This 'n' that in employment law

Late summer odds and ends.

Catholic school guidance counselor supervisor is a "minister," court says. And therefore she can't sue the Archdiocese of Indianapolis for refusing to renew her contract after she entered into a same-sex union. About a year ago, all of the judges of the same court (U.S. Court of Appeals for the Seventh Circuit) held that the ministerial exception also applied to a lawsuit where a gay music director alleged that his pastor teased him about his sexual orientation and medical condition, creating an unlawfully hostile work environment.

Usefulness of EEO-1 pay data? Depends on whom you ask. A panel of the National Academies of Sciences, Engineering, and Medicine was commissioned in 2020 to conduct a study on whether the collection of pay data (also known as "Category 2") by the U.S. Equal Employment Opportunity Commission was worthwhile and to suggest improvements. The approximately 300-page study, released yesterday, can be ordered in book form or downloaded free here. According to a press release issued yesterday by the EEOC, the study's findings generally supported pay data collection. The study found that the EEOC's collection of compensation data was helpful and that the information was not readily available through other sources. The study also found that the data collection should be expanded in the future (to include data based on age and LGBT status, among others).

On the other hand, EEOC Commissioners Keith Sonderling and Janet Dhillon (who was EEOC chair during the Trump Administration) issued their own statements yesterday, noting that the study highlighted flaws in the data collection. Commissioner Dhillon highlighted the panel's criticism of overly broad pay bands, "data reliability and quality issues," and the cost of the collection (in excess of $750 million). They both acknowledged that compensation data could be helpful in finding and addressing discrimination, but said that the EEOC should not collect compensation data from employers without going through notice-and-comment rulemaking first.

Commissioner Sonderling said, "The report . . . is not a carte blanche approval for the [EEOC] to hastily conduct another pay data collection. Instead, it should be interpreted as a warning to the Commission to thoughtfully research the issue, engage and be transparent with the public, and address privacy concerns, and the financial burdens of conducting a pay data collection."

The National Academies is offering a free webinar on the study and its findings next Tuesday (August 2) from 1 to 3 p.m. Eastern. You can register here. 

Sneak preview: Employee terminated for sleepwalking into co-worker's hotel room during sales conference does not have valid disability claim, court says. Rachael Rustmann of our Nashville Office will have the full story for you soon. It is definitely worth waiting for! 

Robin Shea has 30 years' experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act). 
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