In 2012, however, in Hosanna‐Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., the U.S. Supreme Court adopted the ministerial exception doctrine. This exception is an affirmative defense that an employer can use to defend employment discrimination lawsuits. The Supreme Court has recognized that while there isn’t a strict formula to decide when the exception applies, it is usually the role performed by the employee and the religious activities of the employer that determines whether the exception applies.

On March 7, 2018, New York’s federal circuit court in Penn v. New York Methodist Hospital, decided a case based on the application of the ministerial exception doctrine.

In Penn, Marlon Penn, an African American Methodist, worked as the duty Chaplain for New York Methodist Hospital (the “Hospital”) in a primarily ministerial role. For example, “he coordinated the distribution of Bibles, conducted an in-hospital memorial service for an employee who dies, and ‘maintained . . . active, on-going pastoral care to staff.’” Penn remained in this position from 2004-2011.

Penn’s lawsuit stems from several requests that were ignored by the Hospital, asking them to promote him to full-time Staff Chaplain. Instead of hiring Penn, the hospital, on two occasions, passed him over in favor of a Jewish rabbi and a non-Methodist. In 2010, Penn filed an administrative complaint with the federal EEOC and New York Division of Human Rights alleging that the hospital failed to promote him because of his race and religion.

In response to Penn’s complaint, the Hospital provided several purportedly legitimate reasons for failing to promote him. The Hospital argued that Penn ended a service with a hymn that was only familiar to certain types of Christians, spent too much time counseling patients, was insensitive to non-Christian patients, and did not attend meetings. Also, Peter Poulos, the Director of the Department of Pastoral Care, argued that the second employee hired as a full-time Chaplain was a stronger candidate with better pastoral counseling skills than Penn.

In determining whether or not to apply the ministerial exception to Penn’s case, the Second Circuit noted that although there were some organizational and operational changes showing that the Hospital promoted its secular nature, there was nonetheless ample evidence indicating that the hospital remained significantly connected to its religious history. For example, the hospital has kept the word “Methodist” in its name, the Hospital’s by-laws require the hospital to appoint a president “with the advice and counsel of the Bishop of the New York Area of the United Methodist Church,” the by-laws require that every board meeting begin with a prayer, at the employee orientation Chaplain Polous tells employees that “patients are human beings who are created in the image of God,” and the Hospital provides religious services through its pastoral care department.

The Second Circuit’s decision then reiterated Hosanna-Tabor’s primary reason for implementing the ministerial exception doctrine which was to avoid infringing on a religious institution’s First Amendment rights. In other words, requiring a church or a religious group to accept or retain an unwanted minister would violate the First Amendment which prohibits government intrusion in these decisions. Thus, the court stated that because a jury hearing this case would have to make determinations on how a Chaplain should conduct religious services or provide spiritual support, it would dive deeply into protected First Amendment concerns.

Thus, due to the religious nature of Penn’s position at the hospital and the fact that the hospital’s Department of Pastoral Care was indeed a “religious group,” the Second Circuit agreed with the lower court’s decision to apply the ministerial exception and ruled in favor of the hospital.

Famighetti & Weinick PLLC are employment lawyers in New York. If you have questions about employment discrimination or other employment matters, call one of our Long Island employment lawyers at 631-352-0050. We are also available on the internet at https://www.linycemploymentlaw.com or on Facebook.

Today’s employment law blog was written by Hofstra Law School student and employment law intern, Thalia Olaya.

Employment at Will

The starting point to many employment law questions is the fact those most states, including New York, are employment at will states. Employment at will means that employers can hire or fire employees for nearly any reason at all, as long as the reason is not unlawful. Unless the employee was able to negotiate a contract which sets the terms of employment, employees generally remain at will so employers are free to impose all kinds of conditions on employment. One of the conditions an employer may place on an employee is that the employee be vaccinated against diseases, such as the flu. An employee may refuse to accept the vaccination, but in most cases, because the employee is “at will” the employer may fire the employee for not complying with a vaccination policy.

In sum, because many employees are “at will” and can be terminated for any reason, employers are generally free to require that their employees be vaccinated against certain diseases. That is unless an exemption to the general rule applies. These exemptions are discussed below.

Union Contracts Set Terms of Employment

Employment at will can be altered in workplaces where the workforce is unionized. Unions typically negotiate contracts which set the terms and conditions of employment for members of the union. Usually, these terms include pay structure, vacation, health insurance and other benefits, sick leave, disciplinary procedures, and work hours. Unions, however, may also negotiate other terms such as whether the employer can require vaccinations. If you are a union member, you should speak with you union about whether your contract allows the employer to require employees receive vaccinations.

Religion May Prohibit Vaccinations

Title VII of the Civil Rights Act prohibits discrimination based on, among other things, religion. State and Local laws, like the New York State Human Rights and the New York City Human Rights law, also prohibit discrimination based on religion. These laws require that employers make reasonable accommodations for employees’ sincerely held religious beliefs. So, if by receiving a vaccination an employee believes he or she would be forced to violate a sincerely held religious belief, the employee may request a reasonable accommodation. In a hospital setting, such accommodations for a vaccination may include a mask and/or counseling with how to minimize the spread of infectious diseases. Many employers should have procedures in place to allow their employees to make requests for accommodations, but it may also be best to consult with an experienced employment lawyer to discuss your situation first. The employer will likely review the stated religious belief to determine whether it believes an accommodation is appropriate. An experienced employment lawyer can help you articulate the religious belief in a way more likely to trigger accommodations.

Disability May Prohibit Vaccinations

The Americans With Disabilities Act prohibits discrimination based on an employee’s disability. Like religion, State and Local laws similarly prohibit discrimination based on a disability. A disability does not need to be completely disabling. Rather, many medical conditions may constitute a disability under the disability statutes. If an employee has a medical condition which prevents the employee from receiving a vaccination, the employee can request an accommodation like under the religious exemption.

Pregnancy May Prohibit Vaccinations

The third statute which may protect employees from required vaccinations is the Pregnancy Discrimination Act . Like disability and religion, the Pregnancy Discrimination Act requires that employees make certain accommodations for pregnant employees. Pregnancy employees should be prepared to articulate a particularized danger in receiving a vaccination and not just generalized fear. An experienced pregnancy discrimination lawyer can discuss your particular situation and advice you accordingly.

Long Island Vaccination Lawyers

In sum, most employees will likely be subject their employer’s vaccination requirement. Notably, generalized beliefs about the medical dangers of a vaccine or social or other generalized beliefs about vaccinations unrelated to religion are not enough to trigger protections or accommodations. Like most legal questions, the issues related to forced vaccinations are specific to each situation. Today’s blog should not be used as legal advice, but merely as general information about workplace vaccinations. If you have a particular issue or question concerning workplace vaccinations, contact an experienced Long Island employment lawyer at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 or visit us on the internet at https://www.linycemploymentlaw.com.