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A jury will determine whether an unmarried pregnant teacher was fired from a church school due to discriminatory motives on the part of her employer or a protected religious doctrine opposing fornication. Eastern District Judge Dora L. Irizarry refused to grant summary judgment to the Linden Seventh-day Adventists School, which wanted to end the Title VII lawsuit brought by teacher Jewel Redhead. Judge Irizarry’s decision in Redhead v. Conference of Seventh-day Adventists, 03-CV-6187, dealt with the “ministerial” exception to Title VII, which holds that, in some situations, religious institutions are shielded from liability under employment discrimination statutes. In July 2006, Judge Irizarry denied the school’s motion for summary judgment, finding that neither the First Amendment, the ministerial exception nor the Religious Freedom Restoration Act barred the court from considering Ms. Redhead’s claim. The federal act provides in part that the government may “substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to a person (1) is in furtherance of a compelling governmental interest; and (2) is the “least restrictive means” of furthering that interest. At the time of her July 2006 opinion, the judge said, the U.S. Court of Appeals for the Second Circuit had yet to explicitly reject or adopt the ministerial exception. In Hankins v. Lyght, 441 F. 3d 96 (2006), in the context of an age discrimination case, the circuit declined to apply the ministerial exception and instead sent the case back to the Eastern District for examination of the claim under the Religious Freedom Restoration Act ( NYLJ, Feb. 21, 2006). On remand, Judge Denis R. Hurley said allowing a suit to challenge a church’s mandatory retirement age would run afoul of that statute ( NYLJ, Oct. 10, 2007). With Hankins as a guide, Judge Irizarry then found that Ms. Redhead had raised an inference of illegal discrimination but the church had rebutted that presumption by offering a legitimate, non-discriminatory reason for firing her: that she failed to abide by church doctrine forbidding fornication as a “grievous sin.” With the issue up in the air over whether Ms. Redhead had been fired because of her gender and pregnancy or whether she had been fired “because of an evenly applied religious code,” the parties prepared for trial. In March, just before the trial was to begin, the Second Circuit issued Rweyemamu v. Cote, 520 F.3d 198 (2008). In Cote, the circuit said the Religious Freedom Restoration Act did not apply because the defendants had waived it. Instead, the circuit was forced to return to the ministerial exception, which it formally adopted for the first time ( NYLJ. March 25). The Reverend Justinian Rweyemamu, a black priest, charged that the Roman Catholic Church misapplied Canon Law by denying him a promotion and then firing him based on his race. The circuit found that the lawsuit was easily barred by the exception. The circuit took pains to note the importance of courts staying out of doctrinal disputes and said that, under the First Amendment, judges should look to both the “function” of employees – as opposed to their titles or the fact of their ordination – and “the type of claim asserted.” Once Cote was issued, the Seventh-day Adventists argued again that Ms. Redhead’s suit was barred because the ministerial exception was now more broadly defined and Title VII plaintiffs can no longer charge that a dismissal was pretextual if the employer based it upon religious grounds. Judge Irizarry disagreed. “Although the court agrees that Cote clarified the ministerial exception, and demonstrated that the exception applies to plaintiff in the sense that it prevents her from questioning the validity of defendant’s religious code, the court does not read Cote to prevent plaintiff from attempting to prove that the code was applied to her in a discriminatory manner,” Judge Irizarry said. She also said that, while some statements in Cote can be read to foreclose a ministerial employee from challenging a stated religious motive, “nothing in that decision, nor in the cases that preceded it, supports a similarly absolute prohibition to secular employees such as plaintiff.” Based on the record, she said, Ms. Redhead’s function at the school was “primarily secular.” She then went on to find that, unlike the Cote fact-pattern, Ms. Redhead’s case did not pose a risk of “excessive entanglement” in religious affairs because it did not involve favoring a “certain interpretation of religious doctrine.” Finally, nothing in Second Circuit case law, Judge Irizarry said, persuaded her that a jury should not be allowed to explore whether church doctrine was used as a pretext to discriminate against Ms. Redhead. Judge Irizarry then denied the church’s motion to pursue an immediate appeal to the circuit. Trial in the case is set to begin in August. Rick Ostrove of Leeds Morelli & Brown represented Ms. Redhead. Ross Weaver of Molod Spitz & DeSantis represented the church.

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