In the U.S. Supreme Court’s flurry of major decisions on affirmative action in college admissions and student loan relief, the significance of two other actions the court took at the end of its term last week may hold significant implications for public schools.
One was a decision giving employees stronger ground for requesting religious accommodations in the workplace under Title VII of the Civil Rights Act of 1964, the main federal employment discrimination law. The other is a case the court will take up next term that will help define when a school district’s decision to transfer a teacher or other employee is covered by Title VII.
Both cases center on Title VII, which bars employment discrimination based on race, color, religion, sex, or national origin. The first involves an issue that has come up relatively rarely in schools, while the second is a more bread-and-butter employment issue districts face on a regular basis.
Employers face stricter test on accommodating employees’ religious beliefs
The religious accommodation issue has come up relatively rarely in schools, at least under Title VII. But the new Supreme Court decision in Groff v. DeJoy may result in a reassessment in the closely watched case of a Christian public school music teacher who sought an accommodation so he wouldn’t have to use transgender students’ preferred names and pronouns.
In Groff, the court unanimously changed the standard for when an employer may deny a religious accommodation. The case involved U.S. Postal Service worker Gerald Groff, a Christian who did not want to work Sundays in observance of the Sabbath. The postal service accommodated him for a time, but eventually said he must do his share of Sunday shifts delivering Amazon packages. Groff quit and sued under Title VII, arguing that the postal service could have accommodated him without undue hardship on its business.
Lower courts ruled against Groff based on the high court’s 1977 decision in Trans World Airlines v. Hardison, which defined undue hardship as anything that required the employer to bear “more than a de minimis cost” to its operations.
Writing for the unanimous court in Groff, Justice Samuel A. Alito Jr. said the “de minimis” standard was “mistaken” and that employers must show that the burden of granting a requested religious accommodation would require a “substantial” increase in costs. (The court sent Groff’s case back to the lower courts for evaluation under the new standard.)
Teacher fired over refusal to use transgender students’ names in 2018
Among those awaiting the Groff decision most eagerly were former Indiana music teacher John M. Kluge and his lawyers.
When the 10,000-student Brownsburg, Ind., school district learned that several transgender students would be enrolling in the fall of 2017, it changed their names and pronouns in its student database to be consistent with their gender identity. The district adopted a policy that all school personnel would address those students by the names and pronouns on their records.
Kluge objected based on his religious belief that students should be addressed by their names and pronouns assigned at birth. The district tried an accommodation in which Kluge would address all students by their last names, but school district officials said they received complaints, including that Kluge sometimes slipped and used first names for cisgender students but not for transgender students.
Faced with an ultimatum to begin addressing transgender students based on the database information or be fired, Kluge offered his resignation in April 2018. He later tried unsuccessfully to rescind it. Kluge sued under Title VII for religious discrimination and failure to accommodate his religious beliefs.
Both a federal district court and the U.S. Court of Appeals for the 7th Circuit, in Chicago, ruled for the school district. In a 2-1 decision on April 7, the 7th Circuit accepted that Kluge presented a case that, on its face, suggested the district had failed to accommodate a religious practice. The burden then shifted to the district to show that it could not accommodate the teacher without undue hardship, one that was “more than de minimis” under Hardison. The court concluded that the last-names-only practice stigmatized transgender students, and that was enough to overcome the Hardison test in effect at the time.
Lawyers for fired teacher watching Supreme Court decision
With the Supreme Court altering the standard under Hardison from “de minimis” to “substantial,” Kluge’s lawyers with the Alliance Defending Freedom, a Scottsdale, Ariz.-based legal organization involved in many religious challenges to public schools and which also represented Groff, quickly filed a letter with the 7th Circuit discussing the development. Kluge has a pending motion for rehearing before the full appellate court.
“Clearly the panel decision can’t stand after Groff,” said John J. Bursch, the vice president of appellate advocacy at ADF. He says the accommodation allowing Kluge to use students’ last names was working well, and that concerns about it “were primarily instigated by other teachers.”
ADF says in its July 5 letter to the 7th Circuit that the Groff decision further bolsters Kluge’s case by accepting the view that certain reactions by co-workers are “off the table” in weighing whether a religious accommodation constitutes an undue hardship.
“A hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue,’” Alito said in his Groff opinion. “If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself.”
Lawyers for the Brownsburg school district did not respond to a request for comment.
The 7th Circuit will have to wrestle with the fact that students are not co-workers of Kluge, and that the purported hardship on the district of having to bend its policies for transgender students to accommodate a religious employee is not quite the same dollars-and-cents calculation in a request of a worker to skip work shifts on the Sabbath.
On Thursday, the 7th Circuit court asked both sides to file supplemental briefs in light of the Groff decision.
Supreme Court to consider whether employees can sue over job transfers under Title VII
The case the Supreme Court is taking up next term about when potentially discriminatory job transfers are covered by Title VII involves an issue that is more likely to come up in school districts than religious accommodations. Districts are large employers and must make thousands of decisions each year about where to assign administrators, teachers, and other personnel.
“This is a really important case for determining the scope of Title VII prohibitions on employment discrimination,” said Brianne J. Gorod, the chief counsel of the Constitutional Accountability Center, a progressive legal organization in Washington. “It has broad applicability in the education context.”
The case the court will hear next term, Muldrow v. City of St. Louis, involves a police department, though the briefs cite numerous related cases involving transfers of school employees.
Jatonya Muldrow was a sergeant in the St. Louis police department who worked nine years in its intelligence division and had once led the gun crimes unit. In 2017, her supervisor transferred her to a local police district, where she was assigned routine patrol and investigative duties. Muldrow’s pay remained the same, but the transfer resulted in a change in duties and workplace environment, such as the fact she had to wear a uniform instead of plain clothes.
The supervisor allegedly had referred to the intelligence work Muldrow had been involved in as “very dangerous,” and he replaced her with a male officer and transferred two other women out of the intelligence division. Muldrow was later denied a request to transfer to be a top administrative aide at police headquarters.
Muldrow sued for sex discrimination under Title VII, but lost in both a federal district court and the U.S. Court of Appeals for the 8th Circuit, in St. Louis. The appellate court held that Muldrow’s transfer was not an “adverse employment action” under Title VII.
“A transfer that does not involve a demotion in form or substance cannot rise to the level of a materially adverse employment action,” the 8th Circuit court said.
Briefs in the Supreme Court appeal discuss Title VII cases involving school employees
The briefs in the Supreme Court appeal discuss Title VII cases involving school employees, including several where the courts agreed there was no adverse action and thus no viable case under the federal statute, and others where the employee’s case was allowed to proceed.
In 1998, in Sanchez v. Denver Public Schools, the U.S. Court of Appeals for the 10th Circuit, in Denver, ruled that there was no adverse employment action when a district transferred a 4th grade teacher to a school farther from her home to teach 2nd grade because she was paid the same salary and benefits.
In 2016, in Stewart v. Union County Board of Education, the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, ruled that a Black school security officer transferred from a high school to a middle school did not suffer an adverse job action, despite his claims that the middle school position was less prestigious and did not offer the possibility of overtime pay.
But in 1980, in Rodriguez v. Board of Education of the Eastchester Union Free School District, the U.S. Court of Appeals for the 2nd Circuit, in New York City, held that an art teacher’s transfer from her longtime position at a junior high school to an elementary school interfered with a condition of employment. (The teacher alleged sex discrimination because the district had refused to transfer a less-senior male art teacher to the elementary school vacancy.)
In 2000, in Hinson v. Clinch County Board of Education, the U.S. Court of Appeals for the 11th Circuit, in Atlanta, allowed the suit of a female high school principal who was transferred to a central office position to proceed because lateral transfers resulting in “a loss of prestige and responsibility” were covered by Title VII.
Most recently, in a 2021 decision in Cole v. Wake County Board of Education, the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va., ruled against a Black middle school principal who challenged her transfer to a central office position as being motivated by racial bias. The appellate court affirmed a district judge’s ruling that despite the principal’s view of the transfer as a demotion that decreased her chances for advancement, other principals had been moved to central office positions without any loss of prestige.
The principal in that case appealed to the Supreme Court, but it denied review of the case without comment in 2021.
In urging the high court not to take up the principal’s case, the Wake County school district said, “Lateral transfers occur thousands, if not tens of thousands, of times a day, around the country across a variety of industries. Permitting personal preference to stand as the only measure of whether a lateral transfer constitutes an adverse action … would distort beyond recognition the meaning of ‘terms, conditions, or privileges of employment.’”
In the St. Louis police officer case, Supreme Court asked for Biden administration’s opinion
In the case involving the St. Louis police officer, the high court asked the Biden administration to weigh in. In a brief filed in May, U.S. Solicitor General Elizabeth B. Prelogar urged the justices to grant review of the case. She argued that the 8th Circuit’s requirement that a transfer result in a “materially significant disadvantage” did not square with the text of Title VII.
“By prohibiting discrimination relating to the terms, conditions, or privileges of employment, Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination,” the solicitor general said.
Prelogar discussed some of the transfer cases involving school employees, noting that the 11th Circuit’s Hinson decision conflicts with the 4th Circuit’s Cole ruling.
“Courts have reached inconsistent results as to whether plaintiffs challenging similar job transfers have an actionable [Title VII] claim,” she said.
The Supreme Court accepted the solicitor general’s recommendation to grant review in Muldrow, and the case will be argued sometime next term.
