Imagine that after years of work, you're abruptly fired from your job, seemingly without just cause, because you suffered a stroke. Or because you contracted HIV. Or because—the most heinous of workplace crimes—you decided to have a baby.
It would be illegal, right? As most people know, the Washington State Law Against Discrimination (WLAD) broadly protects employees from being discriminated against on the basis of their age, gender, sexual orientation, marital status, race, creed, color, national origin, military status, or presence of any sensory, mental, or physical handicap.
But what most people don't realize is that the law doesn't protect all employees. There's a hole in our state's antidiscrimination law—a giant, Jesus-shaped hole—that exempts religious not-for-profit organizations from honoring it. The exemption simply reads "'Employer'... does not include any religious or sectarian organization not organized for private profit." It's there to preserve our government from meddling in acts of religious freedom, such as the Catholic Church's right to exclude atheists and womenfolk from being ordained.
But the broad exemption has unintended consequences: Aside from church groups, it excuses religious nonprofits like schools, universities, hospitals, and even credit unions from honoring the antidiscrimination law. Moreover, it grants them the legal protection to discriminate in areas totally unrelated to their religious practices or ethical beliefs.
It also allows them to hypothetically fire security guards for being too old, doctors too black, or nurses too lesbian. And it appears that the state's largest religious hospitals, at least, are taking advantage of the exemption, as is their legal right. This isn't just a Washington State problem—lawsuits filed in San Diego, Cincinnati, and Springfield allege that Catholic organizations have fired women for being pregnant while unmarried, for using in vitro fertilization to become pregnant, even for engaging in premarital sex.
"These are not little church community groups we're talking about," stresses Dan Johnson, an employment and labor attorney in Seattle. "It's unfair for them to be able to claim religious exemption." As Johnson and other lawyers have argued, regardless of an organization's affiliation, there's nothing inherently religious about being employed as a janitor or a teacher, or about getting stitches in an emergency room. "They shouldn't be able to discriminate at will just because they have some roots in the Catholic Church generations back."
Several years ago, Johnson sued Providence Regional Medical Center Everett for gender discrimination on behalf of a nurse who claimed she was unfairly terminated from her job after taking maternity leave. Providence cited its religious exemption, and the court sided with Providence.
The Catholic-affiliated Providence Health & Services is currently the sixth largest health-care system in the nation and employs nearly 34,000 people in Washington, according to IRS documents obtained by the ACLU of Washington. Franciscan Health System, also Catholic, employs more than 9,000 people. PeaceHealth employs more than 13,000 people and also has loose ties to the Catholic Church. This makes them formidable employers: All together, these hospitals and their affiliates could soon control 47 percent of all the hospital beds in our state.
And again, these are employers with a legal loophole to discriminate against their employees.
The ACLU has tracked at least 10 lawsuits alleging employer discrimination against religious hospitals in the Washington State Supreme Court and Court of Appeals in the last decade. These lawsuits all share something in common: their defense.
"We have seen religious hospitals avoid their responsibility to treat employees fairly and without discrimination by successfully asserting in lawsuits that they are not covered by the state statute (or WLAD)," explains Sarah Dunne, an ACLU lawyer tracking such cases in Washington State.
In other words, religious hospitals don't deny that their employment practices are discriminatory, because they don't need to. They never have to be put in the position of denying discrimination, because they raise the defense that they are exempt from the statute right out of the gate.
Why don't ex-employees simply file discrimination lawsuits in federal court, you ask? One reason is that the WLAD offers broader protections than the 1964 Civil Rights Act or the Americans with Disabilities Act. For instance, federal law does not include gays and lesbians as a protected category, whereas the state law does protect sexual orientation and gender identity and expression.
Unless, of course, you're employed by a nonprofit religious organization like Providence.
"It is outrageous that an institution that seems to hold itself to high ethical standards would seek to exclude itself from the antidiscrimination laws," says Randy Gordon, a former state senator and lawyer who filed a discrimination lawsuit against Providence Regional Medical Center Everett last month in King County Superior Court. "But that's what we're seeing."
Gordon's client is a soft-spoken former marine and surgical technician whom we'll call Humphry. He'd worked as a surgical tech for six years, including a year at Providence Everett, when just before Christmas in 2010, Humphry was diagnosed with non-Hodgkin's lymphoma and HIV. (I've changed his name to afford him some privacy, given his medical status.) Humphry did the noble thing and immediately notified his employer, Providence Everett, that he was HIV-positive. To be clear, he volunteered his private medical information because he felt it was the responsible thing to do. He had glancing contact with patients, but his job mostly consisted of setting up surgical instruments, passing them to surgeons during surgery, and maintaining a sterile environment in the operating room (during which he was suited up in double gloves, a mask, goggles, and a smock).
Humphry appeared to be a model employee. Before revealing his HIV status, the 48-year-old "had no disciplinary action taken against him for any reason" at Providence or at any of his five previous employers, according to his lawsuit.
But that soon changed.
Humphry explained to his bosses that his viral load was in the "undetectable" range, meaning transmission is very unlikely. But after revealing his HIV status, he was immediately reassigned while the hospital drafted new protocols for his job, according to the lawsuit. Humphry was only allowed to resume full-time operating-room duties nine months later, after agreeing to a set of onerous job accommodations, including repeated, unnecessary HIV tests. And those private medical tests were apparently fit for public discussion: "Every day I would hear something [from my bosses] about my viral loads. This was all being done before other employees and other staff," Humphry says when I reach him by phone. "Everyone eventually found out I was HIV-positive. They treated me different for it."
Asked about this allegation, Providence spokeswoman Melissa Tizon says, "While we are saddened by his medical condition, his claims against Providence are simply untrue. During the legal proceedings, we intend to present the facts, which show he was treated respectfully, professionally, and fairly during his employment with Providence. In addition, employee confidentiality is a responsibility Providence takes very seriously, and our case will demonstrate that the management of our Surgery Department was very careful to respect this individual's privacy."
Two days after returning to the operating room in September 2011, Humphry received his first-ever reprimand for not wearing safety goggles. He felt singled out.
"I wasn't working, I was teaching," Humphry explains. "There were others in the room who weren't wearing goggles and who weren't [reprimanded]."
Providence declined to comment on this allegation.
Four days later, Humphry was suspended for "failing" to provide his bosses with his viral load numbers. But as the lawsuit states, "In fact, Humphry had dutifully obtained the appropriate testing for viral load the day before, which showed a viral load in the 'undetectable' range." His results were available via a simple telephone call to his treating physician. However, the lawsuit states, "Despite Humphry's request that Providence do so, and authorization to communicate directly with his physicians, [Providence] refused to call his physician to confirm the numbers." Instead, the lawsuit alleges that his bosses insisted Humphry have his blood tested again, within four days, at Providence's own Employee Health Services, and that Providence suspended him until the results were obtained. The Providence blood test confirmed Humphry's continued "undetectable" viral load.
Later that month, a routine job hazard struck: While working a late shift in the operating room, Humphry pricked his finger with a needle through his double gloves. He says he immediately alerted his colleagues of the minor incident. He then removed himself from the surgical field, "scrubbed again, re-gowned, re-double-gloved, and called his direct supervisor," according to his lawsuit. The supervisor ordered him to finish up with the last patient of the night, including helping transfer the patient from the operating table to a gurney and wheeling him out of the operating room. Humphry says he never touched the patient ("At no point did Humphry have any contact, direct or indirect, with the patient," the lawsuit states). Nevertheless, Humphry's supervisor then instructed him to have his blood drawn yet again at Providence's after-hours lab. He once again complied; the results were once again "undetectable." Then he could go home.
But before going to work the next day, Humphry received a phone call telling him he was suspended without pay. As he explains, while he'd followed his supervisor's instructions to the letter after pricking himself, he'd failed to comply with one of his stated job "accommodations" that demanded he get released for return to work by the Employee Health office before re-scrubbing, re-gowning, and wheeling his patient from the operating room. Only problem was, the incident occurred at around 7 p.m., and the Employee Health office had been closed for at least an hour.
In other words, Humphry explains, he didn't comply with that directive because he couldn't. But that didn't seem to matter; logic didn't seem to matter. (Providence declined to comment on the allegation about the Employee Health office being closed.) After he had worked as a surgical tech for years without a single employer complaint, Providence Everett managed to cite Humphry for three violations in 21 days after his HIV status was revealed. They fired him.
Lawyers for the hospital haven't yet filed a response to the lawsuit (they have until the end of March to do so), but Providence spokeswoman Tizon says: "As an equal opportunity employer, we do not discriminate against employees with any kind of disability, including those who are diagnosed with HIV, and we make appropriate accommodations to support these individuals in performing their job duties. While we cannot comment on pending litigation, we absolutely disagree with the allegations in the complaint... The former employee in question failed to follow protocols to protect against the transmission of HIV in the operating room, potentially putting patients at risk. These protocols were based on Centers for Disease Control recommendations and guidelines. Because patient safety is our number one priority, we had no choice but to end his employment."
It seems likely that Providence will reference its WLAD exemption in its legal response, as is its right under state statute. But Gordon sees another path to victory for his client. In his view, Providence Everett perceived Humphry's HIV status as a disability, and as part of the hospital's bargaining agreement with Humphry's union, UFCW 21, the hospital agreed not to "discriminate or condone harassment in any manner, in conference with applicable laws, against any employee by reason of race, color, religion, creed, sex, national origin, age, marital status, sexual orientation, or sensory, mental, or physical handicap." In other words, Humphry's lawsuit alleges that the hospital broke a union contract.
"Humphry acted with the highest level of integrity, he informed his employer that he had HIV, and they proceeded on a pattern of tormenting him and firing him," says Gordon. "His career has been destroyed." Their lawsuit seeks unspecified damages for lost wages, pain and suffering, and emotional distress, among other things.
"During the legal proceedings, we intend to present the facts, which show he was treated respectfully, professionally, and fairly during his employment with Providence," responds Tizon.
Gordon may be able to successfully demonstrate that his client was discriminated against. But that wouldn't change the law that exempts religious institutions from antidiscrimination laws. Without a ruling from the state supreme court, a proactive effort from legislators to change the law, or a come-to-Jesus-NO-REALLY moment on the part of religious hospitals, fleet-footed discrimination against various protected classes will still be possible.
The Washington State Supreme Court has never ruled on the constitutionality of the religious nonprofit exemption. Luckily, there's hope: In May, the state's highest court is scheduled to hear the case of Ockletree v. Franciscan Health System.
In 2010, Larry Ockletree suffered a stroke while working as a security guard at St. Joseph Medical Center in Tacoma (an affiliate of Franciscan Health System, or FHS). As a result, he lost the use of his left arm. His job wasn't physically strenuous—he manned a desk in the emergency room, where his duties included checking ID badges and issuing name tags to visitors. But the hospital refused to allow the security guard to resume his duties.
Lawyers for Ockletree, who is African American, filed a lawsuit alleging that he was discriminated against based on "his disability and race." The argument presented in this case is one that I've heard repeated among labor and employment lawyers—namely, that the broad religious exemption conflicts with the Washington State Constitution, Article 1, Section 11, which addresses religious freedom. It states: "Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state."
Further, Article 1, Section 12 of our state constitution states that "no law" shall grant any citizen, group of citizens, or corporation special privileges or immunities not enjoyed by all citizens or corporations.
In other words, our constitution states that you can't flex your religious freedoms if they infringe on everyone else's peace and safety. Citing religious freedom for firing employees who've had babies or suffered strokes—when these employees' jobs have no religious purpose or practice—arguably does just that.
Nevertheless, FHS moved to dismiss Ockletree's claims in federal court, citing its religious exemption. Here's where it gets interesting: The US District Court for the Western District of Washington then bumped the case to the Washington State Supreme Court. In doing so, US District Court judge Ronald B. Leighton stated that Ockletree's employment had "nothing to do with any religious purpose or activity" and that the "discrimination Ockletree claims... was wholly unrelated to FHS's religious purpose, practice, or activity." And while he stated, "I have a suspicion that most federal judges would say that WLAD, in this respect, as applied, is unconstitutional," Judge Leighton said that our state court should rule on whether the exemption violates our state constitution before the federal courts take up the issue.
If Ockletree prevails in the state supreme court, then all religious nonprofit organizations in the state will be subject to the WLAD and unable to discriminate against employees—that is, unless FHS, a religious nonprofit, can raise a First Amendment defense.
But that's unlikely to help former employees of religious nonprofits like Humphry, if in fact it's proven that Humphry's been discriminated against. He says he's suffered from depression since losing his job (and most likely his career). He's applied for roughly 200 jobs in the last two years. Despite countless interviews, no one has offered him work. He speculates that prospective health-care employers can discern his medical status based on the HIV medications he lists on job applications. "I'll be 51 this month, and this is the first time in my life that I've been unemployed," Humphry says. "It hurts."