Labor & Employment Law Daily Title VII’s religious organization exemption barred retaliation, hostile work environment claims against Salvation Army
Wednesday, March 20, 2019

Title VII’s religious organization exemption barred retaliation, hostile work environment claims against Salvation Army

By Kathleen Kapusta, J.D.

Also affirming summary judgment against the employee’s ADA claim, the court found no triable issue as to whether the Salvation Army failed to engage in the interactive process up to the time she was cleared to return to work, and after the clearance, she could not show she was disabled.

Title VII’s religious organization exemption (ROE) is not jurisdictional and is subject to forfeiture, the Ninth Circuit ruled, finding that it applied to the “clearly religious” Salvation Army. And while it had not yet addressed the question, the court found the exemption reaches beyond hiring and firing decisions. Although the Salvation Army failed to raise the ROE as an affirmative defense in its responsive pleading, it permissibly invoked it at summary judgment, and it applied to foreclose a former employee’s Title VII retaliation and hostile work environment claims. The court also found the employee’s ADA claim, in which she alleged that the Salvation Army failed to interact with her in good faith to arrive at a reasonable accommodation, was without merit (Garcia v. Salvation Army, March 18, 2019, Korman, E.).

Three years after she began attending religious services at the Salvation Army’s Estrella Mountain Corps, the employee was hired to work as an assistant to the pastor, a position she held for eight years when new pastors took over and she was reassigned to the position of social services coordinator. Not long after, she stopped attending the Salvation Army’s religious services, and her relationship with the pastor began to deteriorate.

Complaint. When she learned two years later that a client filed a complaint against her, she demanded to see it, but the pastor refused, claiming it was confidential. The employee then filed a grievance against the pastor claiming she felt discriminated against since leaving the church. She also filed an EEOC charge for religious discrimination and retaliation.

Leave. She then took medical leave for fibromyalgia, which was repeatedly extended. She was ultimately cleared to return to work without restrictions, but she refused, claiming she was “not ready to go back into the exact same working environment which [her] doctors ha[d] advised against” and “[t]here seem[ed] to be a mental block/barrier” regarding the customer complaint filed against her. Although she requested as an accommodation that the Salvation Army provide her with a copy or summary of the client’s complaint, it declined and demanded medical evidence supporting her disability and proposed accommodation.

Termination. When she did not submit the requested information, the Salvation Army provided her with a summary of the complaint. The employee reiterated her request for a copy; she was fired for an unexcused absence.

Lower court proceedings. She then sued under Title VII and the ADA, alleging that the Salvation Army subjected her to a hostile work environment because she stopped attending religious services and retaliated against her for filing a grievance. She also claimed the resulting stress precipitated health problems that the Salvation Army failed to accommodate. The district court, finding that Title VII’s ROE, which it held was jurisdictional, protected the Salvation Army from suit even if it failed to timely assert the defense, granted summary judgment against her Title VII claims. The court also dismissed the employee’s ADA claims on the merits.

ROE applies to Salvation Army. Noting that the ROE provides in relevant part that Title VII’s protections against discrimination “shall not apply to an employer with respect to . . . a religious corporation,” the appeals court explained that in applying the ROE, it determines whether an institution’s “purpose and character are primarily religious” by weighing all significant religious and secular characteristics. And here, the court found that the Salvation Army, which holds regular religious services and describes itself as part of the Universal Christian church, is “clearly” religious.

Reaches retaliation and hostile work environment claims. The employee also argued that, even assuming the ROE applied to the Salvation Army, it applied only to hiring and firing decisions. Disagreeing, the court found that not only did its text reach beyond hiring and firing—Congress exempted religious organizations from the entire subchapter of Title VII with respect to the employment of persons of a particular religion—limiting “employment” to hiring and firing decisions was inconsistent with the term’s use throughout Title VII.

Claims barred. As to the Salvation Army’s failure to raise the ROE as an affirmative defense in its responsive pleadings, the district court held that because it was jurisdictional, the defense could not be relinquished. Finding that it is not jurisdictional, however, the Ninth Circuit noted that not only is it not labeled as jurisdictional, it appears in a separate provision from that establishing federal courts’ jurisdiction over Title VII claims.

“Put otherwise,” said the court, “the ROE limits entitlement to relief in a narrow class of cases, not ‘the authority of federal courts to adjudicate claims under [Title VII].’ The district judge erred by ranking the ROE jurisdictional where Congress did not.”

Waiver. Noting that a number of courts have suggested that the ROE can never be waived, the court here found that these cases could be traced to the Third Circuit’s decision in Little v. Wuerl, which the Ninth Circuit found to be inapposite because it concerned the validity of an implied waiver defense based on an organization’s pre-suit conduct, not a procedural forfeiture.

Properly raised at summary judgment. Although statutory exemptions must be raised in a party’s initial responsive pleading, the Salvation Army did not raise the ROE in its answer. However, the court observed, in the absence of a show of prejudice, an affirmative defense may be raised for the first time at summary judgment. And here, the only prejudice the employee claimed was that she was denied discovery to test the Salvation Army’s defense. But as a former member of its congregation, she was intimately familiar with its religious focus and mission. Further, its status as a nonprofit corporation is public, along with its yearly financial reports. Absent prejudice, said the court, the Salvation Army permissibly invoked the ROE at summary judgment, and it applied to foreclose the employee’s Title VII claims.

ADA claim. Turning to the employee’s ADA claim, the court noted that a doctor’s release to work without restrictions supports a finding that a person no longer suffers from a disability. While the employee argued that the Salvation Army failed to interact with her in good faith to arrive at a reasonable accommodation in the months leading up to the day she was slated to return to work, the court found that each step of the way, the Salvation Army extended her leave, which was the only accommodation she requested.

She claimed that the Salvation Army refused to negotiate in good faith after she insisted on receiving a copy of the customer complaint rather than a summary, but this request only came after she was cleared for work “without restrictions.” As such, she could not show she suffered from a disability at that time. Noting that she failed to provide supporting medical documentation despite multiple requests, the court found that the Salvation Army was not required to continue an interactive process in the absence of medical evidence.

Accommodation not cognizable under ADA. Further, her demand to see the original complaint after the Salvation Army provided a summary underscored that her requested “accommodation” was not cognizable under the ADA, said the court, noting that obtaining a copy of a year-old client complaint was unrelated to the essential functions of her former job. Thus, it concluded, she failed to make out a claim under the ADA.

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