Attorney Gregory S. Mager presented Child Related Financial Issues, Property Division, Maintenance on August 2, 2013 at the State Bar of Wisconsin’s 32nd Annual Family Law Workshop in Sturgeon Bay, Wisconsin.

The U.S. Court of Appeals for the Fifth Circuit recently held that firing a female employee because she is lactating or expressing breast milk constitutes sex discrimination in violation of Title VII of the Civil Rights Act.

Title VII of the Civil Rights Act prohibits discrimination on the basis of sex, which, until Congress enacted the Pregnancy Discrimination Act (“PDA”), did not include discrimination on the basis of pregnancy. The PDA made clear that discrimination based on or because of sex includes discrimination based on or because of pregnancy, childbirth, or related medical conditions. In EEOC v. Houston Funding II Limited, the Fifth Circuit has now held that lactation is a “related medical condition” of pregnancy for purposes of the PDA.

In the Houston Funding case, a female employee filed a charge of sex discrimination with the EEOC when her employer, Houston Funding, fired her after she asked whether she could use a breast pump at work. The employee took a personal leave of absence to have a baby. Shortly after giving birth, the employee told Houston Funding that she would return to work once her physician released her to do so. While she was on leave, the employee had communicated to her supervisor that she was breastfeeding her child and asked whether she would be able to use her breast pump at work.  When the employee’s physician finally released her to return to work, the employee again mentioned that she was lactating and wanted to know whether she could use a back room to express breast milk. Houston Funding told the employee that they had filled her position and that she was being terminated for job abandonment because she had not contacted her supervisor during her leave and had not attempted to return to work. The employee responded by filing a sex discrimination claim with the EEOC.

The Fifth Circuit found that Houston Funding discriminated against the employee based on a related medical condition of the employee’s pregnancy – in other words, because she was lactating and wanted to express breast milk at work. The Fifth Circuit’s holding in Houston Funding means that courts are beginning to recognize that employment decisions based upon whether a woman is lactating may be considered discriminatory in violation of Title VII.

What Should Employers do to Avoid These Types of Claims?

Be sure to follow best practices and applicable employment laws. For example, federal law requires employers to provide reasonable break time and a private place (other than a restroom) for female employees to express breast milk after giving birth to a child. Additionally, Wisconsin law prevents employers from prohibiting a mother from breast-feeding her child, directing a mother to move to a different location to breast-feed her child, directing a mother to cover her child or breast while breast-feeding, or otherwise restricting a mother from breast-feeding her child. You should be sure to update your policies accordingly to ensure that you are in compliance with federal and state law.

If you would like more information about this topic or if you need advice on how to draft your personnel policies to ensure compliance with applicable laws, please contact Sarah C. Matt.

Attorney Timothy Van de Kamp of the law firm of O’Neil, Cannon, Hollman, DeJong and Laing was elected to the Board of Directors of Real Estate Alliance for Charity (REACH). REACH is the primary charity organization of Commercial Association of REALTORS® (CARW), and has raised hundreds of thousands of dollars from generous professionals in the commercial real estate industry and provides much-needed grants to local charities. The organization supports the hearing and visually impaired, the developmentally disabled, disadvantaged youth, and families in need throughout Greater Milwaukee.

Tim is a member of the firm’s Corporate Practice Group and works on the firm’s Real Estate and Construction and Banking and Creditors’ Rights teams. He advises and

represents individuals, businesses, and banks on a variety of real estate, corporate, and banking related issues, including property acquisitions and dispositions; commercial, retail and office leasing; zoning and land use law; and creditors’ rights.

Generally, the “ministerial exception” allows religious employers to avoid liability for discrimination claims when making employment decisions concerning employees who qualify as “ministers.”  The exception is rooted in religious freedom principles found in the U.S. Constitution.  Specifically, the First Amendment of the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The first part of this amendment is known more commonly as the “Establishment Clause” and the second part is commonly known as the “Free Exercise Clause.”  The U.S. Supreme Court has held that a church’s selection of its leaders is grounded in the Free Exercise Clause.  The Free Exercise Clause recognizes that “perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large.”

More than one year ago, the U.S. Supreme Court confirmed that claims involving the employment relationship between a religious institution and its ministers exempt employers from liability under Title VII pursuant to the “ministerial exception” founded upon an employer’s First Amendment rights. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that:

Generally, the “ministerial exception” allows religious employers to avoid liability for discrimination claims when making employment decisions concerning employees who qualify as “ministers.”  The exception is rooted in religious freedom principles found in the U.S. Constitution.  Specifically, the First Amendment of the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The first part of this amendment is known more commonly as the “Establishment Clause” and the second part is commonly known as the “Free Exercise Clause.”  The U.S. Supreme Court has held that a church’s selection of its leaders is grounded in the Free Exercise Clause.  The Free Exercise Clause recognizes that “perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large.”

More than one year ago, the U.S. Supreme Court confirmed that claims involving the employment relationship between a religious institution and its ministers exempt employers from liability under Title VII pursuant to the “ministerial exception” founded upon an employer’s First Amendment rights. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court held that:

“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such an action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”

The Supreme Court in Hosanna-Tabor refused to adopt a rigid formula for deciding when an employee qualifies as a minister. So, one of the primary questions that remains after the Supreme Court’s decision in Hosanna-Tabor has been how broadly the courts will interpret “minister” and which employees will be covered by the ministerial exception.

One of the first opportunities to test the Supreme Court’s ruling in Hosanna-Tabor presented itself in Dias v. Archdiocese of Cincinnati, a case coming out of the U.S. District Court for the Southern District of Ohio. On June 4, 2013, a jury returned a verdict for Crista Dias, a former technology coordinator for two Catholic schools in the Cincinnati area. Dias filed a complaint against the Archdiocese alleging the Archdiocese terminated her for being pregnant and unmarried in violation of Title VII’s ban on sex and pregnancy discrimination.

The Archdiocese moved to dismiss Dias’ complaint by invoking the “ministerial exception,” but the district court denied the motion. The court found that Dias was not a minister for purposes of the ministerial exception to Title VII because Dias taught computer classes and because she was a non-Catholic who was not permitted under church rules to teach religion to her elementary school students. If the Ohio Archdiocese appeals the jury’s verdict, it will have an opportunity to pursue defense of the claim under the ministerial exception at the federal appellate court level, which will give the appellate court a chance to develop the standard for determining when an employee qualifies as a minister.

Religious-based employers should closely follow the developing case law of the ministerial exception for guidance as to which employees will be considered “ministers” within the meaning of the exception.

Attorney Peter Walsh has published an article titled “Multijurisdictional Practice of Law Issues in Estate Planning,” in the June, 2013 issue of the national estate planning magazine Estate Planning (an RIA Publication).  The article addresses the complex issue of the extent to which an estate planning attorney may provide legal services to a resident of a state in which the attorney is not licensed.  Peter has lectured on this subject to Milwaukee Bar Association (February, 2012) and the Estate Planning Section of Wisconsin State Bar (November, 2011).

Peter’s interest in this area springs from his own multijurisdictional estate planning practice.  As an attorney licensed to practice law in Wisconsin, Illinois, and Florida, Peter regularly provides legal assistance to residents of these states, and he has extensive experience with nuances of the laws of each state.

Peter is a member of the Trust and Succession Planning and Business Law practice groups of O’Neil, Cannon, Hollman, DeJong and Laing.  Licensed in Wisconsin, Illinois, and Florida and with a Masters of Law degree in taxation, Peter assists clients in all areas of tax and estate planning. 

James DeJong has been elected the next chair of the Carroll University Board of Trustees. He will serve as chairman for three years on the board, which oversees academic, financial, and operational decisions for the private Waukesha University.

James G. DeJong, a 1973 graduate of Carroll, is president of the Milwaukee law firm O’Neil, Cannon, Hollman, DeJong and Laing and has served as a member of the University’s board since 2008.

…Read More »

Attorney Jim DeJong was featured in an article appearing in the 2013 Summer Edition of the Marquette Lawyer Magazine.  Read the article about Jim here.

The Milwaukee Justice Center, organized by Milwaukee County, Milwaukee Bar Association, and Marquette University School of Law provides legal assistance to individuals who cannot afford legal representation. In 2012, the volunteers of the Center served nearly 9,000 hours of pro bono service to 10,659 unrepresented civil litigants.

Sixteen attorneys from the law firm of O’Neil, Cannon, Hollman, DeJong and Laing contributed to the success of the Milwaukee Justice Center to include:

• Doug Dehler
• Megan Eisch
• Miles Goodwin
• Megan Heinzelman
• Grant Killoran
• Justinian Koenings
• Claude Krawczyk
• Gregory Lyons
• Sarah Matt
• Joseph Newbold
• Laura Now
• Jason Scoby
• Steven Slawinski
• Steven Strye
• Timothy Van de Kamp
• Peter Walsh

Grant Killoran has been elected to serve on the Board of Directors of the Milwaukee Debate League.

The Milwaukee Debate League works in partnership with Milwaukee-area high schools to support academic debate teams.  Created in 2007, the Milwaukee Debate League provides unique youth development programming targeting high school students, blending competition and rigorous work in academic high school debate with fun. Through this spirited competition, students have the opportunity to become articulate and informed leaders in their schools and effective advocates for themselves, their families and their community.  For more information on the Milwaukee Debate League, visit www.debatemilwaukee.org.

Grant Killoran is the Chair of the Litigation Practice Group at O’Neil, Cannon, Hollman, DeJong and Laing.  He previously was involved with academic debate at both the high school and collegiate levels, both as a debater and debate coach.  He continues to benefit in his legal practice from the skills gained during his involvement with academic debate and is honored to serve on the Board of the Milwaukee Debate League.

Grant Killoran has significant and diverse trial experience representing clients in Wisconsin State and Federal Courts, and courts around the country, focusing on complex business and health care disputes. Mr. Killoran devotes a portion of his practice to arts and entertainment law, with an emphasis on the music and film industries. He is a Fellow with the American Bar Foundation, has served as one of the State Bar of Wisconsin’s five Delegates to the American Bar Association’s House Delegates and is a Co-Editor of the ABA Section of Litigation’s Health Law Litigation Newsletter.

Attorney Blair recently joined the firm’s Banking and Creditors’ Rights Group. She will assist secured and unsecured corporate or individual creditors and other entities with the work out of commercial loans, leases, and other obligations.  Ms. Blair, formerly a law clerk to the Honorable Susan V. Kelley, U.S. Bankruptcy Court of the Eastern District of Wisconsin, and a shareholder at Kravit, Hovel and Krawczyk, S.C., also represents receivers in state Chapter 128 Receivership proceedings, real estate foreclosures, the wind-up of corporations, collection matters, and with the acquisition or disposition of business assets. She is a graduate of Marquette University Law School, J.D., magna cum laude.

O’Neil Cannon, founded in Milwaukee in 1973, is a full-service legal practice that primarily focuses on providing business law and civil litigation services to closely-held businesses and their owners. The firm represents corporations, institutions and partnerships at all stages of the business life cycle, helping them start, grow and transition from one generation to the next. We also assist business owners with their personal legal needs including tax and estate planning, family law and litigation—including personal injury litigation.