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Reflections on Hosanna-Tabor — Justice Breyer’s statutory question

The oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. Perich last Wednesday raised a host of difficult and important questions — and a few misconceptions.  I hope to be able to post a few reflections on the argument here in the next few days, as a prelude to an upcoming “Community” discussion about the case here at SCOTUSblog.  [DISCLOSURE:  Goldstein & Russell filed an amicus brief in the case in support of respondent Cheryl Perich.  Some of the attorneys in that firm work in various capacities on this blog, but I do not represent any client in the case and I did not work on the case while I was at the Department of Justice — indeed, the Court granted cert. after I left DOJ.]

As many SCOTUSblog readers know, Hosanna-Tabor raises an important constitutional question that has been brewing in the courts of appeals for over four decades but that the Supreme Court itself is only now confronting for the first time.  In future posts I’ll discuss some of the difficulties associated with that constitutional question.  But first . . .

At oral argument, Justice Breyer appeared to be leaning toward what he called “a less dramatic kind of holding” — namely, one based on a statutory exemption in the ADA, rather than on the constitutional question presented.  If such a resolution were available, it surely would, as Justice Breyer stated at argument, “have the virtue of deciding a statutory question before a tough constitutional question.”  But there is a very good reason that throughout this litigation neither the EEOC, nor the school’s attorney, Doug Laycock, nor the court of appeals, nor any of the numerous amici in the case, have suggested a possible statutory resolution — namely, that the statutory exemption in question simply does not apply to this case, because Cheryl Perich’s claim alleges unlawful retaliation, rather than unlawful discrimination based on disability.

Here’s how the question arises:

Cheryl Perich suspected that the Hosanna-Tabor school was trying to pressure her to resign because of her narcolepsy, and therefore informed the school principal she was going to consult an attorney concerning whether the school was violating the Americans with Disabilities Act prohibition on disability-based discrimination.  The school then fired Perich, not on the basis of her narcolepsy, but because (according to the school itself) she had threatened to invoke civil remedies under the ADA to resolve her conflict with the school.  According to the school, Perich was required to adhere to a Lutheran religious tenet, based on First Corinthians (“Dare any of you, having a matter against another, go to law before the unjust, and not before the saints?”  “If then ye have judgments of things pertaining to this life, set them to judge who are least esteemed in the church.”), that some sorts of disputes — including, apparently, ADA disputes, as opposed to, say, contract and property disputes — must be resolved pursuant to the Church’s internal dispute resolution process, rather than before civil authorities.  Perich’s violation of this religious tenet, claims the school, justified her discharge, notwithstanding that enforcing that tenet in these circumstances is a textbook example of a violation of the ADA prohibitions on retaliating against, and coercing, employees for invoking their rights under the ADA — which provides, for example, that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual . . . participated in any manner in an investigation, proceeding, or hearing under [the ADA],” and that “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.”

The school argues that the First Amendment to the Constitution renders these retaliation prohibitions of the ADA unconstitutional as applied to an employee such as Perich.  Justice Breyer, however, suggested that the school doesn’t need such a constitutional exemption here, and that the Court therefore need not reach that issue, because a statutory exemption applies in this case.  He was referring to 42 U.S.C. § 12113(c)(1), which provides that “[u]nder this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.”

This “tenets” exemption, however, does not apply to the ADA’s retaliation/coercion prohibitions.  The tenets exemption by its terms applies “under this subchapter” of the ADA — namely, Subchapter I, which includes the basic prohibition on discrimination based on disability in employment.  (The exemption is admittedly an odd addition to this particular statute:  After all, what religious organizations have religious tenets that forbid employees from being disabled?  The legislative history is silent on the matter.  I have been told — but I do not know whether it is apocryphal — that the exemption was included at the behest of some organizations that have a tenet prohibiting homosexuality and that were concerned they would not be able to use an employee’s HIV status as evidence of violation of such a tenet.)

The ADA’s prohibitions against retaliation and coercion, however, appear not “under this subchapter,” i.e., in Subchapter I, but instead in Subchapter IV, and therefore are not subject to the tenets exemption.  Accordingly, Perich’s attorney, Walter Dellinger, was correct in stating at oral argument that “Congress expressly did not apply the religious exemptions of the ADA to retaliation [claims].”

Justice Breyer, however, apparently had already considered and rejected that argument:  “I don’t agree with that,” he replied to Dellinger:  “[Congress] put [the tenets exemption] in the section defining defenses.  The defenses are part of the right, and when it forbids retaliation, it says retaliation against an individual for the exercise of ‘any right granted.’  And therefore I don’t believe that a person who has failed to violate the substantive section could be [liable under the retaliation section].”

As a general matter, Justice Breyer’s shorthand is not quite right:  It is well-established in the courts of appeals that an employer can violate the retaliation/coercion prohibitions of the ADA even if it turns out that the underlying conduct about which the employee was complaining was not unlawful.  See, e.g.Wallace v. DTG Operations, Inc., 442 F.3d 1112, 1118 (8th Cir. 2006) (“In general, as long as a plaintiff had a reasonable, good faith belief that there were grounds for a claim of discrimination  *  *  *  the success or failure of a retaliation claim is analytically divorced from the merits of the underlying discrimination  *  *  * claim.”).  Justice Breyer was onto something, though — namely, the equally well-established rule that if an employee does not have a good-faith, reasonable basis for bringing (or threatening to bring) the substantive discrimination claim in the first instance, it is not unlawful for an employer to sanction the employee for acting upon such a ill-founded complaint.  See, e.g., Clark County School Dist. v. Breeden, 532 U.S. 268, 271–272 (2001) (per curiam) (where no reasonable person could have believed the incident in question constituted sex harassment violating Title VII, employee could not prevail on her retaliation claim).

Accordingly, Justice Breyer was correct insofar as he was suggesting that if the ADA “tenets” exemption had plainly foreclosed the substantive claim Perich threatened to bring to the EEOC’s attention, such that she was clearly not “oppos[ing] any act or practice made unlawful by [the ADA],” then firing her for that conduct would not have violated the anti-retaliation/coercion provisions because she would not have been exercising “any right granted” by the statute.

But that’s not what occurred here.  The school did not have a religious tenet prohibiting narcoleptics from teaching students; and therefore, as the case comes to the Court, Perich did have a good-faith, reasonable basis for threatening to go to the EEOC to complain of a case of substantive disability discrimination.  Accordingly, she did have a “right granted” by the statute to turn to the EEOC, and the anti-retaliation/coercion provisions in turn apply.  To be sure, the Establishment Clause requires the Court to accept Hosanna-Tabor’s representation that Perich’s turn to civil authorities itself violated the school’s religious tenet.  But Congress did not extend its “tenets” exemption to cover an employee’s good-faith invocation of her substantive ADA rights.  Therefore Justice Breyer’s proposed statutory fix is unavailing here, as even the school’s attorneys appear to acknowledge.  (Indeed, the ramifications of Justice Breyer’s reading would appear to be fairly dramatic:  If the ADA’s tenets exemption applied full-stop to church doctrines forbidding employees from invoking their federal rights before civil authorities, that would presumably mean that any church that construes Corinthians similarly to the interpretation of the Lutheran Synod would be entitled as a statutory matter to prevent all of its employees — not only “ministerial” employees — from exercising their statutory right to “oppose[] any act or practice made unlawful by [the ADA] . . . [and to] participate[] in any manner in an investigation, proceeding, or hearing under [the ADA].”  It’s difficult to imagine that Congress would have intended such a result.  And if, as all the parties agree, there is no real ambiguity in the statute, the constitutional avoidance canon “has no application.”

Therefore I expect the Court will resolve the case on constitutional, rather than statutory, grounds.  More on the constitutional question in the posts to follow.

Recommended Citation: Marty Lederman, Reflections on Hosanna-Tabor — Justice Breyer’s statutory question, SCOTUSblog (Oct. 11, 2011, 6:02 AM),