Wednesday, November 19, 2014

You can't claim employment discrimination if you're not employed

There is often a lot of misunderstanding about the protections that we have. For example, as I noted in an August 2013 post, there is no Constitutional or Federal protection that prevents a private employer from firing an employee because of his or her political views.

Michael Italie was fired by Goodwill Industries in 2001 because he was running for mayor of Miami on the Socialist Workers Party ticket. Italie quickly discovered that while he couldn't be fired for his religious views, and while a government employee couldn't be fired for his or her political views, a private employer could very easily be fired for political views.

So if you're a passionate Republican who wants to work for George Soros, don't bother.

However, religion is clearly protected by Federal and state law, and you can't fire someone because of his or her religious beliefs.

Or can you?

Take the case of Michael Marie and Mary Cabrini, two nuns who are members of the Order of the Missionaries of the Sacred Heart. If you think that all Roman Catholics have identical beliefs, think again. These nuns believe that Vatican II was a mistake, and that the Mass should not have been changed.

Anyway, these two sisters volunteered with both the Red Cross and the Ross County Emergency Management Agency. In both of these organizations, a woman named Mary McCord holds high executive position. McCord is Catholic, but is not a traditionalist Catholic.

The two nuns claim that McCord not only prevented them from being promoted, but also fired them from the Ross County Emergency Management Agency.

Assuming that McCord orchestrated these job actions for religious reasons, this initially sounds like a clear case of religious discrimination, where two people suffered employment discrimination because of their religious beliefs.

Well, there's only one little problem - since the two were volunteers and not employees, there was no such thing as employment discrimination, according to the 6th Circuit:

"The Red Cross and RCEMA not only did not provide a regular salary to the Sisters, but they also did not provide them with traditional benefits such as medical, vision, or dental insurance. As these types of benefits are often present in the employment relationship, their absence also weighs against a finding that the Sisters were employees," U.S. Circuit Judge Gregory Van Tatenhove said, writing for the three-judge panel....

"Even if RCEMA and the Red Cross would have threatened to sever their volunteer relationship with the Sisters upon their refusal to adhere to a set schedule or to accept the tasks given them, this does not necessarily show that the agencies exercised any real control over the Sisters. Unlike most employees, the Sisters are not economically reliant on RCEMA or the Red Cross in any real or measurable way," since they receive all living expenses from their order, the 28-page opinion states.

Full case here.

Now it's quite possible that this could be overturned on appeal, or that a different court may reach a different conclusion in a similar case. But for now, it appears that you have to actually be an employee to suffer employment discrimination.
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