The Catholic University of America

Summary of Federal Laws

Employment

Equal Employment Opportunity

Civil Rights Act of 1964 (Title VI and Title VII)

Selected Case Law Under Title VII:

University of Texas Southwestern Medical Center v. Nassar, Case No. 12-484, June 24, 2013

The question before the Court was whether the lessened causation standard (the motive to discriminate was one of the employer's motives, even if the employer had other lawful motives) is applicable to claims of employer retaliation under §2000e–3(a). The Court held "Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in §2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer."  In reaching this decision the Court noted as follows: 

 

The proper interpretation and implementation of §2000e–3(a) and its causation standard have central importance to the fair and responsible allocation of resources in the judicial and litigation systems. This is of particular significance because claims of retaliation are being madewith ever-increasing frequency. The number of these claims filed with the Equal Employment Opportunity Commission (EEOC) has nearly doubled in the past 15years—from just over 16,000 in 1997 to over 31,000 in 2012. EEOC, Charge Statistics FY 1997 ThroughFY 2012, http://www.eeoc.gov/eeoc/statistics/enforcement/charges.cfm (as visited June 20, 2013, and available inClerk of Court’s case file). Indeed, the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race.

See the Chronicle article on the case from June 24, 2013. ACE had filed a brief in this case in favor of the University, arguing that mixed motives standards are hard to disprove in court.

 

Vance v. Ball State University et al., No. 11-556 Decided June 24, 2013.
In this case the University was not vicariously liable for a racially hostile work environment. The Court held that an employee is a supervisor for purposes of vicarious liability under Title VII only if he or she is empowered by the Employer to take tangible employment actions against the victim of the harassment. If the harassing employee is the victim's co-worker, the employer is liable only if it was negligent in controlling working conditions. See the Chronicle article titled Supreme Court Rules for Ball State U. in Workplace Harassment Case.

Macy v. Holder, Appeal No. 0120120821, EEOC , April 20th, 2012.

EEOC agency decision ruling – for the first time – that employment discrimination against transgender individuals is a form of sex discrimination under Title VII of the Civil Rights Act of 1964.This ruling applies to all employers subject to Title VII on the federal level. Plaintiff applied to BATF as a man, and was offered a job, which was rescinded when she told agency she was in process of becoming a woman.


Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, Decided Jan. 11, 2012, U.S. Supreme Court
In a unanimous decision, the S. Ct.reaffirmed the application of the ministerial exception under Title VII. In this case, the Hosanna-Tabor Evangelical Lutheran Church (Church) hired a subsitute teacher to replace a commissioned minister teacher (Cheryl Perich) who had been on half the year with narcolepsy. When Perich stated she was ready to return to the classroom, the principal advised they had contracted with another teacher and also expressed concern about Perich's readiness to return to the classroom. The congregation offered to pay part of her health insurance in exhange for her resignation. Perich instead filed a claim with the EEOC alleging disability discrimination. The EEOC brought suit against the Church alleging that Perich had been fired in retaliation for threatening to file and ADA lawsuit. The Church has a principle of internal dispute resolution and responded that the suit was barred by the First Amendment as this claim concerned an employment relationship between a religious institution and one of its ministers. While the 6th Circuit Court of Appeals held for the teacher, the U.S. Supreme Court reversed and held for the Church. Excerpts from the decision follow.

Perich taught kindergarten during her first four years at Hosanna-Tabor and fourth grade during the 2003–2004 school year. She taught math, language arts, social studies, science, gym, art, and music. She also taught a religion class four days a week, led the students in prayer and devotional exercises each day, and attended a weekly school-wide chapel service. Perich led the chapel service herself about twice a year. 

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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. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

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We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

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Having concluded that there is a ministerial exception grounded in the Religion Clauses of the First Amendment, we consider whether the exception applies in this case. We hold that it does.

Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.

To begin with, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members. When Hosanna-Tabor extended her a call, it issued her a “diploma of vocation” according her the title “Minister of Religion, Commissioned.” App. 42. She was tasked with performing that office “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.” Ibid. The congregation prayed that God “bless [her] ministrations to the glory of His holy name, [and] the building of His church.” Id., at 43. In a supplement to the diploma, the congregation undertook to periodically review Perich’s “skills of ministry” and “ministerial responsibilities,” and to provide for her “continuing education as a professional person in the ministry of the Gospel.” Id., at 49.

Perich’s title as a minister reflected a significant degree of religious training followed by a formal process of commissioning. To be eligible to become a commissioned minister, Perich had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher.

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In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception.

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The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” Kedroff, 344 U. S., at 119—is the church’s alone.

For an in depth analysis by two attorneys from Wiley Rein who filed an amicus brief in the case on behalf of religious groups see *The Broad First Amendment Rights of Religious Groups.* See also *Hosanna in the Highest* by Michael Stokes Paulsen, Jan. 13, 2012, The Witherspoon Institute Public Discourse.

Ricci v. DeStefano (Case No. 07-1428) Decided June 29, 2009 (U.S. Supreme Court)

Tests of firefighters in New Haven, Conn. for promotions came back with white candidates outperforming minority candidates, so the city threw out the results based on statistical racial disparity. i.e. a potential disparate impact on minority firefighters. The Supreme Court held the City's action in discarding the tests violated Title VII. See Supreme Court rules for White Firefighters in Bias Claim by Jackson Lewis for an analysis of the case. For further facts on this reverse discrimination case see the topics summary on the LII web page.

Statute of Limitations (overuled by Lilly Ledbetter Fair Pay Act of 2009)

Ledbetter v. Goodyear, (Case No. 05-1074) May 29, 2007 U.S. Supreme Court

In this case, the question presented upon appeal was as follows:

Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period.

The plaintiff claimed sex discrimination under 42 USC §2000e-2(a)(1). The charge, depending upon the state, must be filed within 180 or 300 days of the alleged unlawful practice. Here the plaintiff was claiming disparate treatment in pay on the basis of gender. The claim was based upon the theory that each paycheck issued is a separate violation of Title VII, with its own limitations period, regardless of whether the paycheck implements a prior discriminatory decision not within the statute of limitations. In rejecting plaintiff's claim the court stated:

The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But of course, if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed.

Ledbetter's arguments here-that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period-cannot be reconciled with Evans, Ricks, Lorance, and Morgan. Ledbetter, as noted, makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions that occurred prior to that period were not communicated to her. Instead, she argues simply that Goodyear's conduct during the charging period gave present effect to discriminatory conduct outside of that period. Brief for Petitioner 13. But current effects alone cannot breathe life into prior, uncharged discrimination; as we held in Evans, such effects in themselves have "no present legal consequences." 431 U. S., at 558. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure.

Justices Ginsburg, Stevens, Souter and Breyer filed a dissent, which was read from the bench by Justice Ginsburg. For more on this case see Justices' Ruling Limits Suits on Pay Disparity by Linda Greenhouse in the New York Times.

Retaliation

Burlington Northern & Santa Fe Railway v. White, No. 05-259, June 22, 2006 (U.S. Supreme Court)

In this end of term case, the Supreme Court adopted the standard for proving retaliation in use by the Court of Appeals for the DC Circuit, as well as the 7th Circuit Court of Appeals, and rejected stricter standards (from the employee's point of view) that had been adopted in other Circuits. This clarifies the employee's burden in seeking to prove illegal retaliation under 42 USC §2000e-3(a). Under the clarified standard, the employee seeking to prove retaliation will only need to show that the employer's actions would have "dissuaded a reasonable worker from making or supporting a charge of discrimination". The new standard allows claims for actions that an employer might take in retaliation outside the workplace, or not directly related to the plaintiff's employment. In the Burlington case the jury found that two of the employer's actions amounted to retaliation for White's complaint regarding sexual harassment: 1) the reassignment of White from forklift duty to standard track laborer tasks, and 2) the suspension without pay for 37 days. A SCOTUS blog posted at Akin Gump points out the standard may be adopted in other labor and employment cases involving claims of retaliation.

Key sections from the decision are set forth below:

The anti-retaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Appeals have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. We agree with the formulation set forth by the Seventh and the District of Columbia Circuits. In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, "which in this context means it well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.' " Rochon, 438 F. 3d, at 1219 (quoting Washington, 420 F. 3d, at 662). We speak of material adversity because we believe it is important to separate significant from trivial harms. Title VII, we have said, does not set forth "a general civility code for the American workplace." Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80 (1998)

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We refer to reactions of a reasonable employee because we believe that the provision's standard for judging harm must be objective. An objective standard is judicially administrable. It avoids the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff's unusual subjective feelings. We have emphasized the need for objective standards in other Title VII contexts, and those same concerns animate our decision here. See, e.g., Suders, 542 U. S., at 141 (constructive discharge doctrine); Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (hostile work environment doctrine).

We phrase the standard in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.

Religious Discrimination

Sharon Adelman Reyes v. St. Xavier University, No. 06-2284 (7th Cir. Sept. 14, 2007)

While this case is about a claim of religious discrimination, it is an excellent summary of the burden of proof under the McDonnell Douglas Corp. case, with helpful case law on the tenure process that supports the autonomy of universities.
The Plaintiff in this case is a professor who was denied tenure. She claimed in this action that she was denied tenure on the basis of her Jewish faith in violation of Title VII. The district court granted summary judgment for the defendants, and the Court of Appeals affirmed. The Dept. had recommended against tenure due to the plaintiff's service on committees and student appraisals. The School committee had recommended that she receive tenure. The University committee voted against tenure. The professor filed a grievance with the University challenging denial of tenure. The burden was on the plaintiff to establish a prima facie case, and the defendant to offer a non-discriminatory reason for denying tenure, which the University did in this case. The burden then shifted to the plaintiff to show this was pretext, which she was not able to do. The court accepted the University's denial of tenure on the above quoted reasons, and also because the university did not believe the plaintiff showed promise of "continued contribution to the intellectual life of the University", and found plaintiff had not submitted evidenced to create a triable issue of fact as to whether the proffered reason was pretext. The court stated:

Important for the pretext analysis in this case, Adelman-Reyes does not claim the President or any member of the University Committee was motivated by religious bias in denying her tenure application-she claims only that Gulley was so motivated

The Dept. Chair was alleged to have stated plaintiff was a "liberal union-oriented Jew" and that plaintiff missed work due to Jewish holidays. These were found not to be sufficient to meet plaintiff's burden on rebutting the University's reason for the denial. On the first remark, the court said: "we have previously held that 'stray remarks that are neither proximate nor related to the employment decision are insufficient to defeat summary judgment.'" On the second remark, the court stated as follows:

The second remark, though perhaps sufficiently linked to the employment decision, is not enough to establish pretext in the particular context of this case-a challenge to a university tenure decision. This is especially so in light of Adelman-Reyes's failure to even mention religious discrimination in her formal grievance filed with the University, and also her concession that neither the President nor the University Committee were motivated by religious bias.

On the judicial review of the tenure process, the court noted as follows:

We have previously observed that "tenure cases require something more than mere qualification; the department must believe the candidate has a certain amount of promise.... Given the nuanced nature of such decisions, we generally do not 'second-guess the expert decisions of faculty committees.' " Sun, 473 F.3d at 815 (citing Namenwirth, 769 F.2d at 1242, and quoting Vanasco, 137 F.3d at 968). We accept that a dean's recommendation has significant influence on the tenure process. However, because tenure decisions typically involve "numerous layers of review" by "independent and University-wide committees," the causal connection between any possible discriminatory motive of a subordinate participant in the tenure process and the ultimate tenure decision is weak or nonexistent. Id. at 813. Accordingly, "in the absence of clear discrimination," we are generally "reluctant to review the merits of tenure decisions," recognizing that "scholars are in the best position to make the highly subjective judgments related [to] the review of scholarship and university service." Farrell v. Butler Univ., 421 F.3d 609, 616 (7th Cir.2005).

St. Xavier's tenure process was typical in that it involved multiple layers of independent review. Gulley's negative recommendation was reevaluated by the University Committee in light of Adelman-Reyes's complete dossier and the SOE Committee's positive recommendation. The University Committee's recommendation was then reviewed by the Vice President of Academic Affairs and ultimately by the University's President. Adelman-Reyes's evidence is simply too weak to permit a reasonable factfinder to conclude that the reason she was denied tenure-that she showed insufficient promise of continued contribution to the University's intellectual community-was a cover for religious discrimination.

Moranski v. General Motors Corp., 433 F. 3d 537, No.05-1803 (7th Cir. 2005)

General Motors (GM) runs a program known as the Affinity Group Program. This program allows recognized groups to receive company recognition and use company facilties. The idea of the program is to make diverse constitutencies feel welcome at the company. Current affinity groups include People with Disabilities, African Ancestry Network, GM Plus (for gays and lesbians) and the Hispanic Initiative Team. Plaintiff Moranski sought recognition of a "Christian Employee Network".

GM denied Moranski his request, based on the Affinity Group Guidelines (Guidelines). The Guidelines preclude recognition of Affinity Groups based on any religious "position," including agnosticism, atheism, and secular humanism. Moranski, claiming discrimination on the basis of religion under Title VII, filed a complaint with the EEOC and was issued a Notification of Right to Sue letter. The district court granted GM's motion to dismiss for failure to state a claim. The Court of Appeals affirmed the district court finding, pointing out that the central question in a Title VII case is "Whether the employer would have taken the same action had the employee been of a different race (age, sex, religion, national origin, etc.) and everything else had remained the same." The Court of Appeals found no discrimination as GM would have taken the same action if Moranski had a different religious position. GM has never recognized an Affinity Group that promotes or advocates any religious position, even one of religious indifference or opposition to religion, and thus there was no discrimination in this case.

Gender Discrimination

  • Johnson v. University of Iowa, 431 F. 3d 325 (C.A. 8 Iowa) Dec. 15th, 2005. In this case, plaintiff, a biological father, brought a class action claim against the university alleging the university's policy of allowing biological mothers and adoptive parents to use accumulated sick leave upon arrival of a new child (but not biological fathers) was a violation of the Equal Protection clause of the U.S. and Iowa Constitutions, and also of Title VII of the Civil Rights Act and the Iowa Civil Rights Act. The 8th Circuit Court of Appeals upheld the lower court in not finding a violation under the law. As for the policy re biological mothers, the court found it was not unreasonable for the university to establish a period of presumptive disability so that it does not need to review medical records for each and every employee who gives birth. As for adoptive parents (both male and female), the court found that adoptive parents face demands on their time and finances that may be significantly greater than those faced by biological parents.
  • Wilson v. Delta State University, No. 04-60759 (5th Cir. Aug. 12, 2005)In this case brought against a university by an employee whose position was eliminated, the court found no gender discrimination under Title VII. The employee, Mr. Wilson, alleged that the university failed to renew his contract in retaliation for his complaints that the person who was the Chief Information and Planning Officer only obtained the job because she was having an affair with a university administrator. Delta State moved for judgment as a matter of law, on the grounds that preferential treatment of a paramour, while unfair, is not gender discrimination. Such treatment discriminates not only against men, but also all other women in the world except the paramour. The court agreed with this analysis, and found no unlawful employment practice under Title VII, and thus no retaliation under Title VII.

Sexual Harassment

  • Pennsylvania State Police v. Suders, No. 03-95, June 14th, 2004 (U.S. Supreme Court)To establish "constructive discharge," a plaintiff alleging sexual harassment must show that the abusive working environment became so intolerable that her resignation qualified as a fitting response. An employer may assert the Ellerth/Faragher affirmative defense to such a claim unless the plaintiff quit in reasonable response to an adverse action officially changing her employment status or situation, e.g., a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.
  • Swenson v. Potter, No 98-16799 (9th Cir. November 30, 2001) In this case the Appellate Court overturned the jury's conclusion that the Postal Service was not prompt and adequate in its response to a complaint of sexual harassment. The case is a useful summary of the various factors that must be weighed by the employer when investigating a claim of sexual harassment. The case discusses the steps that must be taken by the employer, from temporary steps to deal with the situation while it conducts an investigation, to permanent remedial steps once the employer has completed the investigation. The employer is not obliged to discipline the alleged harasser if the employer believes the facts will not support a charge brought against an employee.
  • Pollard v. E.I. du Pont De Nemours & Company, 121 S. Ct. 1946; 150 L. Ed. 2d 62; 2001 U.S. LEXIS 4123 (2001) Pollard involved an allegation of hostile work environment under Title VII. Although the lower courts found the plaintiff was a victim of sexual harassment, the lower courts limited her front pay to $300,000 due to the cap on compensatory damages set forth at 42 USC § 1981a(b)(3). The Supreme Court unanimously overturned the lower courts and held that front pay awards in Title VII cases are not subject to the damage cap, as front pay is not a form of compensatory damage. The Court found that Congress did not intend to limit the remedies available to plaintiffs when Congress authorized compensatory and punitive damages under the Civil Rights Act of 1991.
  • For a 9th Circuit Case on sexual harassment which stands for the principle that counseling or admonishing the offender can constitute an adequate disciplinary response, see Star v. West, (No. 99-55624, January 18, 2001). In this case an employee in housekeeping complained that her coworker engaged in unwelcome physical conduct during the work shift. The employer admonished the employee, and the contact ceased. In addition, the employer moved the employee who had allegedly engaged in sexual harassment to another shift. The complainant filed suit claiming this was not a sufficient response on the part of the employer. The court held for the employer, stating that what was important was not whether the actions taken were characterized as disciplinary, but whether or not the actions taken actually remedied the situation, and in this instance, it was clear that they had.
  • Burlington Indus. v. Ellerth, 118 S. Ct. 2257 (1998). In the Burlington case, the Court held that under Title VII, an employee who refuses the unwelcome, threatening sexual advances of a supervisor, but suffers no adverse, tangible job consequences may recover against an employer without a showing the employer is negligent or at fault. However, when no tangible job consequences have been suffered, the employer may claim an affirmative defense to liability or damages. There are two elements to the defense: 1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and 2) the victim of the harassment unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. No affirmative defense is available when the supervisor's harassment culminates in a tangible employment action.

Miscellaneous

Burden of Proof

Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000)

The Supreme Court clarified the burden of proof in discrimination cases in a decision issued June 12, 2000. In a case brought under the ADEA, Reeves v. Sanderson Plumbing Products, Inc., No. 99-536, the Court addressed the question of whether a plaintiff's prima facie case of discrimination, combined with sufficient evidence for a reasonable fact finder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of intentional discrimination. In the case, petitioner Reeves, aged 57, claimed he had been terminated by his employer due to his age. The employer contended Reeves was fired due to his failure to maintain accurate attendance records. Reeves introduced evidence that showed he had in fact maintained accurate records. The Supreme Court held that the evidence eliminating the employer's proffered reason, combined with the prima facie evidence of differential treatment on the basis of age, was adequate for the jury to find intentional discrimination. The Court of Appeals was found to have erred in proceeding from the premise that the plaintiff must always introduce additional independent evidence of discrimination. Although the case was decided under the ADEA, this less strict burden for the plaintiff would also seem to be applicable to cases of intentional discrimination brought under Title VII, as in deciding this case, the Supreme Court assumed the Title VII McDonnell Douglas burden shifting framework was applicable.

Sanctions

EEOC v. Asplundh Tree Company, 340 F.3d 1256; 2003 U.S. App. LEXIS 16180; (11th Cir. 2003) In this case the 11th Circuit upheld the dismissal of a lawsuit filed by the EEOC, and awarded attorneys' fees and costs to the employer, Asplundh Tree Company. The Company had fully cooperated in the investigation, but one week after the cause finding, the EEOC demanded a response to a concilation agreement within 13 days. Title VII of the Civil Rights Act of 1964 provides in pertinent part:

If after investigation, the Commission determines there is reasonable cause to believe that the charge [of discrimination] is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practices by informal methods of conference, conciliation, and persuasion. (42 U.S.C. § 2000e-5(b))

From the opinion:

"There is no record establishing that the Commission determined conciliation had failed prior to receipt of Sampo's faxed letter. Under these circumstances, it cannot be said that the EEOC acted in good faith. In fact, its conduct 'smacks more of coercion than of conciliation.' See EEOC v. Pet, Inc., Funsten Nut Div., 612 F.2d 1001, 1002 (5th Cir. 1980). Despite the extended period of investigation, it appears that, once the EEOC decided it was ready to move forward, it would tolerate no 'dallying' by Asplundh."

For a full summary of the case, see Feb. 11, 2004 Jackson Lewis article Appeals Court Sanctions EEOC for Failing to Conciliate in Good Faith Before Filing Lawsuit.

 

 

 

 

 

 

 

 

 

 

 

 

 

updated 1/14/12 by mlo to add Hosanna case

updated 5/17/12 to add Macy v. Holder