Monday, January 22, 2018

Cole v. Cobb County School District: Does the transfer of an assistant principal because parents believe she is a Buddhist violate Title VII?

This is the sad story of Bonnie Cole, an assistant principal at a Georgia elementary school, who only wanted to do right by the children under her care.

Cole, a practicing Christian, was the assistant principal at Bullard Elementary School, where she introduced "mindfulness" practices, including "piping music through the hallways," "decorating and painting," "yoga sequences," and "mindful quiet time." According to Cole, after implementing mindfulness practices, she documented a one-third decrease in disruptive behavior and policy violations. Nonetheless, these new practices did not sit well with many parents. Cole alleged that she was accused of being a Buddhist and trying to indoctrinate children into Buddhism (not that I think there's anything wrong with Buddhism); that several parents held a rally on the school grounds praying for "Jesus to rid the school of Buddhism," and the next day two women stood outside Cole's office, praying with their hands on her windows; and community members posted misleading messages about Cole's private business website and her "evil practices," forcing her to take the website down. Because of the controversy, the school district decided to move Cole to another school that was 16 miles farther from her home and that was allegedly lower-performing, offering fewer academics, athletics, and extra-curricular activities than Bullard.

Was this decision wrong? Almost certainly. But was it also, as Cole alleged, unlawful religious discrimination in violation of Title VII? Federal District Court Judge William Duffey thought not, dismissing Cole's Title VII claim against the Cobb County School District in his decision, 1:17-cv-1378-WSD-AJB, of January 18, 2018. But, as discussed below, I think Cole has a solid claim, and if she appeals, the Eleventh Circuit may very well reverse.

Discrimination Based on Perceived Religion

In her complaint, Cole alleged that she was subjected to "reverse religious discrimination." Generally, when an employer is accused of "reverse discrimination," it refers to alleged discrimination against someone who is white, male, or a member of another group that is not usually subjected to discrimination. Cole clearly was not alleging reverse discrimination in this sense. Instead, Judge Duffey construed Cole's complaint as alleging that she was transferred because she was mistakenly perceived as being a Buddhist. Judge Duffey concluded that a "perceived claim" is not covered by the plain language of Title VII.

It is unclear whether Title VII prohibits discrimination based on the misperception that someone is a member of a certain group. In both its Compliance Manual Section on Race and Color Discrimination and its Enforcement Guidance on National Origin Discrimination, the EEOC takes the position that it is unlawful to discriminate against someone based on the perception that he is a member of a certain protected group even if the perception is incorrect. Judge Duffey declined to give any weight to the EEOC's position because it had not taken the same position in its guidance on religious discrimination. I don't know why the EEOC did not explicitly address misperception discrimination with respect to religion, but the same analysis that applies to race and national origin also must apply to religion, so the EEOC guidance clearly supports Cole's position.

As for the statutory language, I agree with Judge Duffey that Title VII, on its face, does not appear to prohibit misperception discrimination. The relevant provision states that it is unlawful to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." The term "such" clearly refers to the particular individual subjected to discrimination. If the statute omitted "such individual's," then the argument for covering misperception discrimination would be much stronger.

While the lower courts have gone both ways, the Supreme Court's recent decision in EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), suggests that misperception discrimination is not covered. In particular, the Court stated that an employer violates Title VII if it refuses to hire a job applicant because: (1) the employer believes, though it does not know, that the applicant is an Orthodox Jew and would require Saturdays off to observe the Sabbath; and (2) the applicant actually requires the accommodation. If prong (2) is required for a plaintiff to have a claim of religious discrimination under Title VII, then it appears that a plaintiff would not have a claim if the employer was motivated by a mistaken perception about protected status. 

Discrimination Based on Religious Objections to Mindfulness

Alternatively, Cole may be alleging that she was transferred based on the school community's religious objections to mindfulness practices. In EEOC v. United Health Programs of America, Inc. and Cost Containment Group, Inc., No. 14-3673 (KAM)(JO) (E.D.N.Y. Sept. 30, 2016), District Court Judge Kiyo Matsumoto entertained a similar kind of claim. There, the EEOC alleged that the defendant engaged in "reverse religious discrimination" by subjecting unwilling employees to a program called Onionhead or Harnessing Happiness, which the EEOC argued was a form of religion. As I explained in a prior post, however, I think Judge Matsumoto's decision was mistaken since the EEOC did not allege that Onionhead, even if the defendant viewed it as religious, discriminated against employees who objected to it based on those employees' religion. Moreover, imposing liability under such circumstances would violate the First Amendment's Free Exercise Clause since an employer would be free to adopt an employee program for secular reasons while another employer could not adopt the same program for religious reasons.

Failure to Conform to Christian Beliefs

Another way to look at Cole's claim of "reverse religious discrimination" is that she has been treated adversely not because she is a particular religion but because she is not a particular religion. According to Cole, she was treated adversely because she acted in a way that was inconsistent with being Christian. This strikes me as a strong claim. Just as it is unlawful to treat someone badly for being Christian, it is also unlawful to treat someone badly for not being Christian. Judge Duffey perfunctorily rejected this claim, explaining merely that there was no controlling precedent supporting a "failure to conform claim based on a perceived religion." Based on this characterization, Judge Duffey conflated the concept of discrimination based on the misperception of being a Buddhist with the concept of discrimination based on not being Christian. The latter is covered regardless of whether misperception discrimination is also covered. If Cole was treated adversely for not being a certain kind of Christian, then her Title VII rights were violated, regardless of whether she was perceived as being a Buddhist, an atheist, or a poor Christian.

Discrimination Based on Community Perceptions of Cole's Religion

Finally, Judge Duffey faulted Cole for failing to show that the defendant treated her differently based on its own perception of her religious beliefs, which Duffey described as an "aberration of a 'cat's paw' theory." The cat's paw theory is used to hold an employer liable where the final decisionmaker is not biased but relies on the biased input of another individual. In most cases, the biased individual is a supervisor or other agent who is providing input based on official authority. But an employer is also liable (as discussed here) if the biased individual is not an agent where the decisionmaker knows or should have known that the individual providing the input is biased. Similarly, if an employer decides not to take action to correct sexual harassment, it can be liable even it was not motivated by bias. For example, it might have a policy of not addressing conduct between coworkers. Even so, the employer could still be liable for not addressing harassment that it knew was based on sex. Likewise, an employer can be liable if it treats an employee adversely based on the religious bias of members of the larger community as long as the employer is aware of that bias.

In addition to alleging Title VII violations, Cole alleged that the defendant violated the Establishment Clause of the First Amendment by adopting the religious perspective of parents who objected to mindfulness practices. This is the only one of Cole's claims that Judge Duffey declined to dismiss.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.