if you fire a faculty or staff member because she is pregnant—even if you have clear policies in your employee handbook addressing your school’s mission and expected behaviors. There have been several recent cases to make headlines, which have brought new attention to this matter. Yes, even in today’s world of heightened workplace sensitivity, discrimination cases continue to make headlines.
Just last year alone, five major discrimination cases affecting private schools made national headlines. Private Education Law Report published the following cases in their September 2013 issue.
- Southland Christian School in Florida was required to pay $47,500 in attorneys' fees to a former teacher on top of the $23,000 in lost pay a jury awarded her after concluding she was fired based on her pregnancy, not for breaching a religious precept by having sex before her wedding.
- A private child care organization, Adventures in Learning, agreed to pay $31,000 to settle their case. They were sued by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who was not allowed to work past her fourth month of pregnancy.
- In Pennsylvania, a federal judge dropped a retaliation claim from a pregnancy-bias suit against the Wyndham School because of a technical concern—the claim was re-filed.
- The University School of Milwaukee paid $37,500 to settle an EEOC suit on behalf of a teacher fired after the school learned she was pregnant.
- An Ohio jury awarded a teacher $171,000 against the Cincinnati Archdiocese. (The archdiocese has appealed.)
David Lopez, the Equal Employment Opportunity Commission’s general counsel, was quoted in February of 2012, “A few employers have forgotten, or never learned, that it’s against the law to discriminate against women because of pregnancy.” He continued by addressing the unlawful act of denying a pregnant woman the opportunity to sustain herself or her family based on stereotypical assumptions that she won’t be as dedicated to her employer as an employee who is not pregnant or a man. Such conduct violates the Pregnancy Discrimination Act, which prohibits gender discrimination in the workplace.
Title VII prohibits employment discrimination of the basis of race, color, religion, national origin, and sex. In 1978, Congress amended the title, including that discrimination of sex includes discrimination of pregnancy, childbirth, or related medical conditions. This law makes it illegal for an employer to treat someone who’s pregnant differently for all employment-related purposes, including qualifying for and receiving benefits. Simply stated, you must treat all employees the same—leave pregnancy out of the equation.
Let us repeat, whether your school is secular or religious, you are not allowed to discriminate against employees on the basis of pregnancy. However, religious schools do have two potential defenses—the ministerial exception and a valid policy relating to sex (conception) that can be proven isn’t simply a pretext for gender bias.
A ministerial exception protects religious employers against suits brought by an employee who's a minister of the faith. The Supreme Court ruled that a secular court can't decide on religious matters of a religious organization without violating the organization's First Amendment right to exercise religion. To be protected by ministerial exception, schools must prove that their teachers are ministerial employees. The courts define this as:
- A formal title: The church's "called" teachers were "commissioned ministers."
- The title has substance: "Called" teachers had to complete college-level religion courses, pass oral exams, be formally endorsed by the synod, and be elected by the congregation.
- Teacher's use of the title: The teacher claimed an IRS allowance only available to ministers.
- Religious job duties: The teacher taught students religion, led them in prayer, took them to the chapel, and occasionally led chapel services.
Read Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission for more insight.
However, Supreme Justice Clarence Thomas was quoted, "The questions whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of 'minister' through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the 'mainstream' or unpalatable to some.
It's clear that the conversation regarding discrimination in religious organizations including schools is far from over. There is still much to be heard from both sides. However, it's important to know what's unfolding now in the media and the court system so you can protect your school to the best of your capabilities.
Knowing the law is the first step to preventing discrimination claims—however, it's not enough. Here are a few tips to help keep your school and your employees safe from discrimination.
- Contact the nearest EEOC office and ask if they provide public outreach training or other resources that could help you and your administrative team understand the law.
- Provide training to your entire faculty and staff by a professional. Reach out to your school’s lawyer or HR Director for presentations that everyone could benefit from.
- Be aware of harassment issues concerning pregnant employees (as well as for all employees). Harassment takes many forms. Social media has opened a new door to possible harassment. Watch for possible posts that could be taken offensively, remarks from parents, and comments from other faculty and staff members. Your school’s environment should be comfortable for everyone—faculty, staff, students, and families.
- Have an open door policy that welcomes employees to come to you when they feel uncomfortable about an event or situation. By instilling respect and courtesy, the troubled employee might opt to come to you for resolution instead of involving a lawyer or the courts.
Additional ISM articles of interest
ISM Monthly Update for Human Resources Vol. 7 No. 7 EEOC Job Bias Charges Hit Record High in FY 2008, Agency Obtains $376 Million in Relief—FEDERAL NEWS
ISM Monthly Update for Risk Managers Vol. 3 No. 7 Risks That Keep You Up At Night
ISM Monthly Update for Business Officers Vol. 11 No. 8 Top Eight Employee Handbook Mistakes
Additional ISM articles of interest for Gold Consortium Members
I&P Vol. 34 No. 5 Student Discipline, Policies, and Risks
I&P Vol. 31 No. 6 The Top 12 Federal Employment and Benefits Laws Every School Administrator Should Know
