Total Workplace Discrimination Makeover

Dave Ramsey calls himself a financial expert, but he’s got no clue when it comes to workplace discrimination

Every week in my newsletter, I answer a legal question from readers.

This week’s question comes from me incredulously reading the news and then seeing this fool on billboards all over Dallas:

“The company of Dave Ramsey, personal finance ‘expert’ and evangelical Christian radio host, has repeatedly fired employees over premarital sex. Is that legal?”

Excellent question, me! I love answering questions from you, but just like you, I sometimes hear about things happening and wonder whether they’re legal. Here’s one that has been rattling up in the ol’ noodle since the news was announced.

As some of you may know, Dave Ramsey is a personal finance personality. He has a radio show, tons of books, and offers personal financial training. Most effective may be his personal story that captivates listeners. At 58 years old, Ramsey has an estimated net worth of $200 million, even after previously filing for personal bankruptcy earlier in his life. He utilizes Biblical principles to guide others to a life free from debt in pursuit of financial freedom.

Ramsey has created The Lampo Group, LLC which operates Ramsey Solutions, the company that runs his courses, publishes his books, and produces his radio show. The company has about 900 employees, which subjects it to the federal laws like the Family and Medical Leave Act and Americans with Disabilities Act. Based in Tennessee, it is also subject to Tennessee state employment laws as well.

In July 2020, a former employee filed suit against Ramsey Solutions after being fired for having premarital sex. Yeah, I just wrote that sentence, and that sentence says that a company prohibited its employees from getting their bang on outside the confines of work.

Now, look, I get it. They’re a religious company. The issue we have here is with enforcement. Unless the company wants to invest in fleetwide chastity belts for every employee, the only real way to glean whether an employee has had sex is if that employee shows up pregnant. This disparately impacts women, at least according to the fired woman’s attorney.

That is what happened to the plaintiff suing Ramsey’s company, Caitlin O’Connor. After discovering she was pregnant with her long-term partner’s baby, O’Connor asked her HR representative for paperwork on FMLA leave that she planned to take as her maternity leave. She also requested paperwork on ADA accommodations because she was carrying a “geriatric pregnancy” and wanted to explore options for possible accommodations.

The next day she was told she had to meet with the board of the company. A few days later, after meeting with board members, she was terminated after four years of solid performance for violating “Company Conduct.” The exact language in the company policy is available in the complaint. It reads:

“The image of Ramsey Solutions is held out to be Christian. Should a team member engage in behavior not consistent with traditional Judeo-Christian values or teaching, it would damage the image and the value of our good will and our brand. If this should occur, the team member would be subject to review, probation, or termination.”

The Code of Conduct also incorporates a “righteous living” policy which prohibits premarital sex.

O’Connor’s complaint argues that her termination interfered with her right to take FMLA leave, discriminated against her due to her sex, pregnancy, religion, and disability, and was in retaliation for becoming pregnant, requesting FMLA, and/or her disabilities. She also pointed out that Ramsey Solutions “in a particularly cruel manner” also terminated her health insurance benefits which include pre and post-natal care.

Ramsey Solutions had a defense to these allegations: it didn’t only fire Caitlin O’Connor for violating this policy. It fired several other folks, too — to be precise, it fired eight other employees over the past five years. In its Motion to Dismiss filed in the case, the parent company argued that because it is a private, for-profit employer, it is within its legal rights to fire employees for any reason so long as the reason is not discriminatory or retaliatory.

Is it legal for Dave Ramsey’s company to fire employees for doing the no-pants dance?

Maybe. In the 2014 U.S. Supreme Court Decision Burwell v. Hobby Lobby, the Supreme Court held that “closely held” for-profit companies can exercise religious beliefs.

“Closely held” is defined by the IRS as those companies that have more than 50% of the value of their outstanding stock owned (directly or indirectly) by 5 or fewer individuals at any time during the last half of the tax year; and that are not personal service corporations. According to the Washington Post, as of 2014, approximately 90% of U.S. corporations are “closely held”, and approximately 52% of the U.S. workforce is employed by “closely held” corporations.

Hobby Lobby, a chain of craft stores with 500 locations and 13,000 employees falls under this definition. It stands to reason then that The Lampo Group LLC/Ramsey Solutions with its 900 “team members” falls under the definition as well.

The Hobby Lobby decision confirmed that the Religious Freedom Restoration Act of 1993 (RFRA) allows a for-profit company to deny its employees health coverage of contraception to which the employees would otherwise be entitled based on the religious objections of the company’s owners.

The majority of justices in Hobby Lobby specifically emphasized that the decision only concerned the contraceptive mandate of the Affordable Care Act and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. The Court also clarified that the Hobby Lobby decision does not provide a shield for employers who might cloak illegal discrimination as a religious practice.

Even with these caveats, there is nothing stopping someone from asking the Court to extend the law to their religious-based practices in their “closely held” businesses that would otherwise run afoul of anti-discrimination laws.

Given this possibility and what it has to lose, it doesn’t seem like Ramsey’s organization is willing to back down. If so inclined, the case could be argued up to the higher court, and Ramsey Solutions could ask for relief under the RFRA. That law provides that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” The Hobby Lobby court confirmed that the definition of “person” includes corporations. The exception to that rule — which allows the government to burden the religious exercise of employers — occurs where the government demonstrates that applying the burden on religious exercise meets two requirements:

(1) The burden on exercising religion is in furtherance of a compelling governmental interest; and

(2) The burden on exercising religion is the least restrictive means of furthering that compelling governmental interest.

In plain terms, if the government was to infringe on the exercise of religious beliefs, it has to have a really really good reason to do so, and it has to infringe on the exercising of religious beliefs in the least restrictive way possible. This sounds like nonsense, and it is. Welcome to the practice of law, where the rules are made up and the points don’t matter.

There are two questions then: (1) Does the federal government have a compelling interest in preventing discrimination on the basis of sex, pregnancy, and disability and providing medical leave to employees? I think it does. Then (2) Does prohibiting employers from firing employees who engage in premarital sex further that government interest via the least restrictive means possible? In other words, is there another, easier way to prevent discrimination other than prohibiting companies from firing people for doing the humpty hump?

Let’s take Hobby Lobby for example. The ACA mandate at issue in Hobby Lobby forced all employers, including companies with religious beliefs, to provide contraception to their employees. The Court reasoned there were other, albeit not as convenient, ways for employees to obtain access to contraception. Because the contraception mandate forced companies to violate their “religious beliefs” where a lesser restrictive alternative was available, the Court held the mandate was in violation of the RFRA.

I am racking my brain for a less restrictive way to further that compelling government interest of a workplace free from discrimination on the basis of sex, pregnancy, and disability besides prohibiting companies from firing people for having sex outside of marriage. I got nothing. If you can think of a way, please reply to this newsletter and let me know what that is.

Whether Ramsey Solutions is in violation of federal law may be a question for the Supreme Court. As for state law, in 1997, the Supreme Court held that the RFRA is unconstitutional as it applies to state and local laws in City of Boerne v. Flores. So as to its violations of Tennessee state laws, Ramsey’s company wouldn’t be able to rely on the RFRA to get out of those claims.

Based on their most recent filing, Ramsey Solutions seems intent on fighting O’Connor’s lawsuit. She filed in federal district court, so it could be appealed to the Sixth Circuit Court of Appeals, and later, the Supreme Court. That is when we will see whether the new make-up of the Supreme Court will extend the RFRA to employment laws, potentially eroding laws meant to protect employees who don’t necessarily fit a “Christian ideal” in the eyes of their employers.

It also is not clear whether these accusations have impacted Ramsey’s image or lost him any audience members. I’ve never followed him much or read any of his books, so I can’t tell you whether “discriminate against your employees” is some kind of hot tip for personal finance. I’m no expert, but I can tell you “don’t get sued” is a pretty good plan for saving money on legal fees. I am also rusty on my Bible reading, so I’m not sure whether “thou shalt deny pre- and post-natal insurance care to unwed mothers” is in the New Testament or the Old. Maybe it’s not in either???

Caitlin O’Connor isn’t the only one suing the Ramsey entity. On April 15, 2021, a former video editor for the company sued Ramsey Solutions and Dave himself in county court claiming the workplace was run as a “religious cult” that referred to those who wore masks as “wusses” and demanded “complete and total submission to Dave Ramsey and his views of the world to maintain employment.” According to the complaint, this employee was fired for “failing to follow [Ramsey’s] particular view that taking precautions other than prayer against COVID infection would make a person fall out of God’s favor.” As far as I can tell, Ramsey is not a doctor or infectious disease expert.

As for Ramsey himself, he doesn’t seem to give an eff about any of this. In a Q&A he posted on his website, he told a Twitter user it was OK to fire an employee for having an extramarital affair outside the office. Ramsey, who as far as I can tell, is not a lawyer either, said, “I’ve got a right to tell my employees whatever I want to tell them. They freaking work for me.” Amen, I guess?

I hope that was interesting for all you to learn as it was for me to research. Thanks for reading.

Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don’t send those. Love you, but I don’t do that.

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