Former Women's Team Goalkeeper Sues US Soccer for Equal Pay Act Violation

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Hope Solo, who was a goalkeeper for the US Women's National Team from 2000 to 2016, has sued the United States Soccer Federation, the official governing body for the sport of soccer in the United States. Her complaint, filed on August 24, 2018, in the United States District Court for the Northern District of California, charges that U.S. Soccer violated the Equal Pay Act, and Title VII by paying the members of the women's team less than it pays the members of the men's team. According to the complaint, the members of the women's team perform substantially equal or similar work, when viewed as a composite of skill, effort, and responsibility, and perform under similar working conditions, as the members of the men's team.

Courts applying the Equal Pay Act in the past have recognized that differences in exposure and prestige between men's and women's teams justify pay disparities in coaching jobs. In the most well-known case, the Ninth Circuit affirmed summary judgment for the University of Southern California in a case brought by its women's basketball coach, who was paid substantially less than the men's basketball coach. The court explained that the substantial difference in pay was justified in part by the difference in media attention and revenue generated by the two teams. Stanley v. University of Southern California, 178 F.3d 1069 (9th Cir. 1999). Although some female coaches have succeeded on Equal Pay Act claims (see Perdue v. City University of New York, 13 F.Supp.2d 326 (E.D.N.Y. 1998)), most have not. The EEOC published an enforcement guidance on the subject in 1997, which advised that pay disparities between male and female coaches were of concern.

Solo has a stronger case for equal pay than the women's coaches who lost their cases, because the Women's National Team has performed much better than the Men's National Team, and, at least according to her complaint, has generated substantially more revenue for U.S. Soccer.

Last year, U.S. Soccer entered into a new collective bargaining agreement with the players on the Women's National Team. A complaint alleging discriminatory pay practices that several of the players, including Solo, filed with the EEOC in 2016, remains outstanding. Both the agreement and the EEOC complaint may affect the individual lawsuit that Solo has filed.

The case has been assigned to United States Magistrate Judge Donna M. Ryu. Under the rules of the Northern District, the case will be assigned to an Article III United States District Judge, if the parties do not consent to Judge Ryu's continuing to handle the case.

The Northern District of California seems like an odd venue for the lawsuit. The complaint asserts that Solo is a resident of North Carolina, and that U.S. Soccer is chartered under New York law, with a principal place of business in Chicago. Although the complaint alleges that U.S. Soccer does "substantial business" in the Northern District, it does not explain what that business consists of. However, the federal venue statute (28 U.S.C. section 1391), provides that venue is proper where the defendant resides, or where substantial part of the events or omissions giving rise to the claim occurred. An entity like U.S. Soccer "resides," for purposes of the statute, in any district where it is subject to personal jurisdiction.

Personality Testing

Time Magazine has a cover story this week entitled "How High Is Your XQ?" which describes the current interest among employers in the use of personality tests to make hiring, promotion and termination decisions. The answers to test questions are supposed to reveal personalty traits that are correlated with success on the job. You may hear the area referred to as "people analytics." The providers of such testing include Hogan Assessment, Caliper, Prophecy Healthcare, Pegged Software, Gallup's StrengthFinder, and Infor.

Testing raises legal issues that employers need to be aware of before they put people analytics into practice:

Reasonable accommodation: The disability laws require employers to provide reasonable accommodations during the hiring process, to make sure that applicants are not screened out because of an inability to perform tasks that are not essential functions of the job. The EEOC's guidance on "Job Applicants and the Americans with Disabilities Act" gives this example: "An employer gives a written test to learn about an applicant's knowledge of marketing trends. Maria is blind and requests that the test be given to her in braille. An individual's knowledge of marketing trends is critical to this job, but the employer can test Maria's knowledge by giving her the test in braille. Alternatively, the employer could explore other testing formats with Maria to determine if they would be effective, for example, providing a reader or a computer version of the test."

Disparate impact: Testing may exclude people with certain protected characteristics, This is referred to as disparate impact. For example, in Griggs v. Duke Power Co., 401 U.S. 424 (1971) (the Supreme Court's seminal case on disparate impact), the employer's requirement that applicants have a high school diploma and submit to an intelligence test excluded a disproportionate number off African American applicants from consideration. Where a disparate impact on those with a protected characteristic is shown, the employer must that the testing is job-related and consistent with business necessity. Even if the employer can make that showing, the testing may still be unlawful if the employees can show that there is a less discriminatory alternative. The process for determining whether a test is job-related and consistent with business necessity is called validation. A group of federal agencies (including the EEOC) has developed Uniform Guidelines on Employee  Selection Procedures for use in making sure that testing has sufficient validity to survive scrutiny under the discrimination laws. For a discussion of applying the guidelines to Prophecy, see Legal Defensibility of the Prophecy Assessment, from Biddle Consulting (one of the partners in the development of Prophecy). For further information, see also the EEOC's fact sheet on "Employment Tests and Selection Procedures."

Supreme Court rules on Abercrombie's refusal to hire woman who wore headscarf

In EEOC v. Abercrombie & Fitch Stores, Inc., Case No. 14-86 (June 1, 2015), the United States Supreme Court ruled that Abercrombie was not entitled to summary judgment on a disparate treatment claim by a Muslim woman who was not hired because the headscarf she wore pursuant her religious obligations conflicted with the employer's dress code. The decision exposed a rare split between Justice Scalia (who wrote the 8-1 majority decision) and Justice Thomas (who dissented). The New York Times has reported that Scalia and Thomas agreed 91 percent of the time in decisions handed down through end of the 2013-14 term of the Court. (Comprehensive data on Supreme Court decisions is available from The Supreme Court Database.)

Abercrombie has a dress code (termed a "Look Policy") that prohibits the wearing of "caps" at work, because that is too informal for its desired image. When Samantha Elauf (a practicing Muslim who wears a headscarf) applied for a job at an Abercrombie store, an interviewer concluded that she was qualified for the job, but worried that her headscarf might conflict with the dress code. The district manager eventually directed the interviewer not to hire Elauf because her headscarf would violate the dress code.

The EEOC brought suit on Elauf's behalf in the District Court for the Northern District of Oklahoma, which granted summary judgment to the EEOC on liability, denied summary judgment to Abercrombie, and awarded $20,000 in damages after a trial. EEOC v. Abercrombie & Fitch Stores, Inc., 798 F.Supp.2d 1272 (N.D. Okla. 2011). The District Court rejected Abercrombie's claim of undue hardship if it had to accommodate the wearing of a headscarf, noting that it granted numerous exceptions to the Look Policy, and had recently granted eight or nine head scarf exceptions.

The Tenth Circuit reversed, and ordered the District Court to grant summary judgment to Abercrombie. EEOC v. Abercrombie & Fitch Stores, Inc., 731 F.3d 1106 (10th Cir. 2013). It arrived at that conclusion, because Elauf never specifically informed Abercrombie that wearing a headscarf was based on her religious beliefs, or that she would need an accommodation for that practice.

In reversing the Tenth Circuit's decision, the Supreme Court stated that Title VII's ban on religious discrimination focuses on the employer's motivation, not its knowledge. As Justice Scalia explained for the, "an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." Justice Thomas disagreed, arguing that the refusal to hire Elauf was a mere application of the "neutral" Look Policy, which did not rest on intentional discrimination: "Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf. Ante, at 2. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices."

The Court's decision was not a complete vindication for the EEOC. The case was sent back to the Tenth Circuit to determine whether the District Court's summary judgment for the EEOC was supported by the evidence. "On remand, the Tenth Circuit can consider whether there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge. The Tenth Circuit will also be required to address Abercrombie’s claim that it could not have accommodated Elauf ’s wearing the headscarf on the job without undue hardship."

U.S. Supreme Court adopts "but for" test for Title VII retaliation claims

In University of Texas Southwestern Medical Center v. Nassar, Case No. 12-484 (Jun. 24, 2013), the U. S. Supreme Court has directed courts to apply the "but for" test to retaliation claims brought under Title VII. This differs from the standard for assessing status-based discrimination claims that Congress enacted into 42 U.S.C. section §2000e–2(m). That section provides that a plaintiff may establish a case of discrimination based solely on proof that race, color, religion, sex, or nationality was a motivating factor in the employment action. If the employer proves that it would still have taken the same employment action in the absence of a discriminatory motive, it may avoid monetary damages and a reinstatement order.

The Court stated the "but for" test that will now apply to all Title VII retaliation claims as follows: "This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Justice Ginsburg's dissenting opinion explained the impact on plaintiffs: "When an event is 'overdetermined,' i.e., when two forces create an injury each alone would be sufficient to cause, modern tort law permits the plaintiff to prevail upon showing that either sufficient condition created the harm. ... In contrast, under the Court’s approach (which it erroneously calls 'textbook
tort law'), a Title VII plaintiff alleging retalia­tion cannot establish liability if her firing was prompted by both legitimate and illegitimate factors."

Employment Cases on the Supreme Court's 2012-13 Docket

U.S. Supreme Court Building

The U.S. Supreme Court's new term got under way on October 1, the first Monday in October. Here are the employment cases for which the Court has so far granted review. We will update this posting with developments in these cases and any other employment cases for which review is granted.

 Kloeckner v. Solis, No. 11-184. The question is whether the Court of Appeals for the Federal Circuit or a federal district court has jurisdiction over a discrimination claim if the Merit Systems Protection Board hears an appeal by a federal employee from an adverse action, without determining the employee's discrimination claim. On December 10, 2012, the Court unanimously ruled that the district courts have jurisdiction over such appeals. The Eighth Circuit decision that the Court reversed is available here. The case was argued on October 2, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here. [UPDATED 12/16/2012]

Vance v. Ball State University, No. 11-556. The question is whether an employer is strictly liable under Title VII for harassment by all those whom it vests with authority to direct and oversee their victim's daily work, or only those who have the power to "hire, fire, demote, promote, transfer, or discipline" their victim. The Seventh Circuit decision under review is available here. The case was argued on November 26, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

U.S. Airways, Inc. v. McCutchen, No. 11-1285. The case concerns the limits on the equitable relief that a court may award under ERISA to enforce the terms of an employee benefit plan. The Third Circuit decision under review is available here. The case was argued on November 27, 2012. The briefs filed in the case are available at the ABA's Supreme Court Preview site. A transcript of the oral argument is available here.

[ADDED 12/16/2012] Oxford Health Plans LLC v. Sutter, No. 12-135. The question is whether an arbitrator acts within his powers under the Federal Arbitration Act (as the Second and Third Circuits have held) or exceeds those powers (as the Fifth Circuit has held) by determining that parties affirmatively "agreed to authorize class arbitration," Stolt-Nielsen, 130 S. Ct. at 1776, based solely on their use of broad contractual language precluding litigation and requiring arbitration of any dispute arising under their contract. The Third Circuit decision under review is available here.

English Only Policies

Employers concerned about how their customers and other employees may react to the use by some employees of languages other than English may wish to impose an English only policy. The EEOC recently settled a case that involved allegedly improper language policies at a large hospital in California's San Joaquin Valley. The press release announcing the settlement is available here. Both state and federal law limit employers' ability to restrict use by their employees of languages other than English.

Under Title VII, English only rules may create liability for national origin discrimination. As explained in the EEOC's policy manual section on national origin discrimination, an English only rule must be justified by business in order to survive a Title VII challenge. The manual identifies the following as relevant considerations: Evidence of safety justifications for the rule, evidence of other business justifications for the rule, such as supervision or effective communication with customers, likely effectiveness of the rule in carrying out objectives, the availability of alternatives to an English only policy, and English proficiency of workers affected by the rule. Here is an example of an alternative from the manual:

"At a management meeting of XYZ Electronics Co., a supervisor proposes that the company adopt an English-only rule to decrease tensions among its ethnically diverse workforce. He reports that two of the employees he supervises, Ann and Vinh, made derogatory comments in Vietnamese about their coworkers. Because such examples of misconduct are isolated and thus can be addressed effectively under the company's discipline policy, XYZ decides that the circumstances do not justify adoption of a facility-wide English-only rule. To reduce the likelihood of future incidents, XYZ supervisors are instructed to counsel line employees about appropriate workplace conduct."

In California, English only policies may violate the Fair Employment and Housing Act as a form of national origin discrimination, just as they may violate Title VII. But, the FEHA also contains an express restriction on English only policies in California Government Code section 12951 (enacted in 2001), which bars any policy that "limits or prohibits the use of any language in any workplace," unless "(1) The language restriction is justified by a business necessity, (2) The employer has notified its employees of the circumstances and the time when the language restriction is required to be observed and of the consequences for violating the language restriction." Business necessity means "an overriding legitimate business purpose such that the language restriction is necessary to the safe and efficient operation of the business, that the language restriction effectively fulfills the business purpose it is supposed to serve, and there is no alternative practice to the language restriction that would accomplish the business purpose equally well with a lesser discriminatory impact."

Joint Employment

As we have pointed out in previous posts (One Worker, Two Related Employers, Who Is The (An) Employer), there may be more than one person involved on the employer side of an employment relationship. If each of those persons has enough control, a joint employment relationship may be created. Here, we examine the concept in the context of three statutory schemes: Title VII, the Fair Labor Standards Act, and the Family and Medical Leave Act.

Title VII

The federal employment discrimination statute defines employer as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year," and employee as "an individual employed by an employer." 42 U.S.C. section 2000e. It does not define employ. However, the federal courts have made clear that there is no liability under Title VII unless there is an employment relationship between the "employee" plaintiff and the "employer" defendant. To determine whether there is a sufficient relationship, the courts evaluate a number of factors.

The EEOC lists the following factors in its Compliance Manual: (1) The employer has the right to control when, where, and how the worker performs the job; (2) The work does not require a high level of skill or expertise; (3) The employer furnishes the tools, materials, and equipment; (4) The work is performed on the employer's premises; (5) There is a continuing relationship between the worker and the employer; (6) The employer has the right to assign additional projects to the worker; (7) The employer sets the hours of work and the duration of the job; (8) The worker is paid by the hour, week, or month rather than the agreed cost of performing a particular job; (9) The worker does not hire and pay assistants; (10) The work performed by the worker is part of the regular business of the employer; (11) The employer is in business; (12) The worker is not engaged in his/her own distinct occupation or business; (13) The employer provides the worker with benefits such as insurance, leave, or workers' compensation; (14) The worker is considered an employee of the employer for tax purposes; (15) The employer can discharge the worker; (16) The worker and the employer believe that they are creating an employer-employee relationship. See, EEOC Compliance Manual, section 2-III-A-1. The U.S. Supreme Court endorsed the manual's approach in Clackamas Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 (2003).

For a case that applied the concept to a disability discrimination claim, see Bristol v. Bd. of County Comm'rs, 312 F.3d 1213 (10th Cir. 2002). There, the 10th Circuit held that, under Colorado law, the County Board of Commissioners did not have sufficient control over sheriff's department employees to be considered a joint employer with the sheriff.

Fair Labor Standards Act

The FLSA defines employer to include "any person acting directly or indirectly in the interest of an employer in relation to an employee." Employee means "any individual employed by an employer." Employ includes "to suffer or permit to work." 29 U.S.C. section 203. The Department of Labor's regulations add that these definitions look to "economic reality" rather than "technical concepts." 29 CFR 784.8. The analysis is similar to that used to decide who is protected under Title VII. See Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999). The Department of Labor also has regulations that speak specifically to joint employment under the Fair Labor Standards Act. 29 CFR 791.1 and 791.2.

The Third Circuit recently discussed the test for joint employer status under the Fair Labor Standards Act in the context of a holding company providing shared services to its subsidiaries in In re Enterprise Rent-a-Car Wage and Hour Employment Practices Litigation, 2012 U.S. App. LEXIS 13229 (3d Cir. June 28, 2012). For a discussion of joint employment in the context of an attempt by prisoners to hold state officials responsible for FLSA violations, see Gilbreath v. Cutter Biological, Inc., 931 F.2d 1320 (9th Cir. 1991).

Family and Medical Leave Act

The FMLA expressly adopts the definitions of the FMLA. See 29 U.S.C. section 2611. The Department of Labor has a regulation that addresses the joint employment relationship, and its effect on FMLA requirements. See 29 CFR section 825.106.

For a case that applied the concept to an FMLA claim, see Moreau v. Air France, 356 F.3d 942 (9th Cir. 2004), where the Ninth Circuit affirmed a federal district court's ruling that Air France was not a joint employer with the entity that supplied ground handling services.

UPDATE [8/22/2012]

A recent decision from the United States District Court in Oregon illustrates the high stakes involved in a decision about who the employer is. A plaintiff who alleged that his priest molested him sued the Holy See itself, claiming that the Vatican was the priest's employer. On August 20, 2012, United States District Judge Michael Mosman ruled that the evidence did not establish enough control by the Vatican to render it the priest's employer. Doe v. Holy See, Case No. 02-CV-00430 (U.S. Dist. Ct. Ore. 8/20/212). In March 2009, the Ninth Circuit had ruled that the plaintiff's claim of respondeat superior liability for the priest's actions was not barred by the Foreign Sovereign Immunities Act. Doe v. Holy See, 557 F.3d 1066 (9th Cir. 2009).

Religious Institutions and Anti-Discrimination Laws

A recent decision from the Santa Ana division of the Fourth District Court of Appeal prompts a look at how the anti-discrimination laws apply to religious institutions. In Henry v. Red Hill Evangelical Lutheran Church of Tustin, No. G044556 (Dec. 9, 2011), the Court of Appeal affirmed the dismissal of a discrimination claim by a teacher at a church school who had been fired for living with her boyfriend and raising their child together without being married.The application of federal anti-discrimination laws to religious institutions is before the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553.

The applicable state law is the California Fair Employment and Housing Act. The applicable federal laws are Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. They deal with the issue in different ways.

The FEHA by its express terms does not apply to religious organizations at all. Under California Government Code section 12926(d), "'Employer' does not include a religious association or corporation not organized for private profit." Section 12926.2 contains exceptions to the exclusion for those employed in religious health care facilities that do not limit their care to those of a particular religion (but not including those in executive or pastoral care positions) and those employed by a nonprofit public benefit corporations affiliated with a particular religion that operates an educational institution as its sole or primary activity. Otherwise, a church or other religious institution cannot be held liable under the FEHA no matter what the employee's duties or what the basis for alleged discrimination. See, for example, Kelly v. Methodist Hospital of Southern California, 22 Cal.4th 1108, 997 P.2d 1169, 95 Cal.Rptr.2d 514 (2000) (age discrimination).

In contrast, the federal statutes allow religious organizations to give employment preference to members of their own religion, but otherwise prohibit employment discrimination. Thus, a Roman Catholic school may limit its hiring those of the Roman Catholic faith, but may not refuse to hire a Roman Catholic because of race, national origin, sex, or disability. The federal Courts of Appeals have also recognized a ministerial exception to application of the anti-discrimination laws based on the First Amendment. The EEOC has explained both principles in Questions and Answers: Religious Discrimination in the Workplace. In the Hosanna-Tabor Evangelical Lutheran Church and School case, the Supreme Court recognized the ministerial exception and applied it to bar a claim under the Americans with Disabilities Act.

Lack Of Security Clearance Does Not Justify Discrimination

The Ninth Circuit has ruled that lack of a security clearance cannot be used as a shield for discrimination. The usual McDonnell Douglas burden shifting approach applies.

In Zeinali v. Raytheon Co., No. 09-56283 (9th Cir. Apr. 4, 2011), Hossein Zeinali, who was of Iranian descent, worked as an engineer for Raytheon for four years. Raytheon had told him that his continued employment was contingent on obtaining a "secret" level security clearance. Although Zeinali's request for an interim clearance was rejected, Raytheon retained him while a final clearance decision was pending. During that period, he received positive feedback about his job performance. After the Department of Defense finally denied Zeinali's request for a security clearance, Raytheon discharged him. Zeinali pointed out that two non-Iranian engineers without security clearance were retained after he was discharged.

In Brazil v. U.S. Department of the Navy, 66 F.3d 193 (9th Cir. 1995), the Ninth Circuit had ruled that federal courts could not review security clearance decisions in a Title VII discrimination action. "[T]he grant of a security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch." However, where, as in the Zeinali case, the plaintiff does not question the judgment call to deny clearance, the Brazil reasoning does not apply. Zeinali accepted the denial of a security clearance, but argued that the security clearance was not a bona fide job requirement. Because he provided evidence that Raytheon retain non-Iranian engineers without security clearances, his claim should have survived summary judgment. That was sufficient for a reasonable factfinder to be able to find that the lack of a security clearance was a pretext for national origin discrimination.

Liability For Bullying And Microinequities

Over the past few years, workplace bullying and microinequities not obviously based on protected characteristics have received much attention. Although the California Workers' Compensation Act preempts civil lawsuits for such claims unless a recognized exception to preemption applies, such conduct can pose liability risks. Such matters have been the subject of law firm commentary and an entire website.

The Workers Compensation Act preempts claims by an employee against the employer or a fellow employee for any injuries (including emotional injuries) that arise out of the employment relationship, even if based on conduct that is "manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability." See Cole v. Fair Oaks Fire Protection Dist., 43 Cal.3d 148 (1987).

The Act itself expressly exempts some injury claims from preemption, such as those resulting from a willful and unprovoked physical act of aggression of another employee (Labor Code section 3603(a)(1)) and from failure to install or removal of a guard on a power press (Labor Code section 4558). The courts have determined that claims based on other conduct may survive preemption if the conduct contravenes fundamental public policy or exceeds risks inherent in employment relationship. See Livitsanos v. Superior Court, 2 Cal.4th 744 (1992). The most important court-created exceptions are for claims under the anti-discrimination laws, and for wrongful termination in violation of public policy. See City of Moorpark v. Superior Court, 18 Cal.4th 1143 (1998) and Shoemaker v. Myers, 52 Cal.3d 1 (1990).

Although these principles would appear to severely limit liability, the reality is that the plethora of protected characteristics in the anti-discrimination laws and the multitude of public policies that can provide a basis for wrongful termination claims make almost any workplace unpleasantness a potential source of civil liability.

If an employee treats female employees unpleasantly, but is neutral to male employees, there may be a sexual harassment claim, even if the conduct is not expressly based on sex. See EEOC v. National Educ. Ass'n, Alaska, 422 F.3d 840 (9th Cir. 2005). An employee who appears equally abusive to all will create liability for an unlawful hostile environment by letting one epithet slip, even though a single epithet alone would not create liability. See Dee v. Vintage Petroleum, Inc., 106 Cal.App.4th 30 (2003) ("it is your Filipino understanding versus mine" created liability for harassment when combined with other abusive behavior).

To limit the risk of liability for hostile environment claims, the employer must intervene when an employee makes life unpleasant for other employees. Any such situation may turn into an unlawful harassment claim. Preventing unpleasant conduct will also make the workplace more comfortable for all, and promote employee productivity.

Religion in the Workplace

Employees do not leave their religious beliefs behind when they go to work. But, those beliefs seldom matter to employers or fellow employees. Where religious beliefs affect dress or appearance, there may be an impact in the workplace. There may be conflicts with the employer's practices and policies or with other employees. Religious beliefs may also have an effect when employees practice their religious beliefs at work. Both Title VII and the California Fair Employment and Housing Act forbid discrimination based on religion, and require employers to accommodate their employees' religious beliefs.

This is what happened in one workplace. A female former software developer sued the defendant temporary employment agency claiming religion discrimination in violation of Title VII. The plaintiff alleged that the defendant denied her promotions because she was not a member of a religious group that the other employees belong to. The plaintiff further alleged that in a period of four years there were five management positions for which she was qualified and that four of those positions went to members of that religious affiliation. The defendant denied the allegations and claimed that the fellowship was not a religion, but a philosophical group and that the plaintiff was not a good choice to boost morale within the software group. The jury awarded the employee $647,174 in emotional distress damages, and $5,900,000 in punitive damages. Noyes v. Kelly Services, Case No. 2:02-cv-02685 (E.D. Cal. April 2008). Read the Ninth Circuit Court of Appeals decision that ordered the case to go to trial here.

Another case illustrates the circumstances under which an employer may limit an employee's practice of her religion at work. A student intern at at the Department of Children and Family Services handed out religious literature during her internship hours at the Department and shared her religious views with colleagues. After becoming concerned that the employee would not be able to separate her religious beliefs about homosexuality and abortion from her work with clients, the Department had the University to place plaintiff in a different internship at another agency. The jury agreed that the employer was right to have the intern placed in a different agency. Escobar v. Los Angeles County Department of Children and Family Services, Case No. CV060917 (C.D. Cal. April 10, 2007).

For further information on employer obligations with respect to religion, consult these sources:

1. Questions and Answers: Religious Discrimination in the Workplace (EEOC)
2. Best Practices for Eradicating Religious Discrimination in the Workplace (EEOC)
3. "Religion" portion of Case Analysis Manual (DFEH)