At the Intersection of Religious Organization Missions and Employment Laws: The Case of Minister Employment Suits

Reviewing the intersection of a religious organization’s right to select employees based on their goals and mission and modern employment law, this article argues that the analysis of the ministerial exception will depend on the type of suit brought. Specifically, the Article identifies five analytical categories: (1) employment discrimination/employment retaliation claims; (2) breach of employment contract claims; (3) whistleblower claims; (4) tort claims; and (5) miscellaneous claims. The Article begins by describing the ministerial exception and ecclesiastical abstention doctrines that exist under the First Amendment through the lens of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission. The Article then discusses case law development of ministerial/employment law conflicts pre and post Hosanna-Tabor. Next, the Article reviews five categorical approaches to resolving minister employment law suits. The Article concludes that judicial interpretations of the First Amendment in minister employment suits should provide as much room as possible for religious organizations to select their leaders free from governmental interference

SOX, Statutory Interpretation, and the Seventh Amendment: Sarbanes-Oxley Act Whistleblower Claims and Jury Trials

Section 806 of the Sarbanes-Oxley Act of 2002 prohibits a publicly-traded company from retaliating against an employee whistleblower who reports suspected corporate fraud to a company supervisor or to a governmental entity. The SOX whistleblower provision is unique in employment discrimination law in that Congress adopted a two-track civil enforcement system for whistleblowers. A complainant must initially pursue a claim in a Department of Labor administrative proceeding. The administrative proceeding involves a trial-like hearing before an administrative law judge and review of the judge\u27s decision by the Administrative Review Board. However, if the Department of Labor does not make a final decision on the claim within 180 days, the complainant may elect to file a de novo case in federal district court against the employer. Although SOX provides for an action to be brought in federal district court if the 180-day deadline is not satisfied, the statute does not specifically state whether a right to jury trial attaches to such an action. This article argues that the statute should be interpreted to imply a jury right for certain SOX actions in federal district court. If the courts do not imply the right, the Seventh Amendment nonetheless guarantees a jury trial in those actions

On The Edge: The ADA\u27s Direct Threat Defense and the Objective Reasonableness Standard

One of the most important issues under the Americans with Disabilities Act (ADA) is the appropriate standard for evaluating Title I employment disability discrimination cases where the employer argues that the employee has a medical condition that poses too much of a safety risk for the employee to work in a particular position. This is called the “direct threat” concept. In general, this permits an employer to discriminate against an employee on the basis of disability if the employee poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The federal courts of appeals are split on whether direct threat under Title I of the ADA is an affirmative defense that the employer must prove, or, alternatively, whether a qualified employee with a disability must prove that he or she can safely perform all essential job functions and is not a direct threat. This Article advocates for the treatment of the direct threat concept as an affirmative defense that the employer must prove. This Article further explains that proof of this defense does not require the employer to prove that its direct threat determination is “correct.” Instead, the law requires the employer to prove that its direct threat determination was “objectively reasonable.” Objective reasonableness often depends on the procedures that the employer uses to come to this conclusion. This Article also explains how the employer should take certain steps to better demonstrate that its direct threat determination was objectively reasonable. Finally, this Article explains how to apply the objective reasonableness standard when the employer is faced with conflicting medical opinions from qualified medical providers about whether an employee poses a direct threat in the workplace. The insights from the Article are applied to the summary judgment procedure and jury instructions in direct threat cases. In particular, it is hoped that this Article will help to reshape jury charges in direct threat cases

A Tale of Two Waivers: Waiver of the Jury Waiver Defense Under the Federal Rules of Civil Procedure

The thesis of this Article is that the Federal Rules of Civil Procedure, most specifically Rule 8(c), should be interpreted to require the jury waiver defense to be pled early on in the pretrial stage of litigation. The failure to plead the defense risks waiver. Part II of this Article expands upon the legal issues previously raised regarding the enforceability of a pre-dispute contractual jury waiver. Part III summarizes the basic rules regarding demanding a jury trial and defending against that demand under the Federal Rules of Civil Procedure. Part IV presents and explains the novel argument regarding the early deadline for raising the jury waiver defense under the Federal Rules, and establishes legal principles for determining whether the assertion of an untimely jury waiver defense waives the defense. Part V makes some final remarks

On The Edge: The ADA\u27s Direct Threat Defense and the Objective Reasonableness Standard

One of the most important issues under the Americans with Disabilities Act (ADA) is the appropriate standard for evaluating Title I employment disability discrimination cases where the employer argues that the employee has a medical condition that poses too much of a safety risk for the employee to work in a particular position. This is called the “direct threat” concept. In general, this permits an employer to discriminate against an employee on the basis of disability if the employee poses a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The federal courts of appeals are split on whether direct threat under Title I of the ADA is an affirmative defense that the employer must prove, or, alternatively, whether a qualified employee with a disability must prove that he or she can safely perform all essential job functions and is not a direct threat. This Article advocates for the treatment of the direct threat concept as an affirmative defense that the employer must prove. This Article further explains that proof of this defense does not require the employer to prove that its direct threat determination is “correct.” Instead, the law requires the employer to prove that its direct threat determination was “objectively reasonable.” Objective reasonableness often depends on the procedures that the employer uses to come to this conclusion. This Article also explains how the employer should take certain steps to better demonstrate that its direct threat determination was objectively reasonable. Finally, this Article explains how to apply the objective reasonableness standard when the employer is faced with conflicting medical opinions from qualified medical providers about whether an employee poses a direct threat in the workplace. The insights from the Article are applied to the summary judgment procedure and jury instructions in direct threat cases. In particular, it is hoped that this Article will help to reshape jury charges in direct threat cases

A Custom Fit: Tailoring Texas Civil Jury Selection Procedures to Case Tiers

Citizens serving on a civil jury are entrusted with making factual decisions about disputes that impact legal rights and remedies of litigants and set standards for the behavior of the public. Unfortunately, civil jury trials take place less frequently in twenty-first century Texas than in prior eras. Part of the justice system’s rejuvenation should involve a re-evaluation and improvement of the current process for selecting civil juries. Currently, the primary flaw in Texas jury selection procedures is the one-size-fits-all approach. Because some cases need twelve impartial jurors who are lay persons, and others require twelve people who are knowledgeable of the subject matter, the cookie-cutter approach to jury selection does not best serve the court or parties. Ideally, a tiered approach would outlaw peremptory challenges in some cases, grant flexibility to judges regarding use of peremptory challenges in other cases, and provide judges with discretion to use special juries in particular circumstances. Tier l would cover the less complicated small damages cases and would not allow jury shuffle or peremptory challenges—only challenges for cause. In Level II, the default level, random selection would still be important but not absolute. Jury shuffle would not be allowed, and while peremptory challenges would also not be allowed, either party could file a motion for peremptory challenges and attempt to convince the judge that peremptory challenges are appropriate. Level III selection would be completely tailored to the needs of the case. Trial judges could allow jury shuffle, would have broad discretion to allow peremptory challenges, and could permit a struck jury procedure. Trial judges would also have the discretion to seat an expert jury for a particular case. A variety of values shape current Texas civil jury selection procedures. The improved design is intended to stitch those values with case-specific patterns in the three-tiered framework. Carefully tailoring Texas jury selection procedures to individual cases will produce fairer, more efficient civil jury trials