Last week, the U.S. Supreme Court ruled that two teachers at religious schools could not pursue claims of age and disability discrimination in Our Lady of Guadalupe School v. Morrissey-Berru. This decision relied heavily on the ministerial exception to ...
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U.S. Supreme Court Decides Private School Discrimination Case and more...

U.S. Supreme Court Decides Private School Discrimination Case

Last week, the U.S. Supreme Court ruled that two teachers at religious schools could not pursue claims of age and disability discrimination in Our Lady of Guadalupe School v. Morrissey-Berru. This decision relied heavily on the ministerial exception to anti-discrimination laws. The ministerial exception is rooted in the First Amendment’s Free Exercise and Establishment Clauses, and disallows legal claims against religious schools by their employees who carry out religious functions. The ministerial exception is intended to protect churches from government influence, but the line deciding who is considered a “minister” is not always clear.
In this case, the Supreme Court applied the ministerial exception to two teacher-employees who carried out important religious functions, but were not otherwise considered “ministers.” The teachers taught religion in their classrooms, prayed and worshipped with their students, and had their performance measured on religious bases. Educating young people in their faith is at the core of a private religious school’s mission. For this reason, the two teacher-employees qualified as “ministers” under the ministerial exception, and therefore were not allowed to bring anti-discrimination cases against their employer schools.

Though this case will have substantial implications on employees of religious organizations, it will have little to no impact on employees who work in the public sector. Public sector employees are still covered by the anti-discrimination laws at issue in Our Lady of Guadalupe School.

Should You Have a COVID-19 Travel Policy

Normally, an employee’s off-duty travel, or the travelers that they host in their home, are rarely the concern of an employer. These are just not normal times.

As more employees return to the workplace, employers continue to evaluate how to keep them safe by reducing the possible exposure and spread of COVID-19 in the workplace. Without national uniformity on face coverings and businesses reopening, which many attribute to spikes in COVID-19 cases in some states, employers must be increasingly aware of not only what employees do in the workplace, but where they have been and who they have been with outside of work.

Many employers are implementing travel policies which evaluate employee travel on a case by case basis and determine whether an employee’s travel or hosting of travelers increases the risk of exposure to the coronavirus to an unacceptable level. The analysis looks at where the employee traveled to or from where they hosted travelers, the mode of travel (air, bus personal car, etc.), and the risk level for that location, along with the employee's job duties (i.e. can they be socially distanced at work). Depending on the particular facts, the employee may be found to present an unacceptably high risk of exposure and spread of the coronavirus and prohibited from coming to work for the 14-day incubation period. In other instances, an employee can be directed to take extra precautions at work, such as wearing a face covering all the time, or temporary reassignment to ensure social distancing.

Unless the employee actually ends up testing positive or is recommended to quarantine by a medical provider, any time away from work because of personal travel or hosting travelers is without pay unless the employee uses benefit time. If the employee tests positive or is ordered to quarantine by a doctor or health care provider, they are eligible for EPSLA, unless already exhausted.

Some employees and labor unions question the authority of an employer to not only ask about travel and hosting travelers off duty, but to prohibit an employee from reporting to the workplace when they are determined to be at high risk for that reason. Here is the rationale: the employer has the obligation to provide a safe work environment. This is a general OSHA regulation. Additionally, employers have the right to take non-discriminatory precautionary measures to ensure that their operations continue efficiently and without interruption. In this regard, it is much the same as sending an employee home because they are sick, but more precautionary in nature due to the severity of the consequences of the spread of coronavirus. An employee who has traveled or hosted travelers from coronavirus "hot spots" may create an unsafe workplace by coming to the workplace when they are at a higher risk of exposure resulting from travel. The employer has the right to control their workplace and, much like sending an employee home with a bad cold or flu, can prevent an employee from coming to work when they may be at high or higher risk of exposure and spread of the coronavirus.

COVID-19 travel policies are admittedly difficult to enforce because they remain reliant on self-disclosure by employees. Like any other employment rule or policy, they are enforceable through discipline. It helps to ease the minds of employees to inform them that travel or hosting travelers from current “hot spots” does not automatically require employees to stay at home and burn two weeks of their benefit time. It only requires analysis on how to maintain a safe workplace in light of the fact that employees are free to engage in personal travel, but employers maintain the right and duty to ensure a safe workplace.

Finally, it is important to apply the policy in a nondiscriminatory fashion. Employers should rely on current CDC and other public health agency travel guidelines to identify current hot spots rather than speculate on who may be at higher risk of exposure. The goal is always to keep employees working safely and not necessarily to prohibit them from reporting to work.

The labor and employment attorneys at Ancel Glink have assisted many employers with COVID-19 travel policies. For assistance in drafting or enforcing a travel policy for your organization, call the Ancel Glink attorney with whom you usually work or contact Margaret Kostopulos (tel: (312) 604-9106, Keri-Lyn Krafthefer (tel: (312) 604-9126), or Matt DiCianni (tel: (312) 604-9125).

Minimum Wage Increase, Fair Workweek Ordinance, and More New Laws That Took Effect on July 1

While most people mark July 4 on their calendars, employers know that July 1 is also a day worth remembering because of the new laws that will impact their workplaces. Here are some of the new laws taking effect this July 1 that employers should take note of:

Minimum Wage Increase
Illinois’s second minimum wage increase of 2020 took effect on July 1. The minimum wage increased to $10/hr from $9.25/hr. The next minimum wage increase will take place on January 1, 2021, with wages increasing to $11/hr. The minimum wage will continue to increase $1/hr each January 1 thereafter until 2025, when it reaches $15/hr.

Chicago plans to reach its $15/hour goal by 2021, and as such, has accordingly raised its minimum wage to $14/hour from $13/hour on July 1. The minimum wage in suburban Cook County also increased to $13/hour on July 1.

Definition of “Employer”
On July 1 the definition of “employer” in the Illinois Human Rights Act was changed to mean anyone employing one or more persons in the state for 20+ weeks within the calendar year. Previously, an employer was defined as having 15 or more employees. This changed definition means that the size of an employer will no longer determine whether workers are protected from discrimination on the basis of race, sex, age, sexual orientation, religion, and other protected classes under the Illinois Human Rights Act. Small businesses may now be subject to discrimination claims that did not previously apply.

Chicago’s Fair Workweek Ordinance
Chicago’s Fair Workweek Ordinance went into effect on July 1. This ordinance requires employers to give employees at least ten days advance notice of their schedules and provide “predictability pay” compensation for any last-minute changes. The Fair Workweek Ordinance applies to employees who earn less than $26/hour or $50,000/year, perform the majority of their work in the Chicago, and work in one of seven industries: building services, healthcare, hotels, manufacturing, restaurants, retail, and warehouse services.

Harassment and Discrimination Disclosure 
Employers are now required to annually disclose any adverse judgment or administrative ruling related to harassment or discrimination against them. An employer may be required to disclose information on sexual harassment or unlawful discrimination settlements if the Department of Human Rights is investigating a charge filed under the Illinois Human Rights Act and requests the information.


Illinois Supreme Court Rules on Police Misconduct Records Case

On June 18, 2020, the Illinois Supreme Court upheld a lower court ruling that the City of Chicago did not have to comply with an arbitrator’s award that required it to destroy police misconduct records as stipulated in the governing collective bargaining agreement (CBA).

In City of Chicago v. Fraternal Order of Police, Chicago Lodge No. 7, the Fraternal Order of Police, Chicago Lodge No. 7 (FOP) arbitrated Section 8.4 of its 2007-12 CBA with the City of Chicago, which required the City to destroy of police misconduct records after five (5) years. The arbitrator issued an award requiring both parties to agree on a solution for document destruction. The City then sought to overturn the award on public policy grounds citing the Illinois Local Records Act (50 ILCS 205/1, et seq.). The City filed suit in state court, which overturned the arbitrator’s award at the circuit and appellate courts with the Illinois Supreme Court in agreement.

The Illinois Local Records Act prevents the destruction of all public records. Records may be destroyed after the head of an administrative agency submits documents to an appropriate Local Records Commission for review. The Commission determines whether documents have “no administrative, legal, research, or historical value and should be destroyed or otherwise disposed of.”

The City argued that various sections of the Local Records Act mandate the City to maintain records and follow recordkeeping and review procedures under the Act. Specifically, the City is required to submit documents to the Commission to determine whether documents can be destroyed or must be preserved. The FOP argued that the City was required to abide by the CBA’s agreed upon contract language and that the City knew of its obligations under the Act upon agreement.

It has been long held that when Illinois courts review an arbitrator’s decision, the arbitrator’s award is construed, if possible, as valid. However, Illinois law carves out an exception that can overturn an arbitrator’s award if the decision runs contrary to public policy. Further, state law requires that when a conflict exists between a contract provision and state law, state law prevails.

The Illinois Supreme Court concluded that the arbitrator’s award violated an “explicit, well-defined, and dominate public policy.” The Illinois Supreme Court reviewed an arbitration decision in favor of the Fraternal Order of Police and found the City of Chicago satisfied the narrow public policy exception to vacate arbitration awards that are based on collective bargaining agreements. Under this exception, the court will vacate an award if it is “repugnant to the established norms of public policy.” This is determined by applying a two-part test. The first part requires the identification of a well-defined and dominant public policy, found in the Local Records Act. Then, the test looks to determine whether the arbitrator’s award violated the public policy. The Illinois Supreme Court held that the arbitration award violated an explicit, well-defined, and dominant public policy, and thus invalidated the collective bargaining agreement section in question.

Following the majority opinion, Justice Kilbride, writing in dissent, argued that the arbitrator’s award should have been upheld because it only required both parties to meet and negotiate to reconcile the contract language and public policy considerations.

Public employers should take note that any collective bargaining agreement in which they are a party that contains requirements to destroy discipline records similar to those in this case, is likely now invalid. Employers should review their collective bargaining agreements for this type of provision and consult with their labor and employment attorneys on appropriate action.

Supreme Court decision

Back in October of 2019, we wrote about the Supreme Court of the United States (SCOTUS), hearing a trio of cases involving gay and transgender employees being terminated from positions of employment. Yesterday, SCOTUS decided those cases. In the landmark ruling Bostock v. Clayton County, Georgia, the Court held in a 6-3 opinion that “[a]n employer who fires an individual merely for being gay or transgender violates Title VII.”

Title VII of the Civil Rights Act of 1964 is a federal law that renders unlawful “an employer[’s] [decision] to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual...because of such individual’s race, color, religion, sex, or national origin.” Historically, Title VII’s definition of “sex” only referred to biological distinctions between men and women. Supreme Court Justice Neil Gorsuch, writing for the majority, succinctly summarizes the essence of all three cases: “[a]n employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender-and allegedly for no reason other than the employee’s homosexuality or transgender status.”

Although the opinion, with dissents by Justices Alito and Kavanaugh, came out to 172 pages, Justice Gorsuch’s reasoning was fairly straightforward. Justice Gorsuch primarily relied on the statutory interpretation of Title VII itself. He reasoned that the plain meaning of Title VII at the time of its adoption leads us to conclude that an employer is liable under Title VII by intentionally terminating an employee because of that employee’s sex. Thus, when an employer discriminates against an employee for being gay or transgender, the employer is also discriminating against that employee’s sex.

Justice Gorsuch perfectly explains his reasoning here: “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

Justice Gorsuch further discusses this by noting that “there is no such thing as a ‘canon of donut holes’” referencing Congress’s neglect to include certain cases in a statute’s definition, but that would otherwise fall within the general scope of the law. For example, Justice Gorsuch cites, the Supreme Court’s decision in Oncale v. Sundowner, which concluded the definition of sexual discrimination includes forms of sexual harassment (specifically, same-sex sexual harassment).

The legal significance of Bostock is broad. Although some states have already adopted workplace protections for employees that identify as gay or transgender, state and federal administrative agencies that process discrimination claims must now comply.