Muslims, Christians Bring Religious Discrimination Complaints Against Employers

Some religious people claim that serving or sharing space with LGBT people infringes their rights. But this post is not about them. It's about cases of people with religious values who face discrimination in the workplace—and these cases are interesting because employers are not trying to pick on people with religious values.

Take the October 2015 case, where the EEOC sued a trucking company that fired two Muslim drivers who cited religious values for refusing to drive loads with alcohol. They won a $240,000 judgment on the theory that the employer could have made a minimal accommodation by assigning those loads to anyone else.

More recently:  In March, an EEOC complaint was filed for 130 former Cargill Meat Solutions Corp. workers in Colorado. These Somali Muslims allege that their employer revoked a policy that permitted daily prayer. The case is pending.

And yesterday, the EEOC filed a lawsuit claiming a North Carolina hospital forced workers with religious objections to get flu shots and fired the ones who refused. The hospital fired a Christian intake clinician and a Muslim psychiatric technician.

The hospital appears to be in a poor posture because it allowed religious exemptions for flu shots. In these case, the workers applied after the deadline and the hospital was unwilling to grant an extension. The employer responds: “Mission Health plans to vigorously defend its flu policy, firm in our belief that our actions were consistent with best clinical practices.”

A Passover Thought: Is Trump a Pharoah?

This Passover, as Americans contemplate deporting 11 million aliens, it is good to think back on the Jewish experience in Egypt. God told Abraham: “Know for sure that your descendants will be strangers [living temporarily] in a land (Egypt) that is not theirs, where they will be enslaved and oppressed for four hundred years.” Jews are later told (Leviticus 19:33): “When a stranger resides with you in your land, you shall not do him wrong.” And this: “The stranger who resides with you shall be to you as the native among you, and you shall love him as yourself, for you were aliens in the land of Egypt; I am the Lord your God.” Clearly, the 11 million unlawful aliens in the U.S. are far from slaves—but just as clearly, we do not love them as we love ourselves. The exodus of Jews from Egypt was a liberation; the forced exile of 11 million unlawful aliens would be a cruel hardship, unbecoming a nation that reveres Judeo-Christian ideals.

OSHA, CDC Issue Zika Rules for Outdoor Workers

If presidential candidates ever debate actual policies, this would be a good start—today’s federal Zika rules, applicable to employers of outdoor workers. Republicans can make an argument that new rules raise costs, fail to address problems, and create more work for lawyers. Democrats can argue that employers are not proactive in protecting workers unless they are given specific legal duties, enforceable with sanctions.

Here, then is a summary, as reported by Reuters and Westlaw (quoting Julie Steenhuysen) :

Specifically, employers are asked to provide insect repellents and encourage their use, and to urge workers to wear clothing that protects their hands, arms, legs and other exposed areas. It also urges employers to consider providing workers with hats with mosquito netting to protect the face and neck.

The guidelines also call on employers to remove standing water from work sites to reduce mosquito breeding grounds. They also ask employers to consider reassigning female workers who are pregnant or may become pregnant and male workers whose partner is pregnant or may become pregnant to indoor jobs to reduce their risk of mosquito bites.

The guidelines encourage the workers themselves to wear insect repellant and protective clothing and to empty standing water on job sites.

For healthcare workers, the guidelines call for the use of standard infection control precautions to prevent exposure to Zika from infected blood.

For mosquito control workers, the guidelines urge them to follow the same precautions as for other outdoor jobs, and to use extra protective clothing when entering areas with dense mosquito populations. They also should follow standard precautions while handling insecticides.

Finally, for business travelers, the two agencies urge employers to allow flexibility in required travel to areas with active Zika transmission. In particular, it recommends delaying travel for pregnant women or those who may become pregnant or male workers with pregnant partners or partners who may become pregnant.

A Prince Who Gave a Free Concert to Deaf and Blind Students

If you missed it … the Washington Post is re-running a 1984 article that reports:

In a surprise, free performance at Gallaudet College, Prince, the rock star, dazzled and thrilled about 2,500 handicapped students from the campus and the city’s public schools yesterday afternoon.

There were blind students who could not see him. There were deaf students who could only feel the vibrations of the songs that have made Prince one of the country’s most popular performers. But none of that seemed to matter.

As Prince performed, often smiling and grinning as he played, hundreds of students raised their hands with thumbs, index and baby fingers extended and the two middle ones curved inward to tell him in sign language, “I love you.”

Penn State, Rutgers Profs Sue ASA over Israel Boycott

Several faculty members who belong to the American Studies Association have filed a lawsuit against their professional organization over ASA’s resolutions and actions to support a boycott of Israel. The lawsuit is framed along narrow lines, in order to improve its odds of winning. The gist is to claim that anti-Israel activists in ASA have acted outside the stated goals of the organization's official charter, which is filed with the IRS as a non-profit corporation.  Plaintiffs seek an injunction and damages in excess of $75,000. Details of the complaint are here.

No one will sue BDS activists for being hypocrites; but the point of the picture is that boycott activists should stop using Google for their boycotting activities after the Internet firm bought the most popular mapping app from an Israeli developer, Ehud Shabtai, for more than $1 billion. More fundamentally, BDS’s advocacy for boycotting Israeli universities is contrary to the academic norm of promoting the free exchange of ideas among scholars.

Can an Employer Require You to Be Happy?

A lawsuit was recently filed by employees of a health insurance company who allege that they were required to engage in coerced religious practices pursuant to a belief system called “Harnessing Happiness.” On a regular basis, management required employees to pray, hold hands in a prayer circle, read spiritual texts, light candles, burn incense to remove bad energy, listen to meditation music playing throughout the workplace, and use low lighting in their offices. The company had a spiritual consultant who advised that demons came through the overhead lights. Daily, the employees were required to select a card from a stack of “Universal Truths Cards,” to keep the card next to their computer monitors, and to “contemplate the truth” of the message on the card throughout the day. The cards covered topics such as Divinity, Destiny, Faith, Miracles, Sacredness, and Enlightenment.

The employees allege that these and other practices violated their right, under Title VII of the 1964 Civil Rights Act, to be free from religious discrimination. A likely defense will be that the company’s philosophy was not a religion. If you want to read the complaint for more details, click on this link.

California Teacher Tenure Lawsuit: Update

“Political language is designed to make lies sound truthful.” This quote, owing to George Orwell, befits the group that is challenging California’s teacher tenure laws (the group is called “Students Matter”). Their main argument: teacher tenure puts poor and minority students at a disproportionately greater risk of being taught by less effective instructors. The lawsuit was successful at trial, but was reversed on appeal yesterday.

Sure, students matter— greatly. But why blame tenured teachers for poor outcomes when they must deal with the fallout of a national 50% divorce rate, nightly shootings in low income neighborhoods, after-school hours filled with mindless TV watching, lead in water, sugary diets, pre-pubescent sexual behavior—not to mention mind-numbing testing and paperwork that tend to interfere with teaching?

If the lawsuit is successful and tenure is abolished, the occasional incompetent teacher will be fired—but many more good teachers will leave a profession that is shown little respect by the public and many parents. Turning teaching into a high-turnover profession is not the answer. 

Muslims Students, Jewish Faculty … A Good Story

During and after 9/11, several students (Muslim) and I (Jewish) talked informally about being there to support each other when, inevitably, voices of bigotry would threaten our communities. Over the past 15 years, we have kept in touch, from time to time. My students have become prominent professionals and loving parents. Last week, one of my former students (now friend) asked me if I could host her niece during a campus visit…. So, we have a lunch date for next week. This story is far from unusual on American campuses—indeed, it appears to be the norm. But it is never reported, so I pass this along with thanks to my students, in whom I take pride.

(Professor Mark R. Cohen delivering a lecture to a seminar room full of professors and graduate students at King Saud University, Riyadh, Saudi Arabia. (December 2014) 

Another Case of Workplace Defecation

Imagine having a supervisor who defecates in a sandwich bag and puts it in your lunch box. An employee named Bill Bailey was fired for insubordination. In fact, he went out of his way to avoid his supervisor, Aaron English—and in the process, he did not submit to direct supervision.

The back story? English had a long running reputation of pranking his co-workers. English admitted in a legal proceeding that he shot workers with a “potato gun” made out of PVC pipe, and detonated pipe bombs very close to his workers. Some of the bombs were set to explode when his co-workers got into a work truck and turned the ignition switch on.

Bailey testified that in one instance, a bomb exploded with enough force to buckle the hood of a truck, and the explosion damaged his right ear.

The most offensive prank was pooping in bags and sneaking the “joke” into employee lunch boxes. Bailey was fired shortly after he injured his back at work. At that point, his employer argued that Bailey caused his own termination, and moved to deny worker compensation benefits to Bailey.

Ruling for the employee, the administrative law judge said:  “Considering the totality of the evidence, the ALJ  finds that Claimant did not precipitate the employment termination by a volitional act, which he would reasonably expect to result in the loss of employment. This finding is supported by Employer’s … tolerance of far more egregious behavior from other employees.”

The news article is reported in Grand Junction Colorado’s Daily Sentinel, here.

Thanks to my former student, JA, who brought this news to my attention. And thanks to my former student, GD, for bringing a workplace defecation case to my attention in this matter: here. 

Uber Taxes and Employment Taxes: How They Differ

How does Uber provide such a cost-competitive business model for giving people rides? Part of the reason is they have a clear tax advantage over taxis, shuttles, buses, and trains that employ drivers, engineers, and the like.

The picture for this post shows two tax forms that Uber issues drivers. A 1099-K shows payments related to driving people—fares, tolls, split fares, and safe ride fees, for example. Uber also pays referral fees. These are reported separately on a 1099 form.

Tips? Uber tells drivers not to accept first offers for tips, a curious policy that suggests that some tipping conversations go to a second stage and beyond. One survey finds that 10% of riders pay a cash tip to drivers in California. That money escapes taxation unless the driver reports it.

How does this arrangement differ from a bus, taxi or train operator/driver? 

That person is an employee. On the employer side, employers must deposit and report employment taxes. These include  Federal Income Tax (withheld from wages); Social Security and Medicare Taxes (also withheld from wages), an  Additional Medicare Tax (as of January 1, 2013, employers are responsible for withholding the 0.9% Additional Medicare Tax on an employee's wages and compensation that exceeds a threshold amount based on the employee’s filing status); and Federal Unemployment (FUTA) Tax. In many states, there is an additional state and locality tax on employment.

Uber drivers must pay self-employment taxes, which include income, Social Security and Medicare components—however, those amounts due are calculated after the driver subtracts his or her business expenses. This opens the door to the possibility of excessive deductions—a possibility that is foreclosed in the traditional employment relationship.

Is Uber a clever business, or a business that skirts taxes? Or both? 

My thought is that Uber enjoys a large degree of its competitiveness due to its ability to shift direct operating costs to ordinary people, as well as its ability to avoid taxes that taxis, bus and shuttle companies, and train systems cannot duck.

Why should you care? Because if you are an employer or an employee or both, you might be paying in the future to keep Uber and its copy-cats cost-competitive.

Don’t Like Taxes? Here’s What’s Wrong with This Picture

Here is an “Uber car” parked outside my office. And here’s what’s wrong with the picture.

1.       The car has a regular license plate for a passenger car. But it’s also a commercial car. Taxis pay much higher motor vehicle fees. If you own a commercial van or truck, you pay higher fees, too. Probably not this guy. (The Chicago tag above the Uber tag appears to be for permit parking in Chicago, apparently unrelated to driving for Uber.)

2.      Did your employer report all your income to federal and state authorities? Yes, of course. Did Uber report this driver’s income? Not likely because he or she is misclassified as an independent contractor. So, this driver is on the honor system for reporting all of his or her income. What’s that?  You question whether that happened?

3.      This car might be insured under a regular driver policy, not a commercial policy. Now, if the driver gets in an accident while driving a passenger and files a claim, or has a claim filed against him or her, the insurance company might not know the car was used for commercial purposes. If, however, the insurance company actually knew the car was used for commerce, the policy would be priced higher to reflect greater risk and larger liability. Again, all of this depends on the driver’s honesty…. Now, if he or she is an angel, he or she won’t file a claim and will pay out of pocket because otherwise, this might be insurance fraud.

4.       Illinois and the U.S. have budgets that need to be cut, and likely, taxes to be raised. But before we do that, how about we simply enforce existing tax codes to make sure everyone pays their fair share? We could start with this car, and its driver, and also with Uber.

Is Chariot for Women Legal? The Case of Wilson v. Southwest Airlines

The ride-share business has a new entrant, Chariot for Women. The business utilizes only women drivers and only women can be passengers. Ironically, the business was started by a male driver for Uber.

Is this legal? First, the employment piece. Chariot can argue that it has no employees as drivers—only independent contractors. I take strong exception to this line of reasoning—and this business model— in my paper, Michael H. LeRoy, “Bare Minimum: Stripping Pay for Independent Contractors in the Share Economy,” William & Mary Journal of Women and the Law, Vol. 23, No. 2 (2017). 

If drivers are properly classified as employees, Chariot will have great difficulty justifying the female-only employee business model. Years ago, men sued Southwest Airlines over a female-only flight attendant policy that emphasized “love” in flight and the allure of attractive female flight attendants for a mostly male clientele. A federal court reasoned that Southwest is in the business of providing transportation, not erotic appeal to male customers. By that same reasoning—which many other courts have adopted— Chariot is also in the business of providing transportation. Chariot will lose the argument that customers prefer women drivers because customer preference is not allowed as a justification for discrimination. (If one has a problem with this, consider the implications of Chariots for Whites based on a racial preference by customers.)

Next, there is the female-customer part of the business model. With all the controversy directed at businesses and states that religiously discriminate against transgender bias, this seems to be an ill-timed business launch. At bottom, the business is highly suspect because it assumes that men and women cannot safely and securely share a ride. Here’s hoping that the wheels fall off this chariot soon.

George Mason University Wipes ASSOL, Favors New Name

George Mason University (GMU) recently decided to rename its law school to honor Supreme Court Justice Antonin Scalia. The result? Truncation of Antonin Scalia School of Law, which by acronym is either  ASSOL or ASS Law. After merciless internet jokes, the university is rethinking exactly how to honor the late Justice. 

Government Shutdown of Supreme Court?

The most practical implication of Sen. McConnell’s announcement not to hold hearings on Judge Merrick Garland? The high court is accepting fewer cases for review than in the past. As reported by Lawrence Hurley (Reuters), in the past five years the Court docketed an average of eight cases from late February to early April, with a high of 11 in 2013. Since Justice Scalia died, only three new cases have been put on the Court’s calendar: a patent dispute and two criminal appeals. None is considered controversial. The Court is also engaging in very unusual behaviors to promote current litigants to settle disputes.

Short-term, it’s hard to say if this is good or bad—but it raises the possibility that the third branch of the U.S. government is in the early stages of a partial shutdown. That is the implication of the current trend of reducing the Court’s caseload by more than 50%. This is one way to reduce the footprint of the federal government. On the other hand, the impact will be the fragmentation of law, making the U.S. feel more like the EU in how the rule of law affects businesses and individuals.  

Are We in Denial? Why PBGC Might Concern Us

Do you have a retired mom or a dad over 65 years old who worked for a private company? If yes, they—unlike you, if you are under 40 years old— might have a pension called a defined benefit plan. This was true of 30 percent of all workers in 1978—but only true for 3% in 2011. 

Increasingly, employers have been unable to fund those benefits. When that happens, a semi-governmental agency called PBGC [Pension Benefit Guaranty Corp.] pays up to about $50,000 in benefits per year. 

Now comes news that PBGC might run out of money (compare to pension plans for public employees in Illinois). What’s the next step? PBGC is mulling over a request to Congress to raise taxes to fund the shortfall. Currently, only employers who have these plans pay premiums to support the pension insurance fund. Congress isn’t going to raise taxes for pensions, so what does that mean? If you have a parent tied to one of these plans, you might start to save money to take them into your home and into your budget. For more: click here.