Religion & Antidiscrimination Law WEEK X: ACCOMMODATIONS I: JOB DUTIES (A) What We’ll Pick Up From Last Week DQ51. In cases where the employer is not a government entity (and so Establishment Clause concerns are absent), to what extent should supervisors be permitted to engage in attempts to share their religious beliefs with the employees who work for them?  Judge Noonan’s verse (IX-33) says, “Who sweeps a room for thy cause…” Is “Who makes someone else sweep a room for thy cause…” the same thing?  Does it matter whether the supervisors’ religion requires them to share their beliefs?

DQ55 & DQ58: What’s an employee to do?  What is the appropriate way for an employee to handle the kind of situation described in Tillery?  What do the last three cases suggest is the right way for an employee to address perceived religious coercion prior to starting legal proceedings?

DQ61. The Supreme Court has squarely held that corporations enjoy Freedom of Speech. Should corporations also receive Free Exercise Protection?

DQ64. Legal significance of claimant’s refusal to reveal his religion in Reed?  Note that claimant clearly has to reveal for an accommodation claim.  Why might the claimant not wish to reveal his religion? Are these interests significant?  Are there reasons to require identification even if no accommodation claim?  Note Venters (also 7th Cir.) and Tillery deal with this differently.      (B) Particular Job Duties that Conflict with Religious Beliefs 1. Cases Involving Private Employers

Hellinger v. Eckerd Corp. 67 F.Supp.2d 1359 (S.D.Fla. 1999)

MORENO, District Judge. The Plaintiff, Hillel Hellinger, is suing the Defendant, Eckerd Corporation, for religious discrimination under Title VII for failing to hire him because he refused to sell condoms due to his religious beliefs. The … Court finds that

X-1 Eckerd has not met its burden of proving that there was no way to accommodate the Plaintiff without undue hardship. Therefore, the Defendant’s motion for summary judgment is denied. … BACKGROUND: In July of 1995, the Plaintiff, who is an Orthodox Jew, applied for a part-time position with Eckerd as a pharmacist. Eckerd owns and operates a chain of full service drug stores which sell prescription items, over-the-counter health related items, and general retail merchandise. The Plaintiff turned his employment application in to Scott Mazza, the then District Pharmacy Manger in the North Miami Area. When Plaintiff dropped off his application with Mazza, he was wearing a full beard, peyos (side curls), tzizuits (fringes under his shirt), and a yarmulke. Mazza only recalls that the Plaintiff had a beard and wore a dress shirt, but no tie. Mazza states that he did not make any assumptions regarding the Plaintiff’s religion at the time. Although Plaintiff cannot sell condoms due to his religious beliefs, he did not list any religious restrictions on his application or make any request for an accommodation. Nor did he inform Mazza about his religious beliefs or restrictions at the time he dropped off his application. In following up on the Plaintiff’s application, Mazza contacted Ken Wisniewski, one of the Plaintiff’s references. Wisniewski had been the Plaintiff’s supervisor at Rite- Aid, but had since left Rite-Aid and was working for Eckerd as a pharmacist. Wisniewski informed Mazza that the Plaintiff refused to sell condoms due to his religious beliefs and that he had refused to modify prescription prices. Based on his conversation with Wisniewski, Mazza decided not to pursue the Plaintiff’s application for employment. A brief description of Eckerd’s pharmacy department is pertinent to the case. The pharmacy department in each Eckerd store is generally located in the rear of the store. The pharmacists are primarily responsible for filling and selling prescription items, but may also be called upon to sell over-the-counter health items and all other retail merchandise sold in the store. The pharmacy department has its own cash registers, and customers may purchase items at the pharmacy counter rather than going to the front of the store. It is against Eckerd policy to request that a customer take items from the pharmacy counter to the registers at the front of the store unless the pharmacy department is so busy that it would be for the customer’s convenience to do so. Even then, the customer may choose not to go to another register. Eckerd staffs its pharmacy department with one pharmacist per shift at each store. Depending on the prescription volume of the particular store, there may be an overlap of one to two hours between shifts when more than one pharmacist may be working. Eckerd also employs drug clerks and pharmacy technicians to help staff the pharmacy department at some stores. The drug clerk and pharmacy technician’s primary duty is to ring up sales; however, they also take telephone calls, deal with insurance companies, and assist customers. Even in some stores that employ drug clerks and pharmacy technicians, there are times when the pharmacist may work alone. LEGAL ANALYSIS: … A. The Prima Facie Case: In order to establish a prima facie case of religious discrimination under the “failure to accommodate ‘theory,’ the plaintiff must prove: 1) that the Plaintiff had a bona fide religious belief that conflicted with an employment requirement; 2) that he informed his employer about the conflict; and 3) that he was discharged or not hired for failing to comply with the conflicting employment

X-2 requirement.” See Beadle v. Hillsborough County Sheriff’s Dept., 29 F.3d 589, 592 n. 5 (11th Cir.1994) (citing Brener v. Diagnostic Ctr. Hosp., 671 F.2d 141, 144 (5th Cir.1982)), cert. denied, 514 U.S. 1128, 115 S.Ct. 2001, 131 L.Ed.2d 1002 (1995); see also Chalmers, 101 F.3d at 1019; Toledo v. Nobel-Sysco Inc., 892 F.2d 1481, 1486 (10th Cir.1989), cert. denied, 495 U.S. 948, 110 S.Ct. 2208, 109 L.Ed.2d 535 (1990). The Plaintiff satisfies the first and third elements of the prima facie case. The Plaintiff alleges that his religious beliefs as an Orthodox Jew prevent him from selling condoms. The Defendant does not contest the sincerity of the Plaintiff’s beliefs. This belief conflicts with Eckerd’s requirement that a pharmacist may at times have to sell condoms. Moreover, Mazza, the District Pharmacy Manager, admits that he decided not to pursue the Plaintiff’s employment application after learning that the Plaintiff refused to sell condoms based on his religious beliefs. However, the Defendant argues that the Plaintiff fails to make a prima facie case of religious discrimination because the Plaintiff never informed Mazza of his religious beliefs or restrictions and did not ask to be accommodated. See Chalmers, 101 F.3d at 1019 (stating that a prima facie case under the accommodation theory requires evidence that the plaintiff informed the employer that his religious needs conflicted with an employment requirement and asked the employer to accommodate his religious needs) (citing Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir.1978)). In Chalmers, the Plaintiff conceded that she did not expressly notify her employer that her religion required her to write letters warning others that God was displeased with their behavior or request an accommodation. Id. at 1019-20. However, she argued that the notoriety of her religious beliefs within the company put the Defendant on notice of her need to send the letters. Id. at 1019-20. The Fourth Circuit rejected this argument, stating that, “knowledge that an employee has strong religious beliefs does not place an employer on notice that she might engage in any religious activity, no matter how unusual.” Id. at 1020. However, the Court added in a footnote, “[w]e emphasize that we do not hold, ..., that an employer’s knowledge of an employee’s sincere religious beliefs can never put an employer on notice of the possibility of some religious conduct by an employee at work, e.g. display of ashes on Ash Wednesday or wearing a yarmulke, etc. We simply hold that in this case the knowledge that Tulon had of Chalmers’ religious beliefs did not put it on notice that she would write, and send, personal accusatory letter to co-workers at their homes.” Id. at 1020 n. 3. The Plaintiff counters that Mazza had actual knowledge of the Plaintiff’s religious beliefs and his inability to sell condoms because Wisniewski, the Plaintiff’s former supervisor at Rite-Aid, informed Mazza that the Plaintiff had previously refused to sell condoms for religious reasons. Moreover, Mazza testified that he decided not to pursue Plaintiff’s application for employment based on the information he learned from Wisniewski. Because the Defendant had specific knowledge of the Plaintiff’s religious restrictions, the case at hand is more comparable to Brown v. Polk County, 61 F.3d 650, 654 (8th Cir.1995) ( reh’g en banc ), cert. denied, 516 U.S. 1158, 116 S.Ct. 1042, 134 L.Ed.2d 189 (1996), than to Chalmers. In Brown, the Eighth Circuit rejected the Defendant’s argument that because the Plaintiff never explicitly asked for

X-3 accommodation for religious activity, he could not claim the protections of the Title VII. Id. at 654. The Court stated that the Defendant requires “only enough information about an employee’s religious needs to permit the employer to understand the existence of a conflict between the employee’s religious practices and the employer’s job requirements.” Id. The Court in Brown found that the employer had notice of the Plaintiff’s conflict with an employment requirement because the Plaintiff had engaged in similar religious conduct on prior occasions and had been reprimanded. Id. at 654. The Court finds that while the employer must have knowledge of the plaintiff’s religious restrictions, the issue of whether the Plaintiff informed Eckerd of his religious restrictions is moot because it is clear from Mazza’s handwritten notes and deposition testimony that he was aware that the Plaintiff refused to sell condoms for religious reasons. The facts also support the finding that Mazza decided not to pursue the Plaintiff’s employment application based on this information. It would be hyper-technical, based on the facts of this case, to require notice of the Plaintiff’s religious beliefs to come only from the Plaintiff. The notice requirement is meant in part to allow the company an opportunity to attempt to reasonably accommodate the Plaintiff’s beliefs. The Defendant was not deprived of the opportunity to attempt to accommodate the Plaintiff’s beliefs merely because the notice did not come from the Plaintiff. However, the Court does not place the burden of inquiry on the employer and this decision should not be interpreted to create such a duty. B. Burden Shifts to Employer to Show Reasonable Accommodation or No Way to Accommodate without Undue Hardship: Once the Plaintiff establishes a prima facie case of religious discrimination, the burden shifts to the Defendant to show that it was unable to reasonably accommodate the Plaintiff’s needs without undue hardship. … In the case at hand, the Defendant made no attempt to accommodate the Plaintiff and argues that it would not have been able to accommodate the Plaintiff without undue hardship. In Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), the Supreme Court considered the degree of accommodation that is required of an employer under Title VII. The Court defined “undue hardship” as any act that would require an employer to bear greater than a “de minimis cost” in accommodating an employee’s religious beliefs. Id. at 84, 97 S.Ct. 2264, cited in Beadle, 42 F.3d at 636. “De minimis cost” entails not only monetary concerns, but also the employer’s burden in conducting its business, id. at 636, and unequal treatment of other employees, Hardison, 432 U.S. at 84, 97 S.Ct. 2264. Because the Defendant claims it cannot reasonably accommodate the Plaintiff without undue hardship, the Court’s analysis must focus on whether Eckerd has shown that it would have endured a greater than de minimis cost in attempting to accommodate the Plaintiff. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 68-69, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986), cited in Beadle, 42 F.3d at 637. The Defendant argues that the only way to accommodate the Plaintiff’s religious practice of refusing to sell condoms would be for Eckerd to: 1) hire an additional pharmacist to work side-by-side with the Plaintiff during his shift; 2) allow the Plaintiff to refuse to sell the condoms; or 3) request that the customers take their condom purchase to another register.

X-4 According to the Defendant, all three of these options impose more than de minimis costs on the Defendant because they cut into Eckerd’s profits and/or violate Eckerd’s customer service policy. Case law supports the Defendant’s argument that having to hire an additional employee in the pharmacy department to work alongside the Plaintiff to ensure that the Plaintiff would never have to sell condoms is more than a de minimis cost. See Brener, 671 F.2d at 146 (stating that the hiring of another pharmacist ‘would plainly involve more than a de minimis cost’); Lee v. ABF Freight Sys., Inc., 22 F.3d 1019, 1023 (10th Cir.1994) (stating that the cost of hiring an additional worker is more than a de minimis cost). As for the other two options suggested by the Defendant, it argues that if it allows the Plaintiff to refuse to sell condoms or to ask that the customer to go to another register, Eckerd could potentially lose customers, community goodwill, and revenue. Eckerd stresses that it is against Eckerd’s customer service policy to send a customer to another register unless a particular register is extremely busy. According to the Defendant, situations arise in which the pharmacist must ring up a customer’s purchases at the pharmacy’s cash register. This situation arises, for example, when a pharmacist is working alone in the pharmacy department and a customer asks to pay for items, including general retail merchandise, at the pharmacy’s cash register rather than going to the front of the store. The likelihood of a pharmacist working alone depends on the prescription volume done by the particular store, as well as other factors, such as the day of the week and the time of day. According to the Defendant, condom sales for the six representative Miami area stores in the fiscal years 1996 through 1998 and the first eight weeks of 1999 total $37,726.65. Eckerd argues that this amount is hardly de minimis. Eckerd also argues that if it allowed the Plaintiff to refuse to sell condoms or to send the customer to another register, it would in effect be allowing the Plaintiff to impose his religious beliefs not only on Eckerd, but on Eckerd’s customers, as well. The Plaintiff counters that the Defendant’s hardships are speculative at best given that Eckerd has never before had a pharmacist who refused to sell certain over-the- counter products and never attempted to accommodate the Plaintiff. While an employer may establish undue hardship without actually putting an accommodation into effect, it must “present evidence of undue hardship; it cannot rely merely on speculation.” Smith, 827 F.2d at 1086. As the Defendant admits, the sale of condoms is “unpredictable” and customer requests regarding the pharmacist’s participation in such sales are equally unpredictable. See Def.’s Mot. for Summ. J., at 18. Several circuits have required the employer to prove more than hypothetical hardship. For example, the Sixth Circuit stated, “[w]e are somewhat skeptical of hypothetical hardships that an employer thinks might be caused by an accommodation that has never been put into practice. The employer is on stronger ground when he has attempted various methods of accommodation and can point to hardships that actually resulted.” Draper v. United States Pipe & Foundry Co., 527 F.2d 515, 520 (6th Cir.1975); see also Toledo, 892 F.2d at 1490, 1492 (finding Defendant’s argument that it would incur increased risk of tort liability for hiring a driver who uses peyote in religious

X-5 ceremonies too speculative); Brown, 61 F.3d at 655 (finding that the defendants’ examples of the burden they would have to bear due to the Plaintiff’s spontaneous prayers and isolated references to Christian belief were insufficiently real and too hypothetical to satisfy the standard required to show undue hardship); Burns v. Southern Pac. Transp. Co., 589 F.2d 403, 406-07 (9th Cir.1978) (finding the defendant’s unofficial and unscientific polls regarding employee dissatisfaction with persons who received different treatment speculative), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979); Anderson, 589 F.2d at 402 (stating that undue hardship requires more than proof of co-worker’s unhappiness with a particular accommodation; the defendant must show an actual imposition on co-workers or disruption of the work routine). Aside from its argument that the Defendant’s proof of undue hardship is speculative, the Plaintiff urges the Court to reject the Defendant’s argument that there are only three possible ways to accommodate the Plaintiff’s religious restrictions. According to the Plaintiff, there are several other ways in which Eckerd could have reasonably accommodated him without suffering undue hardship. The Plaintiff suggests that the Defendant could have scheduled the Plaintiff to work during hours in which a drug clerk or pharmacy technician was also on duty. Another option the Plaintiff offers is that Eckerd could have placed the Plaintiff in a medium to high sales volume store where a drug clerk or pharmacy technician is always on duty. Plaintiff also suggests that the Defendant could have allowed the Defendant to work out his schedule with other pharmacists in order to avoid a scenario in which the Plaintiff would be the only employee working in the pharmacy department. The Plaintiff provides deposition evidence from a number of Eckerd pharmacists supporting the argument that the pharmacists often work out their shifts amongst themselves and are able to trade off hours if necessary. Generally, compliance with Title VII does not require an employer to give an employee a choice among several accommodations; nor is the employer required to demonstrate that alternative accommodations proposed by the employee constitute undue hardship. See Beadle, 29 F.3d at 592 (citing Ansonia Bd. of Educ., 479 U.S. at 68, 107 S.Ct. 367). However, in this Case, the Defendant offered the Plaintiff no accommodation and has failed to provide the Court with any evidence of actual undue hardship. Rather, the Defendant speculates that a situation may arise in which the Plaintiff will be the only employee working in the pharmacy department and a customer will want to purchase condoms at the pharmacy register. The Defendant goes on to speculate that if the Plaintiff refuses to do so or asks the customer to use a different register, Eckerd will lose customers and revenue. The Defendant has failed to meet its burden of proving that no accommodation could have been made without incurring undue hardship. Because a reasonable trier of fact could find that Eckerd could have accommodated the Plaintiff without undue hardship, the Defendant is not entitled to judgment as a matter of law. …

    

X-6 Kentucky Com'n on Human Rights v. Lesco Mfg. & Design Co. 736 S.W.2d 361 (Ky.App.1987)

HOWERTON, Chief Judge. The Kentucky Commission on Human Rights and the claimant, Cari L. Hardin, appeal from an order of the Oldham Circuit Court reversing and vacating an order of the commission. The commission determined that Lesco Manufacturing & Design Co. had engaged in unlawful religious discrimination and ordered it to pay Hardin her wages from December 22, 1983, to January 25, 1984, together with the sum of $250 as compensatory damages for embarrassment, humiliation, and mental distress resulting from the unlawful practice. … Hardin was employed by Lesco as a receptionist/secretary in June 1983. In September she was reclassified as a secretary/payroll clerk. She nevertheless continued to serve in a backup role for answering the telephone. On December 22, 1983, the president of Lesco instructed all personnel to answer the telephone with the greeting, “Merry Christmas, Lesco.” Hardin immediately informed the president that the greeting would compromise her beliefs as a Jehovah's Witness. He informed her that if she could not answer the phone as he instructed, he would write her a check. Hardin also consulted with her immediate supervisor and with the vice-president of the company. Both parties informed her that she must do as she was told. Later that day, Hardin was given a final check and she departed. … We next turn to the question of whether the facts and the law support the opinion and award of the commission. We agree with Hardin that the record contains substantial and probative evidence to support the commission's finding that she was discharged because of religious discrimination. In order to establish a prima facie case of religious discrimination, one must prove that (1) he has a bona fide belief that compliance with an employment requirement is contrary to his religious faith; (2) he informed his employer about the conflict; and (3) he was discharged because of his refusal to comply with the employment requirement. KRS 344.030(5) defines “religion” as “... all aspects of religious observation and practice, as well as belief.” Jehovah's Witnesses is an established and recognized religion. Hardin testified that saying the greeting “Merry Christmas” to another person, at any time or in any manner, would be considered by her as a violation of her religious beliefs. She was supported in this fact by the testimony of Robert Shane, an elder and member of the governing body of Hardin's Jehovah's Witnesses congregation. Hardin also supported her claim from exhibits taken from publications of Jehovah's Witnesses concerning the prohibition against the observance of Christmas. There is no question concerning the fact that Lesco's officers and Hardin's immediate supervisor were informed of the conflict between the instructions and Hardin's religious beliefs. Hardin sought to obtain some accommodation, but Lesco offered none. The record also appears clear that Lesco could have accommodated Hardin's religious beliefs without undue hardship to its business. This could have been accomplished by not requiring her to answer the phone during this season or she could have merely answered with the greeting “Good Morning, Lesco.”

X-7 Once a prima facie case has been established, as in Hardin's situation, the respondent, Lesco, must then prove that an accommodation to the claimant's beliefs will result in some undue hardship. This was not done. In Trans-World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977), the court ruled that more than a de minimis cost in the form of either lost efficiency or wages constitutes undue hardship which will relieve an employer of its duty to accommodate the religious beliefs of its employees. This standard was recognized in Kentucky Commission on Human Rights v. Commonwealth of Kentucky, Department for Human Resources, Hazelwood Hospital, Ky.App., 564 S.W.2d 38 (1978). Lesco argues that Hardin failed to establish that saying “Merry Christmas, Lesco” is a protected activity. In Palmer v. Board of Education of City of Chicago, 466 F.Supp. 600 (N.D.Ill.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 659 (1980), a kindergarten teacher and Jehovah's Witness was threatened with discharge because she refused upon religious grounds to instruct her students in the Pledge of Allegiance and to conduct instruction and activities involving certain national holidays, including Thanksgiving and Christmas. She sought an injunction claiming a violation of her First Amendment rights. The court determined that her refusal to teach certain patriotic songs and conduct holiday activities was not the subject of First Amendment protection. Lesco claims that Hardin's refusal to say “Merry Christmas” is not entitled to First Amendment protection. We agree with Hardin, however, that her complaint is not based on First Amendment rights but rather on KRS Chapter 344 (discrimination based on religion). We would further distinguish the two situations by pointing out that there is a pressing need for children to be taught certain patriotic activities and about certain national holidays and seasons. We believe that several distinctions can be drawn between Palmer, supra, and the case at bar. Finally, there is the question of whether the damages awarded to Hardin were supported by the evidence. We have absolutely no problem in finding that there is substantial evidence to support the award made by the commission. The commission ordered that Hardin's wages be paid from the time she was terminated until she was reemployed in January of 1984. The $250 award for humiliation and embarrassment was based on the evidence presented by Hardin that she was very upset and embarrassed when she had to leave her employment under these circumstances. Although she did voluntarily relate the reason for her unemployment to prospective employers, such was necessary to explain why she was presently unemployed. An overwhelming majority of citizens in this country observe the Christmas season as either a religious or national holiday, but the record clearly indicates that such observation and celebration is against the beliefs of Jehovah's Witnesses. While many people would consider that the mere statement or greeting of “Merry Christmas” would not endorse Christmas, any more than a Christian wishing a Jew a “Happy Hanukkah” endorses the Jewish faith, Hardin nevertheless satisfactorily proved that her statement would compromise her beliefs. It would not have been unreasonably difficult for Lesco to have accommodated Hardin in her beliefs, and the commission so found. If the commission's findings are based on statutes, law, and substantial evidence of probative value, its determinations must be supported. …

X-8 2. Cases Involving Public Employers Sedalia No. 200 School Dist. v. Missouri Com’n on Human Rights 843 S.W.2d 928 (Mo.App. 1992)

LOWENSTEIN, Chief Judge. This case presents a straightforward issue as to how far and to what extent an employer must go to accommodate the religious beliefs of an employee, under § 213.055.1(1)(a), RSMo 1986. As pertinent here, § 213.055.1(1)(a) makes it an unlawful employment practice for an employer to discharge or discriminate against an employee due to an individual employee’s religion or religious beliefs. At issue is an employee’s request to not be required to translate or sign to deaf students “cursing or bad language,” due to the employee’s religious beliefs. The Missouri Commission on Human Rights (Commission) brought this matter against the Sedalia School District (District) as part of the Commission’s duty to uphold the provisions of Chapter 213 relating to employment discrimination. The Chief Hearing Examiner for the Commission found for the District, the Commission itself disagreed and found against the District, and the circuit court reversed the Commission, on grounds of hardship to the District.FN1 FN1. The employee, Mary E. Schumaker, initiated the proceedings by making a complaint of discrimination to the Commission’s staff, which then investigated her claims. The executive director decided probable cause existed, and the Attorney General filed an action before the Commission on the employee’s behalf, but as a representative of the Commission not of Schumaker. Hence, this is not Schumaker’s claim, but the Commission’s.

The facts as found show that Mary E. Schumaker, a member of the United Pentecostal Church, was employed by the District as an interpreter and tutor for deaf students. During her three prior years employment she worked at an elementary school a year and then at a middle school for two years. In those positions, she either modified language she found objectionable, or informed students that the speaker had cursed or used “bad language.” Schumaker would not take God’s name in vain nor use everyday swear words. She interpreted the line in Gone With The Wind, “Frankly my dear, I don’t give a damn,” as “Frankly, I don’t care.” During a film shown in science class about an erupting volcano, a man who wouldn’t get off the mountain “was using bad language,” and Schumaker “didn’t interpret it.” The District then set up an advisory committee of deaf students’ parents and teachers to develop guidelines for interpreters. The committee procured a copy of the guidelines of the Registry for Interpreters of the Deaf (R.I.D.), a nationally recognized organization, and after deliberation, adopted the guidelines. Set out below is a portion of the R.I.D. guidelines important to this case. The advisory committee felt it was necessary for deaf students to develop socially, and that students should receive exact information and make their own judgments; the underlined sentence was not adopted by the committee: Interpreter/transliterators are not editors and must transmit everything that is said in exactly the same way it was intended. This is especially difficult when the interpreter disagrees with what is being said or feels uncomfortable when profanity is being used.

X-9 Interpreter/transliterators must remember that they are not at all responsible for what is said, only for conveying it accurately. If the Interpreter/transliterator’s own feelings interfere with rendering the message accurately, he/she shall withdraw from the situation. Before the guidelines were formally adopted, Schumaker told District personnel she couldn’t interpret “everything” due to her religious convictions against using “bad language;” never has anyone questioned the genuineness of Schumaker’s religious beliefs. The District’s board then adopted the committee’s guidelines, including the requirement of literal word for word interpretation to the deaf students. When it came to contract time, Schumaker wrote on her contract “1) I request to go to primary level, 2) I request from parent to tell the child they are cursing or using bad language.” Her feeling was that there would be fewer obscene words used at the primary school. However, the District, due to Schumaker’s 22 years of signing experience, wanted to use her at the higher grade levels, rather than in primary levels, where other interpreters were better suited to work. Because she would not work at the District’s high school under the new guidelines, she was terminated. This court reviews the Commission’s conclusion that the District failed to accommodate her religious beliefs by making no attempt to put her in a grade school, or acceding to her proviso of being able to talk to the deaf students’ parents about her non-literal interpretations. In reviewing discrimination suits, Missouri courts have given deference to federal cases construing similar claims under federal law, Laclede Cab v. Com’n on Human Rights, 748 S.W.2d 390 (Mo.App.1988); Kansas City v. Mo. Com. on Human Rights, 632 S.W.2d 488, 490 (Mo. banc 1982). The plaintiff or employee carries the burden of establishing a prima facie case of religious discrimination, McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This is accomplished when the plaintiff demonstrates 1) a bona fide belief that compliance with an employer’s requirement would be contrary to his or her religious belief, 2) the employer has been so notified, and, 3) the employee was discharged for failing to comply with the requirement. Schumaker and the Commission made such a case. The burden then shifts to the respondent or the employer to show it could not accommodate the employee’s beliefs without incurring undue hardship, Brener v. Diagnostic, 671 F.2d 141, 144 (5th Cir.1982). This accommodation to a religious belief requires the employer to find and utilize alternatives which 1) do not compromise the employment entitlements of others, or 2) which do not require the employer to incur more than de minimis costs, Trans World Airlines v. Hardison, 432 U.S. 63, 83-84, 97 S.Ct. 2264, 2276, 53 L.Ed.2d 113 (1977). If the employer has satisfied this burden to accommodate, which is the pivotal issue in the case at bar, then the plaintiff or employee must by a preponderance of evidence show that the employer’s efforts were merely pretextual, Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Although not binding on the Commission, the Chief Hearing Examiner for the Commission decided in favor of the District. The Hearing Officer first noted that during the District’s solicitation of her’s and others’ views when considering and adopting guidelines, no accommodation could be given Schumaker, nor anyone else in her

X-10 position, without bending those guidelines. He concluded therefore that once the guidelines were in place nothing could be done. This court does not agree with that conclusion, but feels an ultimate determination must rest on whether the guidelines and their implementation improperly trammelled upon Schumaker’s religious beliefs. The Hearing Officer did conclude that the accommodation of Schumaker would result in an undue hardship on the District, and her placement at the primary level would be wasting her talents, as the District needed her at the higher grades, plus there would be no guarantee that primary students would not use offensive language. The Commission decided otherwise in its Decision and Order, and found telling the fact that the District did not utilize the R.I.D. guideline language allowing the interpreter to withdraw from the situation if their own feelings interfered with an accurate message being conveyed. It did note obscene words were used on the elementary school playground, but that although the “need to interpret obscenity ... might occur, it seldom did take place.” The Commission, noting Missouri Regulations comporting with the federal cases mentioned supra, i.e., 4 CSR 180-3.050,FN2 found that after adoption of guidelines the District made no further effort to satisfactorily accommodate Schumaker, and found a violation by the District. FN2. This rule states as follows, with emphasis added: The employer has an obligation to make reasonable accommodations to the religious need of employees and prospective employees where such accommodations can be made without undue hardships on the conduct of the employer’s business. Such undue hardship, for example, may exist where the employee’s needed work cannot be performed by another employee of substantially similar qualifications during the period of absence of the Sabbath observer. The commission will review each case on an individual basis in an effort to seek an equitable application to these rules to the variety of situations which arise due to the varied religious practices of the people of this state.

The circuit court’s legal conclusion was adverse to the Commission. The court entered a judgment that the District had the right in adopting guidelines to “conduct ... its business of providing education to all students ...,” and was not constrained to follow the R.I.D. guidelines. The court found it would be a hardship to, as the Commission argued, have another interpreter come in to a classroom and “interpret the materials or presentations, deemed by complainant to be offensive-an obvious hardship to other instructors, other students and the practicability of presenting a coherent instructional program. Such a motion would require lectures to be halted, not to mention dramatic presentations, film presentations, etc.” The circuit court concluded that the policy guidelines were not directed at Schumaker nor were they discriminatory, and putting her in a grade school classroom would not solve the problem, but any problem might only occur with less frequency. The circuit court concluded that there was nothing in the record that the District’s guidelines amounted to anything other than “sound and universally accepted concepts in deaf education.” The legal conclusion of the circuit court is adopted. … The Commission made a prima facie case under the previously enunciated requirements of Trans World Airlines, supra, but this court rules that the Commission’s decision was unreasonable. The Sedalia School District could not have accommodated Schumaker’s religious beliefs without

X-11 compromising the educational entitlements of deaf students, hearing impaired students or even students with full range of hearing. Requiring a literal translation of classroom conversation is not an unreasonable guideline. Neither Schumaker nor the Commission could articulate what her religious beliefs were, other than that she did not want to use or repeat any words which she found offensive. Neither could they reasonably define what words were included in her personal taboo list. This would have made the District entirely beholden to Schumaker in making ad hoc decisions about which words to translate. The District should not be required to subject itself to a potentially arbitrary administration of its policy. Due to the virtual impossibility of accommodating Schumaker’s religious beliefs, no further meetings or attempts to negotiate with her would have netted a satisfactory compromise. To require the District to assign a specific teacher to an area where a compromising situation might arise is unreasonable. Requiring a shuffling of other interpreter’s in and out of a classroom on an ad hoc basis would disrupt attempts to educate. Moving interpreters into classrooms where their abilities and experience are either under-used or over-taxed is unreasonable. Similarly, having an interpreter pre-censor work with parents would create an ill-advised policy, and would be subject to the same definitional problem previously mentioned-there being no information as to what words or in what context those words would offend the employee. Hardship and more than a de minimis cost are demonstrated by the District. The District’s attempts to accommodate deaf students should not be thwarted by deciding its efforts to accommodate Schumaker’s religious beliefs were insufficient. No further meetings or attempts would have netted a satisfactory compromise without an undue hardship to the employer and without compromising the educational process for deaf students and all other students. There is no evidence or finding in this case that by not adopting the national R.I.D. guidelines in toto the District abrogated any duty. Finally, it should be mentioned that the nature of the employer’s business, educating students of many abilities and some impairments, bears on this result. This business presents a difficult task at the very least, and the burden on the District to accommodate Schumaker’s religious beliefs by halting classes or bringing in a second interpreter outweighs any burden on Schumaker. Under the standard of review, the result reached by the Commission finding discrimination is unreasonable. The District’s regulation requiring literal translation was reasonable as a legitimate means of giving students social and educational skills and awareness, and was applied here without discrimination. Cf. Kisco Co. v. Missouri Com’n on Human Rights, 634 S.W.2d 497, 498 (Mo.App.1982). In conclusion, the District’s role as a public school, the parent/teacher recommendation of the guidelines, the District’s subsequent adoption of those guidelines, Schumaker’s lack of specificity regarding what she will or will not translate, and the inability of the District to alter the interpreter program without extreme hardship, leads this court to reverse the decision of the Commission as unreasonable. … SPINDEN, Judge, concurring. I concur but feel compelled to comment that Chief Judge Lowenstein’s opinion places far too much emphasis on the reasonableness of the District’s policy. The opinion agrees with the trial court’s conclusion that the District’s

X-12 policy is “sound,” but it is not the District’s policy which we must review. In this case, we must presume the District’s policy to be reasonable. Our duty is to judge whether the District has taken sufficient steps to accommodate Mary Schumaker’s sincerely-held religious beliefs. Because she is not able to articulate with any reasonable amount of definiteness what words would be included in her personal taboo list, she leaves the District and the parents of the deaf students beholden to her ad hoc administration of the District’s policy. This is unreasonable and makes accommodating her religious beliefs virtually impossible. Hence, pursuant to Regulation 4 CSR 180-3.050 and the case law cited by Chief Judge Lowenstein, I conclude that accommodating her religious beliefs would place an undue hardship on the conduct of the District’s educational policy. BERREY, Judge, dissenting. I must respectfully dissent from the majority opinion. The school board did not attempt to accommodate the religious beliefs of Ms. Schumaker. The school board did not overcome its burden by proving it made any effort, let alone a good faith effort, to accommodate those beliefs. Had the school board met with Ms. Schumaker, it is entirely possible an accommodation could have been achieved. Refusing to meet with her and discuss her concerns shut the door on such possibility and was not in the spirit of the law. The school board took no initial steps to obviate Ms. Schumaker’s concerns-a critical failure under the law and one which the majority brushes aside. … We must affirm the commission’s decision unless it is arbitrary, capricious or unreasonable or the commission abused its discretion. … All parties agree that Ms. Schumaker met her burden in establishing a prima facie case, at which time the burden shifted to the employer school district to prove that it made good faith efforts to accommodate those beliefs. The school district must show that it has taken “some initial steps to reach a reasonable accommodation of the particular religious belief at issue.” Id. (quoting American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986)). If the school district fails to propose an accommodation, it must accept Ms. Schumaker’s proposal or demonstrate that her proposal would cause the district undue hardship. Id. Ms. Schumaker proposed that she be placed in an elementary school and that she be allowed to talk with the parents of the student to which she was assigned to determine if they objected to a less literal translation of objectionable words. The school district representatives testified that Ms. Schumaker’s talents would have been underutilized had they placed her at the elementary level, as she requested. It seems apparent, however, that underutilization is preferable to completely losing her talents as an interpreter. Additionally, because each interpreter is, for the most part, assigned to only one student for the entire year and interpreters are not generally required to interpret during recess or in the hallways, where objectionable language is most likely to occur, Ms. Schumaker’s proposals are at least plausible enough to be considered by the board. That is not, however, the extent of the district’s responsibility. It must attempt to reach an accommodation with Ms. Schumaker. In the case at bar, there is no evidence whatsoever that the school district took any steps to attempt to reach an accommodation of Ms. Schumaker’s religious beliefs nor is there any evidence that any possible accommodation was ever discussed by the school

X-13 board or any persons responsible for making such assessment. Ms. Schumaker was informed from her initial objection to the guidelines that if she was unable to abide by them, she would have to resign or she would not be recommended for continued employment. When confronted with the standard of review that this court is bound by, I cannot concur with Judge Lowenstein’s opinion. We must affirm the decision of the commission if there is substantial evidence to support it. The evidence adduced at the hearing is more than adequate to support the findings of the commission and, therefore, I would reverse the decision of the circuit court and affirm that of the commission.      Parrott v. District of Columbia 1991 WL 126020 (D.D.C. 1991)

SPORKIN, District Judge. Plaintiff, Daniel Joseph Parrott, appearing pro se, is a District of Columbia police sergeant whose police powers were revoked on December 8, 1989. He complains that this suspension was based on his religious beliefs and alleges violations of Title VII, various constitutional rights including his First Amendment rights, and violations of District of Columbia law. He seeks damages, reinstatement, and permanent exemption from abortion rescue detail. Defendant, the District of Columbia, has moved for summary judgment on all of plaintiff’s claims. Plaintiff has cross-moved for summary judgment. After consideration of all the papers submitted in this case as well as oral argument, this Court finds that there are no material facts in dispute. Plaintiff is unable to prove any of his claims even on the facts as submitted by him, and he is entitled to none of the remedies he seeks. Therefore, summary judgment will be entered in favor of defendant. Background: … Daniel Parrott has been employed by the District of Columbia Metropolitan Police Department (“MPD”) since December 14, 1981. Until the incident complained of in this action, his behavior seems to have been considered satisfactory, and he was promoted to the rank of sergeant in August 1989. On October 2, 1989, Sergeant Parrott was detailed to the MPD’s Civil Disturbance Unit (“CDU”), a special unit handling civil disturbances and demonstrations. For various reasons, plaintiff objected to this detail and voiced his intention not to participate. He did ultimately report for training; however, he immediately proceeded to seek an exemption from abortion “rescue” missions.FN2 FN2. These “rescue” missions are attempts by anti-abortion demonstrators to prevent abortions from taking place. Sergeant Parrot understands these missions as “citizen arrests of abortion clinics.” The CDU detail precipitated Sergeant Parrott’s expression of very strongly-held beliefs in opposition to abortion as well as his unwillingness to arrest anti-abortion demonstrators who were engaged in rescues. Although it is clear that Sergeant Parrott has always been a deeply religious man, this Court has heard no evidence concerning whether Sergeant Parrott had previously expressed these views within the MPD or whether his religious convictions had ever before been an issue in the performance of his duty. There

X-14 has been significant evidence, however, that during the month following his CDU detail in October 1989, plaintiff’s concern with abortion became the primary focus of his interaction with the MPD. During the weeks following his notice of CDU detail, plaintiff repeatedly discussed his intense opposition to abortion and attempted to enlist the support of various officials at the MPD for his convictions, by phone, at the precinct, and while on duty. He visited Judge Oberdorfer’s chambers in the United States Courthouse in order to share what he labelled special “intelligence” on abortion and rescue missions, but was directed to leave. He then visited the MPD’s General Counsel’s office with this same information, and was again asked to leave. He submitted several copies of a long letter detailing his views on abortion to the MPD, and later submitted a memo in the name of the MPD advocating these same views. Sergeant Parrott’s behavior was not limited to this religiously zealous advocacy. He also declared to the MPD that he would be unable to arrest participants in rescue missions. Examination of his position reveals that Sergeant Parrott is of the opinion that “those persons who were actively attempting to directly save unborn children’s lives at abortion clinics” are not breaking the law. He is willing to arrest anti-abortion demonstrators only in contexts other than “rescue” missions. Sergeant Parrott has articulated his position as follows: “Each individual must judge for themselves whether a governing authority is binding ... or abolished by the power of the Spirit.” Accordingly, he repeatedly told his superiors that he would go to jail himself rather than arrest these demonstrators, even if their “rescue” activities directly violated District laws. In addition, according to facts supplied by Sergeant Parrott himself, he informed his superiors that he would be unable to direct his officers to make arrests of demonstrators actively engaged in a rescue mission. On November 9, 1989 Sergeant Parrott was ordered by Deputy Chief Raines to submit to a physical examination and to consult with Dr. Jack Raher, the MPD psychiatrist. After three days of tests, Dr. Raher recommended that Sergeant Parrott submit to a formal psychological personality evaluation, which he did. The resulting evaluation, made by Dr. Holmes, suggested that plaintiff suffered from a type of mental disorder which includes schizophrenia and psychosis. Sergeant Parrott has objected to the content of the psychological tests as anti- religious and therefore unconstitutional. He has also strenuously objected to their accuracy, alleging that the results were “due to prejudice towards his beliefs of conscience concerning abortion.” Pl.Mo.Prelim.Inj. at 22. Sergeant Parrott’s objection extended to the physicians as well, who he described as incompetent and involved in a conspiracy against him. These feelings were communicated by Sergeant Parrott onto MPD Chief Fulwood’s telephone answering machine. Following this call, Captain Medaris immediately set up a conference with plaintiff. This meeting led to the suspension of his police badge and the surrendering of his sidearm. Sergeant Parrott was first assigned to light duty and was later transferred to the MPD auto shop.

X-15 Dr. Raher, the MPD psychiatrist, urged Sergeant Parrott to seek mental help during this period, but he refused to do so. He did meet with Dr. Raher again on January 4, 1990. According to plaintiff, Dr. Raher expressed the opinion at that meeting that Sergeant Parrott should consider commitment to a mental institution. In response, plaintiff sought an opinion from Dr. Ginzberg, a psychiatrist not related to the MPD. On September 2, 1990, Dr. Raher informed Sergeant Parrott that the MPD was initiating procedures to retire Sergeant Parrott on mental disability. Those procedures have been complied with, and an opinion on this matter is pending before the Police and Firefighters Retirement and Relief Board. While awaiting the opinion on that matter, Sergeant Parrott filed this action on January 11, 1991. He currently continues to receive a paycheck, although he is not actively serving as a police officer. He is currently on administrative leave. Discussion: Accommodation Claim: Sergeant Parrott first argues that the MPD violated Title VII and the First Amendment by refusing to excuse him from CDU detail. Section 701(j) of Title VII requires that an employer “reasonably accommodate ... an employee’s ... religious observance.” The Supreme Court has ruled that an employer’s duty to reasonably accommodate religious beliefs required that the employer take on no hardship which would involve more than a de minimis cost. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Plaintiff asserts that it would have been a de minimis cost to the MPD to excuse him from CDU detail, or to allow him to refrain from participating in those aspects of CDU that would have brought him into contact with “rescue missions.” Plaintiff’s argument, both to the MPD and before this Court, was based on the thesis that he was the only officer asking for this specific exemption from duty. Accordingly, Sergeant Parrott argues, the MPD will not be burdened at all by accommodating his religious needs. It is unlikely, however, that Sergeant Parrott is the only member of the MPD who has religious objections to abortion. Moreover, there are certainly countless situations in which officers are called upon to uphold the law despite the fact that it interferes with their religious teachings or their moral preferences. However unfortunate this may be, it is inevitable, and special allowances cannot be made for each individual need. The importance of uniformity and discipline on the police force cannot be overstated. The MPD Chief of Police is under a mandate to exact from all members of the police force “unquestioned loyalty” and “strict obedience.” 6A DCMR § 800.5. This uniform obedience is required for the orderly and efficient operation of police business. Id. The need for uniformity to promote order and discipline has been recognized and sanctioned by the Supreme Court. See, e.g., Kelly v. Johnson, 425 U.S. 238 (1976); Vorbeck v. Schnicker, 660 F.2d 1260, 1263 (8th Cir.1981), cert. denied 455 U.S. 921 (1982). If all officers were permitted, as Sergeant Parrott requests, to abstain from enforcing laws which they believed were inappropriate, it would be impossible for the MPD to organize its forces and to guarantee that there would be a sufficient number of officers at any given moment to enforce any given law. The dependability of the police force would be destroyed. It is a police officer’s duty to uphold the law which has been

X-16 passed by the people in order to protect society. Sergeant Parrott is free to work with religious and civic organizations to bring about a change in the laws concerning abortion. Until such time as they do change, however, it is his duty as a law enforcement officer to protect individuals inside abortion clinics from others’ interference with their legally protected rights. Title VII’s guarantee of de minimis accommodation does not contemplate the type of dispensation Sergeant Parrott requests from the police force. The First Amendment does not afford plaintiff any additional protection in this regard. The assignment to CDU detail and the MPD requirement that he serve such duty were valid, uniformly applied, non-discriminatory directives which plaintiff is not excused from obeying. The Supreme Court, in the relatively recent case of Employment Division, Department of Human Resources of Oregon v. Smith, 110 S.Ct. 1595, 1600 (1990) has made clear that religious beliefs do not entitle one to accommodations from “compliance with an otherwise valid law.” To permit every individual to decide for himself which valid, rational laws could be ignored due to personal religious beliefs would “permit every citizen to become a law unto himself.” Id., at 1600. The obligation to perform the CDU detail is a duty applied uniformly to all police officers. This obligation does not inherently address anyone’s religious beliefs or prohibit private religious beliefs or practices. It is simply one of many police regulations concerning the method by which the MPD carries out its duties to enforce the law. Police regulations concerning the duties and discipline of officers are legitimate laws which the District of Columbia is certainly entitled to regulate. Moreover, they are compelling regulations, necessary to maintain an efficient organization to carry out important law enforcement duties. See, Kannisto v. City and County of San Francisco, 541 F.2d 841, 844 (9th Cir., 1976). The Supreme Court has noted, in fact, that police organizations can “insist upon a respect for duty and a discipline without counterpart in civilian life.” Schlessinger v. Councilman, 420 U.S. 738 (1975). The Constitution simply does not require that Sergeant Parrott’s religious beliefs be accommodated by excusing him from a uniformly applied, legitimate police duty. Thus, like his Title VII claim, Sergeant Parrott’s First Amendment claim must fail. …      Haring v. Blumenthal 471 F.Supp. 1172 (D.D.C. 1979).

HAROLD H. GREENE, District Judge. In this action plaintiff requests relief from alleged religious discrimination in violation of Title VII of the Civil Rights Act of 1964…. Plaintiff is an employee of the Internal Revenue Service, occupying the position of Tax Law Specialist, GS-12, in the Technical Branch of the Exempt Organizations Division.[FN2] He applied for promotion to Tax Law Specialist (Reviewer), GS-13, in that division, but was turned down, allegedly on account of his Catholic religious belief and conduct.[FN3] The government contends that there also were other reasons for plaintiff’s failure to achieve promotion, but for purposes of the present motion it concedes that plaintiff was not promoted solely because of his inability or unwillingness

X-17 to abide by Internal Revenue Service policies on abortion.[FN4] After receiving the agency’s final decision on December 19, 1977, plaintiff filed the instant action which … alleges violations of his rights under Title VII. Defendant has moved for … summary judgment …. FN2. The Exempt Organizations Division is responsible for reviewing applications submitted by organizations seeking tax exempt status, and for approving the applications if they are in compliance with section 501 of the Internal Revenue Code, 26 U.S.C. §501. FN3. Plaintiff does not claim discrimination because he is a Catholic, but because he “sought to lead the life of a Roman Catholic.” In fact, it appears that three of the four persons granted the reviewer position in the recent promotion action are Roman Catholics. FN4. The principal focus here is on the Internal Revenue Service’s policies concerning organizations which advocate or conduct abortions, but plaintiff has stated that his position would be the same with respect to any organization “which violates or promotes and encourages violations of the Ten Commandments of God and violations of God’s Natural Law,” including, in addition to the promotion of abortion, those promoting homosexuality, worship of the devil, euthanasia, atheism, legalization of marijuana, immoral sexual experiments, sterilization or vasectomies, artificial contraception, and witchcraft. For the sake of simplicity, these matters will generally be referred to hereinafter under the abortion label.

Under section 501(a) of the Internal Revenue Code, 26 U.S.C. §501(a), organizations more specifically designated in sections 501(c)(3) and (c)(4) as being organized for religious, charitable, educational, or social welfare purposes, are exempt from income taxation. Within the framework of these statutory provisions, the Internal Revenue Service has granted tax-exempt status to abortion clinics and to various organizations involved with homosexual rights…. [Plaintiff argues] that to deny him a promotion solely because of his unwillingness to process tax exemption applications for purposes which he regards as repugnant to his religious principles violates his rights under Title VII. … On this motion for partial summary judgment,[FN19] plaintiff claims that the Internal Revenue Service is able without undue hardship to accommodate its operations to his practices, while the government argues that, for a variety of reasons it cannot do so. FN19. As noted Supra, the government has asserted that there are reasons other than plaintiff’s unwillingness to process certain exemption applications for its failure to promote him. However, these reasons are not before the Court on the instant motion.

First. The Internal Revenue Service contends that plaintiff’s refusal to handle applications for exemptions from persons or groups which advocate abortion or other practices to which he objects creates problems with the efficient and expeditious operations of the office in which he works. As indicated, plaintiff seeks promotion to the position of reviewer in the Exempt Organizations Division. Such reviewers have considerable independent or quasi-judicial authority, for when a reviewer agrees with a tax law specialist recommendation to grant tax exempt status to an organization, he is authorized to issue a final favorable ruling. [FN20] Additionally, reviewers have administrative authority for they supervise a

X-18 number of other persons. Currently, two reviewers are assigned to each group of 8-12 tax law specialists, and sometimes a reviewer must also substitute as an acting supervisor, leaving only one active reviewer available for the group. The Service contends that because of these staffing patterns plaintiff’s refusal to process applications he considers objectionable would make it difficult to operate the Exempt Organizations Division were he to be promoted to one of the reviewer positions.[FN21] FN20. When there is disagreement between them, the dispute is reviewed between them and may ultimately be resolved elsewhere. FN21. IRS has accommodated plaintiff in his capacity as a tax law specialist by not assigning such applications to him.

Plaintiff’s affidavit which for present purposes must be assumed to be true asserts that in his experience the types of cases with which he might have a moral or religious problem constitute only a minute percentage of the total volume of applications for exemption processed by a reviewer in the Exempt Organizations Division. He estimates that percentage to constitute “a fraction of 1% Of the total cases or at most less than 2%.” [FN22] Assuming this volume of cases to be accurate, it appears that the Internal Revenue Service should have no difficulty, on a purely mechanical level, to accommodate itself to the overt manifestations of plaintiff’s beliefs. The applications for exemption which plaintiff refuses to handle could clearly be processed without undue hardship or burden to the Service, or any significant expense or loss of time, by another reviewer.[FN23] On this basis, therefore, defendant cannot meet the “undue hardship” test of section 703(a)(1). FN22.. This general estimate was not contradicted in the deposition of Milton Cerny, Assistant Chief of the Branch. FN23. If one of the two reviewers assigned to a particular group of tax law specialists should be absent for a few days for one reason or another, and plaintiff, as a reviewer, were to be excused from processing objectionable applications, IRS operations would still not be significantly impaired, for even in the normal course of events there is a delay of several weeks or months between the submission of applications for tax exemption and the IRS decision thereon. Second. Defendant’s next set of arguments may be grouped together for purpose of analysis, for all of them relate in one way or another to the Internal Revenue Service’s fears that a precedent here would eventually come to complicate its operations to an unreasonable degree. Thus, it is claimed that, if this plaintiff were permitted to become a reviewer notwithstanding his refusal to handle certain types of cases, others will be encouraged to do likewise, and a point will soon be reached where the agency will be faced with very real and substantial practical problems. Alternatively, it is contended that plaintiff’s own views appear to be subject to change and amplification; that he began by refusing to deal with abortion and homosexuality, an area which he has now expanded to encompass “any organization which violates or promotes and encourages violations of the Ten Commandments of God and violations of God’s Natural Law” (see note 4 supra); and that it is impossible to predict how plaintiff’s views will further change in the future and what proportion of a reviewer’s workload might have to be diverted to accommodate

X-19 those views. Finally, defendant suggests that, if plaintiff must be promoted to a reviewer position notwithstanding his announced policies, a precedent will be set for his promotion, or that of others like him, to higher and yet higher supervisory levels, where both from the point of view of administrative efficiency and of policy it will become less and less possible to avoid undue hardship to the Service. In short, defendant suggests, a line must be drawn at some time, and it might as well be here and now. That line of reasoning, in all of its various aspects, misconceives the appropriate standard under the Civil Rights Act. The intent and effect of the 1972 amendments to the Act, as the Supreme Court pointed out in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2271, 53 L.Ed.2d 113 (1977) was to “make it an unlawful employment practice under §703(a)(1) for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” While that principle is clear, unfortunately the applicable case law provides no significant guidance on the question of whether the “undue hardship” standard may be met by an employer’s assumption that, should he accommodate one employee in one situation, it may well be that undue difficulties will arise if others were to assert the same or similar rights. The TWA case itself is not illuminating on that issue, for it turned on the circumstance that an accommodation of an employee who refused to work on Saturdays would have amounted to a breach of the company’s collective-bargaining agreement with a labor union (432 U.S. at 79, 97 S.Ct. 2264; see also, Huston v. Local No. 93, 559 F.2d 477 (8th Cir. 1977); Ward v. Allegheny Ludlum Steel Corp., 560 F.2d 579 (3rd Cir. 1977)) and on the fact that to accommodate the employee would have entailed a specific financial burden on the employer. Neither of these factors is present here. Other decisions by lower courts have sometimes held for and sometimes against the complaining employee, depending upon particular facts and circumstances, but generally they have failed to explore what appears to be the critical issue: whether the level of hardship must be measured by the accommodation of the one employee seeking relief or by the precedent-setting effect of the grant of such relief to him and the conceivable actions of others. In the absence of authoritative guidance, it seems to this Court that “undue hardship” must mean present undue hardship, as distinguished from anticipated or multiplied hardship. Were the law otherwise, any accommodation, however slight, would rise to the level of an undue hardship because, if sufficiently magnified through predictions of the future behavior of the employee’s co-workers, even the most minute accommodation could be calculated to reach that level. Under the Act, employers must make “reasonable accommodation” to the religious beliefs of their employees a relative term which depends upon the facts and circumstances. Redmond v. GAF Corp., 574 F.2d 897 (7th Cir. 1978). Unless the statutory mandate is to be rendered meaningless, it must be held to provide that until facts or circumstances arise from which it may be concluded that there can no longer be an accommodation without undue hardship, the employee’s religious practices are required to be tolerated. This Court is not prepared to adopt a construction which would

X-20 emasculate this law designed to protect religious liberty and the free exercise of religious practices…. There is, moreover, no reason to believe either that this plaintiff’s zone of objectionable policies will grow significantly or that his stand will have a mushroom effect on other IRS reviewers. Irrespective of how plaintiff’s objections to IRS policies are phrased, it appears, on this record at least, that they will still constitute only a small segment of his workload. Most IRS exemption decisions, it may safely be assumed, are in the more pedestrian realms of the financial world, and even when they involve other public policy issues, they are not likely very often to touch upon plaintiff’s category of objectionable policies, however much those policies may have been inflated most recently to give them their broadest and most diffuse expression. Further unlike, for example, the typical Saturday workday problem which has been before the courts in so many different guises there is little real incentive for others to emulate this plaintiff. It is not probable that many employees will carry convictions of a sufficiently stubborn nature as would cause them to take the fairly extreme route this plaintiff has chosen. Unlike prohibitions on laboring during certain days of the week, the refusal to make decisions with respect to specific issues does not appear to be a widespread and deeply ingrained religious tenet.[FN27] FN27. Employees are also unlikely to enjoy any practical benefits in terms of workload from being relieved of the obligation to make these particular decisions, since presumably an equal number of other cases would be assigned to them to make up for any deficiency.

In any event, however, if, contrary to the assumptions made by the Court, it subsequently develops either that plaintiff enlarges the zone of his objections to such an extent that it encompasses a significant part of his assigned workload, or that other IRS employees follow his example and refuse to handle a significant number of applications for tax exemptions on grounds of offensiveness to religious belief, then at some point the level of “undue hardship” provided for in the statute will have been reached, and defendant will then be free to take all appropriate and necessary action. Should such an eventuality develop, the employee or employees involved would not be protected by section 703(a)(1) of the Act from failures or refusals to hire, discharge, or take other action to protect the efficient conduct of the employer’s business.[FN28] FN28. Similarly, it may well be that, should this plaintiff or some other employee with similar views aspire to an even higher-level supervisory position, undue hardship to the employer’s business interests may become more readily apparent (perhaps because of the unavailability or shortage of alternates) notwithstanding a relatively small volume of cases involved. That decision, too, cannot be anticipated on this record.

Third. The government raises a fundamental question of principle. It argues that what is at stake here is the integrity of the Internal Revenue Service and, indeed, of the Nation’s uniform tax system itself. Citizens are entitled to have confidence in that Service and that system, and this confidence, so it is claimed, would be jeopardized if plaintiff’s insistence on his interpretation of law and public policy were allowed to prevail. The Service also argues in this connection that different standards must be applied to judicial

X-21 or quasi-judicial officers [FN29] than to employees who carry out mere ministerial functions, and that any deviation by such an officer from duly promulgated law and policy must be regarded as Per se inflicting an undue hardship on the government which employs him. FN29. It may be assumed that a reviewer with final decision-making authority with respect to many tax exemption applications is in that category.

Those arguments would be extremely persuasive, even conclusive, if plaintiff were taking the position that he would deny tax exemptions to organizations to whose policies he objects. Indeed it may be that, at one time in the course of the administrative proceedings, he took that very position. But that is not the posture of this case now. Plaintiff does not assert that he will tailor his decisions to his beliefs but merely that, when there is a conflict between his beliefs and what the law would require him to decide, he will in effect disqualify himself and request that the matter be reassigned to another reviewer. It is difficult to see how that stand could impair taxpayer confidence in the tax system or the impartiality of the IRS. On the contrary. Decision-makers at all levels not infrequently face conflicts of interest financial, family-related, or concerning matters of conscience or fixed opinion. Officials are justly criticized when they make decisions notwithstanding interest or bias, [FN30] particularly when there is no disclosure. Law and public policy encourage disclosure and disqualification, and public confidence in our institutions is strengthened when a decision-maker disqualifies himself on account of financial interest, insuperable bias, or the appearance of partiality. In a very significant sense, therefore, public policy favors the course of disclosure of bias and disqualification that this plaintiff has chosen, and that course may not be regarded as impairing the integrity of the IRS decision-making function. FN30. Every individual obviously is the product of his education and experience, and he brings to his decisions the baggage of that background, sometimes without even being aware of its existence. Decision-makers must struggle not to permit such factors to be a burden on their impartiality, and where they recognize its existence and inevitable influence, voluntary disclosure or disqualification are the appropriate remedies.

The government also suggests that it should not have to accommodate itself to the kind of internal dissent from its policies exemplified by plaintiff’s refusal to process applications for tax exemption from abortion clinics. The short answer is that provided in the Civil Rights Act itself which directs that, absent undue hardship to its operations, the Internal Revenue Service, like any other covered employer, must accommodate itself to dissent based on religious belief. To be sure, some of plaintiff’s beliefs may be regarded by many as bizarre (E. g., his concern with witchcraft or worship of the devil, which at least at the present time can hardly be said to constitute a clear and present danger) and some of his language may be strong (E.g., that the Treasury Department “is encouraging mass killing of innocent human beings in many parts of the world,” and that the Supreme Court abortion rulings are “based on fraud perpetrated on the Court”), but this does not constitute a valid basis

X-22 for depriving him or his views of the protection of the First Amendment. The Constitution is designed to shield robust and seemingly eccentric expression and conduct no less than those which are more mildly conventional (see Murdock v. Pennsylvania, 319 U.S. 105, 116, 63 S.Ct. 870, 87 S.Ct. 1292 (1943); Redmond v. GAF Corp., supra ) and the Civil Rights Act’s religious discrimination provisions incorporate that constitutional standard. In these respects both the First Amendment and the Act merely mirror the fundamental values of this society, based as it is on pluralism in religion as in many other aspects of life. Mr. Justice Jackson expressed that truth for the Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 641-2, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628 (1943), in famous words which, while uttered in a slightly different context,[FN32] are fully applicable here: . . . We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are . . . harmless to others or to the State . . . the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. FN32. The Barnette case involved a flag salute requirement imposed by a public school system which was objected to by Jehovah’s Witnesses. See also, Abington School District v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963) (requirement of prayer recital in public schools unconstitutional).

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. The government’s final argument that to accept plaintiff’s position would be to involve the Internal Revenue Service in religious affairs in violation of the First Amendment’s prohibition against the establishment of religion is simply wrong. IRS would be engaged in an establishment of religion if it were to allow plaintiff to make decisions on behalf of the government based on his religious beliefs. No such violation of the Establishment Clause occurs, however, when plaintiff is allowed merely to abstain from making decisions on issues which offend his conscience. To do that is to allow him to exercise his religious preference under the Free Exercise Clause without at the same time entangling the government in religious affairs in violation of the Establishment Clause. It thus serves well both aspects of the religious clauses of the First Amendment. For the reasons stated, the Court concludes that there are no grounds of public policy upon which plaintiff could be denied promotional or other employment rights and opportunities. Nevertheless, a word of caution on this aspect of the case may not be inappropriate. The “undue hardship” provision applies not only to the purely mechanical facets of an agency’s operations; it is also an integral part of the public policy issues discussed in this part of the Opinion. As indicated, in the view of this Court it is not only permissible but desirable for a decision-maker to disclose his insuperable biases and

X-23 prejudices and to disqualify himself when they might tend to interfere with the impartial discharge of his duties. Yet if a potential decision-maker has so many conflicts of interests, biases, prejudices, or convictions (whether religious or otherwise) that he would be unable to perform a substantial proportion of the duties of a particular position, then the appropriate authorities may refuse to appoint or promote him to that position. Thus, there is nothing in the Civil Rights Act, the Constitution, or any other law to require the appointment to a position in the Internal Revenue Service of one who in principle objects to income taxation (just as the law does not require the giving of military command to an avowed pacifist or the appointment of an opponent of criminal penalties to a judgeship on a court with significant criminal jurisdiction). It is only where, as here, the area of conscientious or other problems leading to potential disqualifications is relatively slight that such problems do not stand as a bar to employment or advancement. …      DISCUSSION QUESTIONS 67. Overview: In which of the cases that follow does the claimant have the strongest claim for an accommodation? In which case the weakest? Do you agree with each court’s analysis? 68. Notice: a. In Hellinger, the defendant argued the plaintiff did not make out a prima facie case because he did not notify the defendant of the conflict between job duties and his religious beliefs. Did the court correctly resolve this issue. b. In Sedalia, the majority opinion and the concurrence both express concern that the school district did not have sufficient notice of the circumstances in which the claimant would refuse to do literal translation. Is this a valid concern in that case? 69. Cumulation/Speculation: Employers often argue that a proposed accommodation creates undue hardship because other employees might want similar treatment and the total effect on the business will be too great. The court accepts this argument in Parrott, but rejects it in Haring and Hellinger. When, if ever, should this argument succeed? 70. Public Employers: a. The defendants in Haring and Parrott both made arguments based on their special responsibilities as government agencies. Did the courts handle these claims appropriately? b. Is there anything in the analysis in Sedalia that ought to be different if the employer were a private school? 71. Religious Employers: Would the analysis in Lesco change if the employer’s insistence on the “Merry Christmas” greeting stemmed from the employer’s own sense of its own religious mission? 72. Haring was decided in 1979, at least eight years prior to any of the other cases. What aspects of the opinion strike you as possibly related to its date?

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