Tag: discrimination
Muslim people praying in a park.

Trump Administration Issues Last-Minute Rules Promoting Religious Discrimination

Reprinted with permission from ProPublica

It was the hectic week before Thanksgiving, and Amrith Kaur — the legal director of an advocacy group called the Sikh Coalition — was not prepared for a surprise update from the Equal Employment Opportunity Commission that could have dramatic consequences for her clients.

With little warning, the EEOC published a 112-page overhaul of its guidance on religious discrimination in the workplace. The feedback period was proceeding with no time to spare — she would have to file any comments by Dec. 17.

"To my knowledge, that was the first time that pretty much everybody heard about it," said Kaur, who was busy handling home schooling for her children, ages 8 and 10, when the announcement popped up. "There's so much happening, and I think it's very strategic the way this was brought out."

The guidance is among scores of last-minute actions that ProPublica is tracking on their way through the approval process, many of them accelerating as it became clear that President Donald Trump's time in office would end on Jan. 20.

The EEOC's guidance explains the complicated statutes and legal precedent that govern how employers must deal with religious freedom issues in the workplace. It doesn't have the force of law, but it can be cited in lawsuits, and it serves as a manual for managers navigating thorny situations.

As she dug into the document's dense language and footnotes, Kaur was particularly distressed because of what she found to be a slant toward large Christian employers like colleges and social service agencies, rather than smaller religions like Sikhism, which face widespread prejudice. For example, in recent days, she's had to focus on advising health care workers who keep long beards as part of their religious practice. Some hospitals and nursing homes ban facial hair to ensure a proper fit for face masks, but Kaur has been able to work out accommodations that are both COVID-19-safe and allow medical staff to observe their faith — which the new guidance doesn't address.

As the comment period ended, dozens of other civil rights groups and Democratic leaders filed letters appealing for more time and agreeing that the new guidance could allow for more discrimination under the guise of religious freedom, rather than less.

Unlike many midnight regulations that President-elect Joe Biden could roll back, the EEOC commissioners have multiyear terms, so the Biden administration won't be able to change the board's composition until 2022. Meanwhile, Kaur fears that adverse case law could accumulate. "It is our belief that these proposed changes in the manual, and what I think is a clear bias towards Christian viewpoints at the expense of all others, it's just going to have profound negative effects for years to come," she said.

Most administrations kick rule-making into high gear once they know their party is leaving the White House, and Trump's is no exception. A flood of new entries in the Federal Register includes several rules and guidance documents that widen lanes for religious institutions to exclude those who do not share their faith, or narrow the options for beneficiaries of federal programs who feel uncomfortable receiving services in a religious context.

Some of the freshly finalized rules codify an executive order that Trump issued in 2018 declaring that faith-based organizations should have full access to government grant programs without having to modify their operations. They deliver on the promises that Trump made to evangelical Christians during his presidential run, and which he and Vice President Mike Pence campaigned on again in 2020 — the White House's website contains 228 mentions of "religious freedom," in posted speeches, press releases and other official statements.

Earlier in the term, Trump's religious freedom agenda focused on the Department of Health and Human Services, which adopted a rule that protects health care providers who object to certain procedures — namely abortion — on religious grounds, among a host of other actions. Even now, HHS is witholding funds from states that require their insurance plans to cover abortion.

Later, Trump moved on to further integrating religious organizations into the operations of government itself.

In an October interview with the Religion News Service, Trump touted his administration's work to install religious freedom liaisons in every Cabinet agency. "Led by Pastor Paula White, this Initiative is working to remove barriers which have unfairly prevented faith based organizations from working with or receiving funding from the federal government," Trump said in a written Q&A.

On that front, the first big change finalized Dec. 7 was at the Office of Federal Contract Compliance Programs, an agency within the Labor Department that enforces compliance with civil rights laws among recipients of federal dollars. The new rule clarifies that private companies can qualify as "religious employers" under certain conditions, and that religious employers may deny positions to people who do not subscribe and adhere to their faith. That could include not hiring people in same-sex relationships or someone of a different religion.

Advocates for marginalized communities say that the rules open the door for religious institutions to use faith as a pretext for firing or simply declining to hire people whom they would prefer not to employ because of other factors — such as sexual orientation or medical disability — even though discriminating on those bases is still illegal.

"If that employer just throws up their hands and says 'RFRA!' it's like a get out of jail free card," said Human Rights Campaign legal director Sarah Warbelow, referring to the Religious Freedom Restoration Act, a 1993 law that strengthened the test for what can be considered a burden on the free exercise of religion.

Religious employers say that situation likely won't occur often, but they still supported the change. Jamison Coppola, legislative director of the American Association of Christian Schools, said that most people who work for his member institutions accept that abiding by faith-based principles is part of the deal.

"It's a rare occurrence where people enter an employment decision and then realize, 'Oh, I guess we have some difference of opinion about this,'" Coppola said. "I just think that we don't run into it that often, because of how we approach the totality of what we're trying to do as an assembly of believers."

Among the largest supporters of the rule was Catholic Charities, which, according to USAspending.gov, received approximately $189 million in federal contracts and grants in 2020 across all of its affiliated organizations.

The second change, finalized a few days later after a lightning-fast trip through the Office of Management and Budget, was a joint effort of nine agencies that elaborated on the religious freedom exemptions for recipients of their own spending. It gets rid of the earlier requirement that religious providers of federally funded social services, from food banks to job training, provide referrals to secular alternatives. In the case of "indirect" aid that travels with the beneficiary, like child care and housing vouchers, it eliminates the requirement that there must be a secular option available.

The concerns with those rules center around the possible exclusion of people who may feel uncomfortable getting aid in an explicitly religious setting, even if providers are not allowed to proselytize as part of the programming.

"They are really putting what they believe are the interests of these large social service providers ahead of the people who receive the service," said Maggie Garrett, vice president of public policy at Americans United for Separation of Church and State. "Their priority is not the LGBTQ youth who is seeking services because they were kicked out of their home."

Not all religious organizations — or even Christian organizations — support the changes. Some have recommended that the requirements for secular alternatives be kept because of the delicate political balancing that has gone into these rules over the years.

"It eased peoples' conscience or concerns about having more faith-based groups be involved in these services," said Stanley Carlson-Thies, founder and senior director of the Institutional Religious Freedom Alliance, which represents Christian employers. Now, he fears a backlash.

"I personally don't know of anybody who was asking for this change, but there it is, and I don't think it's a good change," Carlson-Thies said. "And I think that one thing that's going to happen is that the next administration is going to go through a regulatory process and take those out, and they'll do other things too that to my mind won't be so positive."

Finally, the Trump administration is moving forward with its guidance for all employers, whether they contract with the federal government or not, through the EEOC.

The last time the agency updated its religious freedom guidance, in 2008, it went through an expansive, yearslong process that incorporated feedback from a panoply of groups that represent faith communities and those impacted by them, such as advocates for LGBTQ people and women's reproductive rights.

Trump's EEOC has shifted its emphasis toward supporting the rights of religious employers and employees. For example, it took up the case of two Kroger employees who were fired after they objected to wearing a rainbow heart emblem on their uniforms, which they interpreted as a symbol of support for gay rights.

In a November online forum hosted by the conservative Federalist Society, EEOC General Counsel Sharon Fast Gustafson articulated the new focus. "The EEOC has an interest in the courts getting all aspects of employment discrimination right, whether getting it right helps the employee, or whether getting it right helps the employer," she said. "Religious liberty has been a high priority for the current administration, where everyone I have spoken with has been unequivocally supportive of religious liberty for all."

However, many religious groups felt left out of the process that led to the EEOC's new guidance.

The updates were put together in the wake of a landmark Supreme Court decision in June that declared gender identity and sexual orientation to be protected classes in an employment context, making it much more difficult to discriminate against gay, lesbian or transgender people in the workplace. EEOC spokeswoman Christine Nazer said the new guidance was drafted by the agency's office of legal counsel, with no input from external stakeholders.Many groups that closely track religious freedom issues found out about the updates during a three-day listening session convened by the commission's Religious Freedom Work Group, which is led by Assistant General Counsel Christine Lambrou Johnson. According to her LinkedIn profile, Lambrou Johnson is a member of the Christian Legal Society, which describes itself as "a fellowship of Christians dedicated to serving Jesus Christ through the practice and study of law, the defense of religious freedom and life, and the provision of legal aid to the needy."Nazer said the Religious Freedom Work Group's duties are separate from the development of the guidance, and that the commission voted to publish the guidance for public comment on Nov. 9, giving additional time for discussion. But at that meeting, the body's two Democratic commissioners said that they hadn't had enough time to provide input or that it was rejected by the commission's Republican members. The Democratic commissioners also raised questions about the legal soundness of some of the guidance's interpretations and pleaded for the vote to be delayed. It wasn't.


In addition to liberally interpreting exemptions from Title VII of the Civil Rights Act for religious employers to hire and fire on religious grounds, the guidance also raises the bar for intervention when one employee might be harassing another on religious grounds. And it says little about some of the common questions raised by the COVID-19 pandemic, such as the Sikh nurses that Kaur has been helping negotiate accommodations with hospitals, which would be easier if the EEOC had set out a clear position.

In response to these concerns, Nazer said that the commission is "carefully considering all of the comments provided to us by our stakeholders as we finalize the guidance."

Kaur is not comforted.

"Manuals like this, that are sort of taken as law even though they're not, are what our government is going to rely on to make a decision on whether discrimination took place," Kaur said. "We have the Title VII protections in the Civil Rights Act for a reason, and to try and decimate it in a way that's not supported by the law is a sad and disappointing attempt at getting around having to be fair to everybody."

BREAKING: Federal Appeals Court Says North Carolina Voting Laws Discriminate Against Black Voters

BREAKING: Federal Appeals Court Says North Carolina Voting Laws Discriminate Against Black Voters

A federal appeals court has struck down North Carolina’s new voter ID laws, passed in the wake of the Supreme Court’s gutting of the Voting Rights Act, saying that the laws “target[ed] African Americans with almost surgical precision.”

“Before enacting that law, the legislature requested data on the use, by race, of a number of voting practices. Upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways,” wrote Judge Diana Motz on behalf of Judges James Wynn and Henry Floyd. All three fourth circuit judges are Democratic appointees.

In addition to North Carolina’s voter ID law, the court also struck down provisions relating to early voting, same-day registration, out-of-precinct voting, and preregistration, according to Politico.

“The racial data provided to the legislators revealed that African Americans disproportionately used early voting in both 2008 and 2012,” the court’s decision read. “After receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days … eliminat[ing] one of two ‘souls-to-the-polls’ Sundays in which African American churches provided transportation to voters.”

“We recognize that elections have consequences, but winning an election does not empower anyone in any party to engage in purposeful racial discrimination,” the court wrote.

Read the full decision below:

The Scene Of America’s Discontent: Work And Life

The Scene Of America’s Discontent: Work And Life

Recognize this woman?

She’s sandwiched between the needs of aging parents and the demands of young children. Her frustration is palpable. She’s fed up with her employer’s inflexibility over her schedule and with her boss’s attitude that equates motherhood with undedicated slacking off.

True, her schedule has to accommodate occasional doctor’s appointments and school events for children, as well as the emotional rollercoaster of watching her parent’s health decline. But she has a full-time career and a track record of success in a business that she dearly loves.

Guess what. This woman is now a man.

Among the more interesting findings of a new report on work/life conflicts is the dramatic rise in lawsuits by men who feel discriminated against as they try to manage it all. Welcome to the workplace, gentlemen.

It’s a sad commentary on gender, but the fact that men are increasingly being moved to sue their employers over family responsibilities will help change attitudes and policies. And they have to change.

The massive rise in discrimination lawsuits involving family responsibilities like child care, elder care, and maternity and paternity leave is “the biggest challenge employers never (saw) coming,” according to Cynthia Thomas Calvert, the author of “Caregivers in the Workplace.”

More fathers than mothers now report work/life conflict, according to the study, which was conducted by the Center for WorkLife Law at the University of California, Hastings.

That shift is reflected by an astonishing 269 percent rise in lawsuits decided in the last decade that involved family responsibilities. The 4,400 cases studied cost employers nearly a half-billion dollars in verdicts and settlements between 2006 and 2015, yet these likely constitute only a fraction of what actually went through the courts.

Most of these cases go forward through a patchwork of protections. But Calvert also points out that no federal law exists that explicitly bans discrimination based on family responsibilities.

The majority of cases studied involved pregnancy and maternity leave. But men, as their numbers grow as caregivers, are now fighting attitudes that working women have long faced. WorkLife Law, a nonprofit advocacy group focused on ending employment discrimination against caregivers, runs a hotline, and 25 percent of the calls are now from men.

Increasingly, it is fathers who are offended when denied a plum assignment based on the perception that they won’t be as committed to their company. Now it is men who are angered that they are denied paternity leave or are passed over for promotion because they spend time caring for a disabled child.

A lot of the problems are the result of employees being penalized at work not for their actual job performance but based on assumptions and biases that too often are not recognized — at least until the lawsuit is filed.

Calvert’s study shows that the complaints occur in virtually every industry and at every level of employment, including top managers. And all races and genders were represented in the cases studied — although racial bias can further complicate workplace assumptions about how employees with family duties will or should behave.

Most employees will at some point in their careers become a caregiver. The study found that of the 43.5 million adults who gave unpaid care to either an adult or a child with special needs in 2014, nearly a quarter were millennials.

It’s tempting to believe that the country is sorting these issues out and heading in a better direction, that the gains of technology and awareness of our aging population are causing workplaces to realign policy and practices.

In reality, we are in the midst of ideological battles about work in general. Consider the fights over efforts to strip workers of their right to collective bargaining, debates about the minimum wage and the growing gap between what CEO’s earn and the salaries of everyone employed beneath them. The relationship between work and life is in turmoil in America.

So much of modern politics skirts these issues. However, judging by this 44-page report, they are urgently important to most voters. Forget the culture wars, Donald Trump’s bluster and Hillary Clinton’s email server. The concerns of the average voter are closer to home and work. Yet who is speaking for families struggling to manage it all?

(Mary Sanchez is an opinion-page columnist for The Kansas City Star. Readers may write to her at: Kansas City Star, 1729 Grand Blvd., Kansas City, Mo. 64108-1413, or via e-mail at msanchez@kcstar.com.)

(c) 2016, THE KANSAS CITY STAR. DISTRIBUTED BY TRIBUNE CONTENT AGENCY, LLC

Photo: Wikimedia Commons.

Transgender Student Rights: Education Department, Courts Not On Same Page

Transgender Student Rights: Education Department, Courts Not On Same Page

By Duaa Eldeib, Chicago Tribune (TNS)

CHICAGO — The outcome of a transgender student’s fight for locker room access at a northwest suburban Chicago high school could reverberate nationally, as many school districts find themselves ill-prepared to handle a growing number of similar controversies that in some cases have fractured communities and put millions of dollars in federal funding at risk.

Federal authorities remain resolute in their position that transgender students are protected by federal law and — despite court rulings to the contrary — that districts stand in violation of the law if they do not allow transgender students to use facilities of their identified gender.

The U.S. Department of Education reiterated that stance Nov. 2, when it informed Illinois’ largest high school district, Palatine-based Township High School District 211, that it violated Title IX, the federal law that bans discrimination on the basis of sex, by prohibiting a transgender student from using the girls’ locker room.

“The law could not be any clearer,” Catherine Lhamon, assistant secretary for Civil Rights at the U.S. Department of Education, said in an interview. ” … The law has been, thanks to Congress, since 1972, that no student shall be subject to discrimination in school on the basis of sex, and it’s my job to enforce that promise for all of our nation’s students. I take that job very, very seriously, and I feel very strongly that all of our students should see their civil rights satisfied in school.”

The District 211 student, who filed a complaint in 2013 with the Education Department’s Office for Civil Rights, “has been discriminated against on the basis of sex,” Lhamon said.

Yet districts looking for definitive guidance may be stymied by the fact that the position taken by the Obama administration contradicts some of the court rulings in lawsuits over locker room and bathroom access for transgender students.

Among the most pressing questions is whether Title IX applies to transgender students.

In two separate rulings — one this year in a suit against a Virginia district and another in 2013 involving the University of Pittsburgh — the courts dismissed the Title IX claims and upheld the schools’ decisions to prohibit the transgender students from using the facilities that correspond with their gender identities. Both cases have been appealed.

To underscore their position, the U.S. Department of Education and the Department of Justice filed a brief in the Virginia case last month saying that school’s bathroom policy violated Title IX by discriminating against the teenager and subjecting him to differential treatment.

“I have great respect for our federal court judges, but these two have just misread the law,” Lhamon said. ” … We feel very confident about our interpretation.”

District 211 Superintendent Daniel Cates said the district reviewed legal opinions on the issue, including the Virginia case, when concluding that its policy was not discriminatory. The student uses a private, separate restroom to change for gym and sports, and as part of the negotiations with education officials, the district put up four privacy curtains in unused areas of the locker room and another one around a shower. However, because the district stipulated that the student would be required to use them, federal officials balked at the plan.

“Expecting and having students agree and commit to individual measures of privacy in the locker room of their gender identity is a very reasonable and legal accommodation. It’s one that we think can move this whole matter forward for not only us but many districts,” said Cates, who added that officials from other districts, including at least one out of state, have reached out to him for consultation on similar matters in their respective districts.

Kimberly Yuracko, a Northwestern University law professor who studies gender equity in employment, as required through Title VII of the Civil Rights Act of 1964, said she expects courts to look to Title VII cases for direction on Title IX because case law is more established.

“Schools won’t be able to expel transgender individuals. They won’t be able to put up with harassment. They’ll have to protect them in a variety of ways, but I can see bathrooms and locker rooms being the last holdout,” Yuracko said. “In Title VII cases, if a transsexual individual has a job rescinded, if they’re harassed, if they’re denied a job, they get protection, but not protection to use the restrooms of the gender with which they identify.”

The Department of Education’s statements are not binding in court, Yuracko said. She said she believes that transgender students likely will lose their bid for locker room and bathroom access in the immediate future. That could change in the next five years as the courts adjust their interpretations of the law, she said.

The American Civil Liberties Union, which is representing the student in the District 211 case, is counting on just that.

“This is an emerging area of the law,” said ACLU of Illinois spokesman Ed Yohnka. “In all civil rights work, especially as you begin the process of fighting for protections, it is not unusual to see a small number of court rulings at the beginning that are setbacks. If you think about marriage litigation, it is often the case that at the beginning, you’ll have courts that will split, or there will be a number of averse rulings that will then be followed by a series of positive rulings.”

Some transgender students have eschewed Title IX altogether and sought help under state human rights acts. The Maine Supreme Court in 2014 found that banning a transgender student from the girls’ bathroom constituted discrimination under the state’s Human Rights Act. Illinois added gender identity as a protected class to its Human Rights Act in 2006.

Mike Theodore, a spokesman for the Illinois Human Rights Commission, which adjudicates discrimination complaints, said that no Illinois cases related to bathroom or locker room use for transgender students have been decided.

“It is a completely new area of case law,” he said. “This process does move slowly for good reason because a good amount of analysis has to go into it to ensure the right precedent is set. The precedent that we set here could guide other court cases.”

District 211 officials said they believe locker room policy neither violates Title IX nor the state’s Human Rights Act — and have said they’re willing to risk their $6 million in federal funding or a potential lawsuit to prove it.

Cates said the district “has long recognized and been responsive to the needs of our transgender students,” which includes bathroom access. The district also allows transgender students to have their gender and name changed on school records, uses their preferred pronouns and allows them to play on the sports teams of the gender with which they identify.

“The question at hand is whether the law requires school leaders to place students of the opposite sex in the same locker room without any measure of privacy,” Cates said.

The district’s firm stance has drawn both praise and criticisms from students and community members. Senior Jake Lytle, 17, started an online petition that has garnered more than 700 signatures in opposition of the district’s position.

“It’s biased and transphobic,” Lytle said.

His mother, Pamela Lytle, said the district’s solution to offer the student a private changing area was “extremely misguided.”

“That is separate but equal,” she said. “That’s a comfortable solution for you, but this is about having the student feel comfortable.”

More than 5,000 people have signed a competing whitehouse.gov petition, and supporters like Xiaobin Liu and about a dozen other community members recently showed up at the district offices with handmade signs backing the district. Liu, whose daughters graduated from District 211, said he has nothing against the student in question but feels that locker rooms are intimate areas whose access should be restricted.

“The locker room is different,” he said. “It’s open. There’s no door there.”

The Illinois State Board of Education has not followed the lead of places like New York, where state education officials this summer released a document outlining how to “create a safe and supportive school environment for transgender and gender nonconforming students.”

“ISBE currently believes that transgender students’ rights are protected by law and has no present intention of publishing any guidance regarding this subject,” agency spokeswoman Laine Evans said.

However the District 211 issue is ultimately resolved, school systems across the country will be watching, said Owen Daniel-McCarter, policy and advocacy director for Illinois Safe Schools Alliance, a nonprofit that works with schools on issues related to lesbian, gay, bisexual, transgender and questioning students.

“What we see in the districts that are being proactive is that when students can just be who they are and don’t have to have all this attention on whether their gender is conforming or not, they excel academically, they are healthier mentally and emotionally and physically,” Daniel-McCarter said.

The group worked with Berwyn South School District 100, which in August adopted a policy that included creating gender support plans for their transgender and gender nonconforming students and establishing a districtwide gender support team that could include social workers, school psychologists, teachers, nurses and P.E. teachers. Students can decide which gender bathroom and locker room they prefer to use.

Jeremy Majeski, principal at Berwyn’s Komensky Elementary School, co-leads the task force that helped craft the policy after one of his students began displaying signs of gender nonconformity.

“I knew that I needed to hang my hat on district administration policy and procedures,” Majeski said. “We’re just happy that all of this was put in place not because we were forced to, but because we wanted to.”

Photo: Transgender students want to be protected at schools.