Tuesday, March 29, 2011

Whistleblowers

http://www.whistleblowersblog.org/2011/03/articles/corporate-1/supreme-court-considers-whistleblower-protection-for-ministerial-employees/
ome > Corporate Whistleblowers > Supreme Court considers whistleblower protection for "ministerial employees"
Supreme Court considers whistleblower protection for "ministerial employees"
Posted on March 28, 2011 by Richard Renner
The U.S. Supreme Court is considering whether to review a Michigan decision that allows a church to fire a middle school math teacher after she reported suspected sexual abuse to government authorities. According to the Court's docket, this case has been distributed for consideration at all three Friday conferences this month. The Court's web page says that decisions are normally released on the Monday following each Friday conference. One might therefore conclude that this case is not normal. The case is Weishuhn v. Catholic Diocese of Lansing, Case No. 10-760. Adding to the intrigue, today the Supreme Court accepted another case in which it will consider the scope of the "ministerial exception" to employment lawsuits (Hosanna-Tabor Church v. EEOC, Case No. 10-553). In the Hosanna-Tabor Church case, the Supreme Court will be reviewing a decision by the Sixth Circuit that reinstated the disability and retaliation claims of Cheryl Perich. Perich was a third and fourth grade teacher at the Church's school in Michigan. She took a disability leave for the 2004-2005 school year due to a recent onset of narcolepsy. Before the year was up, and after Perich retained an attorney to represent her in saving her job, the Church fired her. The Sixth Circuit held that, "Perich’s claim would not require the court to analyze any church doctrine; rather a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich."

So surely if teachers in religious schools can be protected when they hire a lawyer to assert disability claims, they should also be protected when they report suspected sexual abuse to government authorities. No so in Michigan state courts. In Weishuhn v. Catholic Diocese of Lansing, the state court of appeals held that, "Termination of a ministerial employee by a religious institution is an absolutely protected action under the First Amendment, regardless of the reason for doing so." Because Madeline Weishuhn told The Catholic times that, "My ultimate goal is to help each student develop into a young Christian person who has a conscience." her duties were primarily religious, "notwithstanding the fact that she taught four mathematics and two religion classes in her last year of teaching." Weishuhn's petition to the Supreme Court explains, in a footnote on page 16 (page 26 of this PDF file), that:

[S]he was retaliated against for making complaints of sex discrimination in the workplace. Plaintiff also asserted a claim under the Michigan Whistleblowers’ Protection Act after being terminated for reporting suspected sexual abuse of a student to the appropriate governmental authority

The Michigan court of appeals never used the words "sexual abuse" in considering the state's interest in protecting children. On page 8, the court did say, "We recognize that it seems unjust that employees of religious institutions can be fired without recourse for reporting illegal activities, particularly given that members of the clergy, as well as teachers, are mandated reporters." Perhaps soon the U.S. Supreme Court will see the wisdom in granting Madeline Weishuhn's petition so that all teachers will be protected when they report suspected child abuse.

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