Ninth Circuit Holds Catholic School Teacher fired after Cancer Diagnosis Can Sue School for Discrimination, Not Barred by First Amendment

On December 17, 2018, the Ninth Circuit reversed a decision by the United States District Court for the Central District of California in Biel v. St. James School, A Corp., et al., Case No. 17-55180.

Plaintiff Kristen Biel, a fifth-grade teacher for Defendant, filed a claim under the Americans with Disabilities Act (“ADA”) when St. James Catholic School fired her after she told the School that she had breast cancer and needed time off from work to undergo chemotherapy. The district court dismissed Biel’s claims at summary judgment—holding that her lawsuit under the ADA was barred by the First Amendment’s “ministerial exception.” After her case was dismissed, Plaintiff Biel appealed to the Ninth Circuit.

In November 2013, Plaintiff Biel received a positive teaching evaluation from the School’s principal, noting that Biel was “very good” at promoting a safe and caring learning environment for her students. Less than six months after that evaluation, Biel was diagnosed with breast cancer. When she disclosed her diagnosis to the School’s administrators, she was told her employment contract would not be renewed because “it was not fair … to have two teachers for the children during the school year.”

Biel sued St. James in the United States District Court for the Central District of California, alleging that her termination violated the ADA, which prohibits employment discrimination based on disability. St. James moved for summary judgment, arguing that the First Amendment’s ministerial exception to generally applicable employment laws barred Biel’s ADA claims. The district court agreed and granted summary judgment for St. James.

On appeal, the Ninth Circuit reversed, finding that the total circumstances of Biel’s employment did not qualify her as a minister for the purposes of the ministerial exception.

In Hosanna-Tabor, the only case where the U.S. Supreme Court has applied the ministerial exception, the Court focused on four major considerations to determine if the ministerial exception applied: (1) whether the employer held the employee out as a minister, (2) whether the employee’s title reflected ministerial substance and training, (3) whether the employee held herself out as a minister, and (4) whether the employee’s job duties included “important religious functions.” Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 192 (2012).

In Hosanna-Tabor, Cheryl Perich, a teacher for a Lutheran school, was fired after she was diagnosed with narcolepsy and brought ADA claims against the school. The Supreme Court found that the ministerial exception did apply because Perich was more than just a teacher in the Lutheran school. She had a special title of “Minister of Religion” conferred to her by the congregation and distinct from other teachers. Perich led her students in daily prayer, and she also led the school wide mass that occurred twice each school year. Perich claimed a federal tax benefit for employees earning compensation in the "exercise of the ministry" on her tax returns, and she also had to complete extensive religion training in the Lutheran doctrine that took her six years to complete in order to be a commissioned minister. In light of these circumstances, the Supreme Court held that Perish was a minister covered by the ministerial exception.

The Ninth Circuit found that Biel, by contrast, had no sort of credentials, training or titles like Perich. Biel was Catholic, but St. James Catholic School did not require its employees to be Catholic to teach. Biel did not have any extensive training in religion or the Catholic pedagogy. Biel taught all fifth-grade subjects, including a thirty-minute religion class using a workbook on the Catholic faith prescribed by the school administrators. And while Biel joined her students in prayer twice daily, Biel did not lead her students in prayer, and her only job duties at the School’s monthly mass were to keep her class orderly and quiet.

After a holistic examination of her training and duties demonstrated that Biel had a limited role in her student’s spiritual lives, the Ninth Circuit held the ministerial exception did not apply, reversing and remanding her case back to the district court. Biel’s lawyer, Andrew Pletcher, said Biel is still struggling with cancer but is delighted by the Ninth Circuit's ruling.

The U.S. Supreme Court Exploits the First Amendment to Endorse Public Union “Free Riders”

by DeCarol Davis and Eduard Meleshinsky

With its decision yesterday in Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466 (U.S. June 27, 2018), the U.S. Supreme Court marches forward in its sweeping campaign to erode workers’ rights to engage in protected concerted activity. See, e.g., Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018) (holding that an arbitration agreement can bind an employee to individual arbitration and thereby prevent that worker from participating in class or collective action) (read our analysis of the decision here). In a 5-4 opinion, authored by Justice Alito, with Justice Kagan dissenting (joined by Justices Ginsburg, Breyer, and Sotomayor), the Court held that state government workers who choose not to join a union do not have to pay a share of union dues for covering the cost of negotiating and administering collective bargaining agreements. The Court’s decision overrules its long-standing precedent in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which required non-union employees to pay a portion of union dues, known as “agency fees,” to cover the out-of-pocket costs of collective bargaining and prevent “free riders” (i.e., workers who get the benefits of a union contract, like higher wages, better healthcare insurance, and competitive retirement plans without paying for it). Such mandatory agency fees do not fund any type of political campaigning by the union.

In Janus, the Supreme Court found that an Illinois law, which required public employees benefiting from union-organized collective bargaining agreements, to pay agency fees violated non-members’ free speech rights. Janus, No. 16-1466, at *1. The Court majority held that unions, in their “political and ideological projects” (including negotiating for better working conditions) may come at odds with a worker’s beliefs, and thereby violate a worker’s First Amendment rights. Id. The majority reasoned that requiring public employees to pay union dues would be “compelling” the worker to “subsidize” the speech of other private third party in violation of First Amendment. Id. at *9.

Justice Kagan, joined by the three other dissenting Justices, eloquently spoke to the majority’s radical departure from the Court’s established precedent:

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special justification,” (citation omitted)—but the majority offers nothing like that here. In contrast to the vigor of its attack on Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Abood’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to. Id. at **26-27.

The First Amendment in 1977 was the same as it is today, and yet, the Supreme Court again tramples on long-established American public policy favoring workplace peace and shared prosperity through collective bargaining between labor and management—one of few remaining mechanisms for workers to stand toe-to-toe with employers. The Court, despite its “pull-your-boots-up” philosophy, now gives “free-riders” the right to reap the fruits of hard-fought collective bargaining without chipping in anything.

Even conservative legal experts like Eugene Volokh agree that the majority’s opinion fails to reckon with the many ways in which “the First Amendment ‘simply do[es] not guarantee that one’s hard-earned dollars will never be spent on speech one disapproves of.’” Dissent at p. 15; Eugene Volokh, Why There’s No First Amendment Problem With Compulsory Union Agency Fees, (published Jan. 29, 2018), available at: https://reason.com/volokh/2018/01/19/why-theres-no-first-amendment-problem-wi. Were it otherwise, the Court would be compelled to upend many other well-entrenched arrangements where the government requires mandatory fees to subsidize various activities it believes serve an important governmental interest but which individuals may oppose, such as mandatory bar dues for attorneys, certain administrative fees for public university students, and, more generally, taxes spent on controversial governmental activities.

The Janus opinion is another example of the Roberts Court “turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” Slip. Op., Dissent at 27. Working people should remember this decision as they head to the ballot box this November.

A Close Call for Unions and the Employees they Represent at the U.S. Supreme Court

Public-sector unions will live to fight another day after the U.S. Supreme Court issued a 4-4 split decision in Friedrichs v. California Teachers Association on Tuesday. The ruling—which comprised of a single sentence and has no precedential value outside the Ninth Circuit—is most notable for what it did not do: that is, provide a means to gut unions for both public- and private-sector employees nationwide.

Friedrichs challenged a long-standing rule, first applied to public-sector unions in the 1977 Supreme Court case Abood v. Detroit Board of Education, 431 U.S. 209, 235-36. In Abood, the Court determined that public sector unions could require non-members to pay an agency fee (also known as a “fair share fee”)  to support the union’s collective-bargaining and-grievance adjustment activities from which all employees would benefit regardless of their union membership. Id. at 225-31. The Court distinguished these expenditures from a union’s political spending, for which a non-member could not be compelled to contribute to the union under the First Amendment. Id. at 232-36. The Abood decision in turn relied on earlier decisions by the high court which affirmed the right of private-sector unions to require all employees within a bargaining unit to contribute to non-political union expenditures. See Machinists v. Street, 367 U.S. 740 (1961); Railway Employees’ Department v. Hanson, 351 U.S. 225 (1956).

As a practical matter, a union’s ability to ensure that all employees pay their fair share of collective bargaining expenses is essential to its survival. A union bargains on behalf of all employees, regardless of whether those employees are members. Without the ability to require fair share fees, a union faces a collective action problem: why would an individual employee pay union dues when that employee can reap all of the benefits of the union’s collective bargaining efforts for free?

The necessity of fair share fees to the survival of unions has made them an enticing target for conservative efforts to attack unions and worker protections generally. The Roberts Court (or rather, its five most conservative members) signaled its eagerness to overturn the nearly forty-year old Abood precedent in its 2014 decision Harris v. Quinn, in which Justice Alito’s majority opinion criticized Abood extensively and declined to extend its holding to home health care workers paid by the state of Illinois. See Harris v. Quinn, 134 S.Ct. 2618 (2014). After Harris, the conservative advocacy group the Center for Individual Rights took the bait and brought the Friedrichs case with the goal of eliminating fair share fees from public-sector unions. Then, after the oral argument in Friedrichs this January, those same five justices from the Harris majority appeared primed to overrule Abood, notwithstanding the consequences for unions nationwide and the millions of workers they represent. 

Thus, little doubt exists that were Justice Scalia still on the Court, Friedrichs would have crippled public-sector unions and provided a blueprint to apply the same reasoning to target private-sector unions as well. That decision would have paralyzed the collective bargaining rights of teachers, firefighters, healthcare workers, and countless other public employees in the 23 states that allow fair share fees.

Unions and workers had a good day on Tuesday, but the fight continues. The Center for Individual Rights has already announced its intent to file a petition for rehearing of Friedrichs in light of the split decision. The future of public-sector employee unions thus rests in the hands of the Supreme Court’s next member.