Religious Institutions Update: April 2012
For the second consecutive year, complainants filed a record number of employment discrimination claims with the EEOC. Last year alone, the EEOC received 99,947 employment discrimination charges. While the greatest number of charges filed were those alleging retaliation, race discrimination and gender discrimination, charges alleging religious discrimination showed the biggest rise over 2010. The 4,151 religious discrimination charges filed in 2011 represented a 10 percent increase over 2010.
In addition to prohibiting harassment and disparate treatment based on religion, Title VII affirmatively requires employers to make reasonable accommodations for the religious beliefs and practices of workers. Accommodations might include adjusting work hours to accommodate workers whose religious beliefs prevent them from working on holy days or Sabbaths. In addition, employers may be required to provide exceptions to work rules, such as dress and grooming standards, for employees of certain religious beliefs.
Employers do not need to provide religious accommodations that create an “undue hardship” on the employer’s business. For example, some employers have been able to enforce no-beard rules if employees working in hazardous environments are required to wear respirators that cannot fit properly over a beard. But to avoid providing a religious accommodation, courts require an “actual” hardship, as opposed to an imagined or contrived one. As a result, employers cannot refuse to excuse one employee from working on the employee’s Sabbath out of concern its business will suffer if it later hires several employees with similar religious-based work restrictions. In addition, courts often reject undue hardship claims based solely on “employee morale,” when these concerns stem from complaints that time off or other religious accommodations are reverse discrimination in favor of employees receiving the accommodation.
The bottom line is that employers should train managers to be aware of religious accommodation obligations and to contact human resources officials before rejecting religious accommodation requests. In turn, the latter should have access to legal counsel familiar with church-state law to assist them with assessing what religious accommodations are necessary.
Court Enjoins Washington Rules Requiring Pharmacists with Conscientious Objections to Dispense Contraceptives
In Stormans Inc. v. Selecky, Case No. C07-5374RBL, 2012 WL 600702 and 2012 WL 566775 (W.D. Wash. Feb. 22, 2012), the court held that Board of Pharmacy rules violated the plaintiffs’ sincerely held religious beliefs precluding them from dispensing the contraceptives Plan B and ella in contravention of the Free Exercise Clause. In particular, the Board’s “delivery rule” required pharmacies to timely deliver all lawfully prescribed medications, including the contraceptives, or face discipline up to and including revocation of their licenses. The Board’s preexisting “stocking rule” required “a pharmacy to stock a ‘representative assortment of drugs in order to meet the pharmaceutical needs of its patients.’” The plaintiffs, two individual pharmacists and a corporate pharmacy, are convinced that life begins at conception and that by dispensing Plan B they would actively participate in the destruction of a human life. The intervenors include two women of childbearing age who seek to ensure access to emergency contraception.
The court ruled that the Board’s rules were neither operationally neutral nor generally applicable and, thus, were subject to strict scrutiny. First, they were not operationally neutral because the court ruled them gerrymandered to apply almost exclusively to conscientious objections to Plan B, enacted with discriminatory intent, and likely to cause differential treatment among religions. With respect to the second point, the court found that the legislative history revealed “the drafters sought to create rules that would permit refusal for almost any secular reason while prohibiting refusal for religious reasons.” Second, the court held the rules not generally applicable, because they (1) provide categorical exemptions for secular refusal to stock or dispense a drug, but not for conscientious objections; (2) give the government discretion to make individualized exemptions depending on the reasons why a pharmacy does not stock or dispense a drug; and (3) have been selectively enforced only against pharmacies refusing to dispense Plan B and not against Catholic-affiliated outpatient pharmacies.
The court found that the most plausible explanation for this was that the Board “does not object to shutting down a small, independent pharmacy ... [b]ut ... recognizes that shutting down Catholic pharmacies would have a devastating impact on access to health care.” The court also found that the rules were both overbroad, because they proscribe more religious conduct than is necessary to achieve their stated ends for lack of any evidence that the plaintiffs’ conscience-based referrals ever impeded timely access to Plan B. In addition, they found the rules to be under-inclusive, in that their objectives were not pursued with respect to analogous non-religious conduct. The court declined to find that the defendants violated due process for lack of any Supreme Court case indicating that “the right to refuse to participate in the taking of a life” is a fundamental right. The court also declined to find that the defendants violated Title VII by adopting the rules, because they do not “expressly ‘require or permit’ a pharmacy to take discriminatory action against a pharmacist in such a direct manner as to violate Title VII.” The court permanently enjoined the rules and awarded the plaintiffs their costs and fees.
Summary Judgment Affirmed against Counselor Who Declined Same-Sex Relationship Counseling
In Walden v. Centers for Disease Control and Prevention, Case No. 10-11733, 2012 WL 371871 (11th Cir. 2012), the court held that an employee’s free exercise rights were not implicated when a contractor fulfilled its contractual obligation to a federal agency by removing the employee, because of how she handled the referral to another counselor of a client seeking same-sex relationship counseling. The plaintiff worked as an Employee Assistance Program (EAP) counselor for Computer Sciences Corporation (CSC), which had the contract for these services at the Centers for Disease Control and Prevention (CDC). Due to her religious convictions, she stated that she could not provide relationship counseling to individuals in same-sex relationships. When the plaintiff told a client this, the client complained and the plaintiff’s supervisor suggested that in the future the plaintiff tell a client that “she was inexperienced with relationship counseling, rather than stating that her personal values required her to refer the client to a colleague.” The plaintiff refused, on the grounds that she would be lying. Under the EAP contract, the CDC could and did request the removal of the plaintiff from the EAP program. At that time, CSC’s only counseling positions in the Atlanta area were at the CDC.
The plaintiff filed suit alleging, inter alia, free exercise, Religious Freedom Restoration Act (RFRA), and Title VII claims. The court denied her free exercise and RFRA claims against the CDC decision-makers, because it found that they removed her not due to her religious beliefs but because of the manner in which she handled the complainant’s referral; also, due to concerns that she would behave the same way in the future. The court denied her RFRA claim against CSC because it was the CDC, not CSC, that caused her removal. The court denied her Title VII claim against CSC on the ground that even if she stated a prima facie case of religious discrimination against her former employer, CSC provided the plaintiff with a reasonable accommodation, which she refused.
Court Refuses to Require Disclosure of School’s Foremost Donor in RLUIPA Case
In Tree of Life Christian Schs. v. City of Upper Arlington, Case No. 2:11-cv-00009, 2012 WL 831918 (S.D. Ohio Mar. 12, 2012), the court denied the City of Upper Arlington’s discovery request in a case the plaintiff brought against the city under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) when the city denied its request for a conditional permit to use the property in question to consolidate its various religious schools. The city sought the identity of one of the school’s foremost donors; it wanted to depose the donor to inquire whether the donor would agree to donate a similar sizable sum “toward the purchase of other property that is suited to plaintiff’s stated purposes....” The court agreed with the school that the disclosure would have a chilling effect on plaintiff’s First Amendment associational rights and that the information is not crucial to the defendant’s case.
Soliciting Churches for Invocations Does Not Violate Florida’s Blaine Amendment
In Atheists of Fla., Inc. v. City of Lakeland, Fla., Case No. 8:10-cv-1538-T-17-MAP, 2012 WL 589588 (M.D. Fla. Feb. 22, 2012), the court considered the constitutionality under the First Amendment and Florida Blaine Amendment of the Lakeland City Commission’s policy of beginning its bi-monthly meetings with a prayer invocation. Integral to the policy, the city mailed an invitation to deliver the invocation to some 600 religious congregations. For the purposes of Florida’s Blaine Amendment, the court agreed that there was an expenditure of public revenue, but held that the plaintiffs failed “to demonstrate how the mailing of invitations to various religious leaders in the Lakeland community confers any benefit whatsoever on any religion.” Referencing the longstanding tradition of solemnizing the meetings of the Florida Legislature, the court added that the expenditure of funds for this purpose was “not the type of practice contemplated by the Florida Constitution’s Establishment Clause.” The court also rejected the plaintiff’s federal Establishment Clause challenge.
Supreme Court of Tennessee Recognizes Breach of Fiduciary Duty Claim against Diocese
In Redwing v. Catholic Bishop for the Diocese of Memphis, Case No. W2009-00986-SC-R11-CV, 2012 WL 604481 (Tenn. Feb. 27, 2012), the Supreme Court of Tennessee held that the doctrine of ecclesiastical abstention does not require a trial court to dismiss claims for negligent hiring, supervision and retention made by the alleged victim of childhood sexual abuse by a priest against the Catholic Diocese of Memphis for lack of subject matter jurisdiction. The court observed that “religious institutions are not above the law ... and that, like other societal institutions, they may be amendable to suits involving property rights, torts, and criminal conduct.” It declined to embrace the court of appeals’ attempt to distinguish negligent hiring and retention claims from negligent supervision claims on the grounds that “‘[t]he torts of negligent hiring, supervision, and retention all involve essentially the same questions: did the defendant have notice of the wrongdoer’s propensity to commit sexual misconduct, authority to prevent the harm, and some duty of care to those who were harmed?’” The court added that civil courts may exercise jurisdiction over a claim against a religious institution for breach of fiduciary duty, as long as the fiduciary relationship is not based on a religious duty or is not inextricably tied to a religious duty. It remanded the case for discovery into whether the plaintiff could meet its burden to demonstrate that his claims against the diocese should not be time-barred.
District Courts Split Over Whether Religious Institutions Have a Claim Under RLUIPA when Expansion Plans are Pared Back or a Special Exemption Is Denied
In Church of Scientology of Ga., Inc. v. City of Sandy Springs, Ga., Case No. 1:10-CV-00082-AT, 2012 WL 500263 (N.D. Ga. Feb. 10, 2012), the court found that a question of fact exists as to whether the City of Sandy Springs, Georgia discriminated against the Church of Scientology on the basis of its religious denomination when the city granted the church conditional approval of its rezoning application, limiting the size of its building to 32,053 square feet, not the roughly 44,000 square feet the church sought. Initially, a city planner informed the church that it did not need a parking variance for its expansion. Later, the City Planning Staff determined that the on-site parking was deficient. The plaintiff sued the city under various theories, including RLUIPA, the Free Exercise Clause and the Free Assembly Clause, and argued that its inability to utilize the entire sought-after square footage substantially burdened its religious exercise. The court was skeptical inasmuch as the plaintiff is currently practicing Scientology in a facility one-quarter the size of the proposed property. Nevertheless, it determined that the church should have the chance to prove that the city’s conditional approval effectively bars its use of its property for the practice of Scientology, as mandated by its scriptures. Under RLUIPA’s nondiscrimination provision, the court also determined there were genuine issues of material fact as to whether Congregation Beth Telfillah and Lutheran Church of the Apostles were treated more favorably than the plaintiff. The court held that plaintiff stated a prima facie case of discrimination under RLUIPA by presenting evidence that its application was subjected to a higher scrutiny and a lengthier approval process than these comparator religious institutions. The court ordered the parties to mediation.
In Chabad Lubavitch of Litchfield Cnty., Inc. v. Borough of Litchfield, Conn., Case No. 3:09-CV-1419 (JCH), 2012 WL 527851 (D. Conn. Feb. 17, 2012), the court granted summary judgment to the defendants on all of plaintiff’s RLUIPA claims when the Historic District Commission of the Borough denied the application of Chabad Lubavitch of Litchfield County’s request to add a three story, 17,000-square-foot addition on to a historic house without prejudice to the Chabad resubmitting its application for an addition no larger than the original house on the property. The HDC acted pursuant to section 7-147d(a) of the Connecticut General Statutes, which specifies that “[n]o building or structure shall be erected or altered within an historic district until after an application for a certificate of appropriateness as to exterior architectural features has been submitted to the historic district commission and approved by said commission.”
The court granted the defendants summary judgment on their substantial burden claim under RLUIPA, on the grounds that section 7-147d is neutral and generally applicable. It ruled that preserving aesthetic values is a legitimate governmental interest rationally related to the statute’s purpose; consequently, the court also granted summary judgment as to the plaintiff’s free exercise, free speech, and free association claims. The court also found that the plaintiffs failed to prove valid secular comparators to support its equal terms claim under RLUIPA and valid religious comparators to support its discrimination claim under RLUIPA or the Equal Protection Clause. In addition, the court denied the plaintiff’s void for vagueness claim, because, although some of the factors the HDC considers in determining whether to issue a certificate of appropriateness “are somewhat subjective, they are not so subjective that a reasonable person could not ascertain what factors the HDC will consider in deciding whether to grant an application for a certificate of appropriateness.” Last, the court found no evidence that “religious animus was a significant influence on those HDC members who did vote on Chabad’s application,” notwithstanding that one recused herself after making a comment regarding the Star of David during the pre-application meeting.
In First Korean Church of N.Y., Inc. v. Cheltenham Tp. Zoning Hearing Bd., Case No. 05-6389, 2012 WL 645986 (E.D. Pa. Feb. 29, 2012), the court ruled against First Korean Church of New York, Inc. on its RLUIPA substantial burden and equal treatment claims and constitutional claims under the First and Fourteenth Amendments. The city cited the church for failing to apply for a special exemption to operate a church in a residential district. The church appealed and sought a special exception to use the premises for a theological seminary and weekly church services. The city denied the request, a reapplication request and a request for a variance. The court applied a two-prong test to evaluate whether there was a substantial burden and found that neither was met: whether (1) a follower is forced to choose between following the precepts of his religion and forfeiting benefits otherwise generally available to other [similarly situated persons] versus abandoning one of the precepts of his religion in order to receive a benefit; or (2) the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs. Likewise, the court concluded that the church failed to identify a similarly-situated, better-treated nonreligious comparator for purposes of its equal-terms claim under RLUIPA and equal protection claim. The court also deemed the zoning ordinances neutral and generally applicable and found that distinguishing between taxable and tax-exempt uses to increase tax ratables is rationally related to a legitimate government objective. Last, the court collaterally estopped the church from challenging the township’s actions prior to 2010, because the church lost an independent tax assessment proceeding on a finding of no regular church-related activity on the property from 1998 to March 2010. To prevail under RLUIPA, a church must show that its use amounts to religious exercise.
Polygamists State First Amendment Claims against Anti-Bigamy Statute
In Brown v. Herbert, Case No. 2:11-CV-0652-CW, 2012 WL 380110 (D. Utah Feb. 3, 2012), the district court held that self-described polygamists had standing to seek to enjoin Utah’s Anti-Bigamy Statute due to a threat of prosecution by the County Attorney for Utah County arising from their participation in the television series known as the Sister Wives. This was notwithstanding that (1) they moved to Nevada to avoid prosecution; (2) there were only a handful of past prosecutions of bigamists statewide under the statute; and (3) there was an alleged policy of enforcing the statute only when other crimes accompany the bigamy charge. The plaintiffs sought a declaration that the statute violates their free exercise, free speech and freedom of association rights and is an establishment of religion. The court dismissed the plaintiffs’ claims against the governor and attorney general, who assured the plaintiffs that they did not plan to prosecute them.
Iowa Supreme Court Strikes Road Ordinance as a Violation of Free Exercise Rights
In Mitchell Cnty v. Zimmerman, Case No. 10-1932, 2012 WL 333777 (Iowa Feb. 3, 2012), the Supreme Court of Iowa held an ordinance that generally barred the operation on hard-surfaced roadways of tractors or vehicles with steel-cleated wheels violated the free exercise rights of a member of the Old Order of Groffdale Mennonite Conference cited under the ordinance who explained that the use of steel wheels is a religious practice. The court ruled the ordinance facially neutral, but maybe not operationally neutral inasmuch as it “was adopted specifically to address use of the resurfaced concrete roads by steel wheel tractors,” a “longstanding religious practice.” The court also held the ordinance not generally applicable because of a secular exemption for school buses enabling them to use ice grips and tire studs year round, which the court could not square with the stated purpose of the ordinance, which was to “‘protect the integrity of the county’s roads’ from damage.” Likewise, the court observed that the county declined to regulate various other sources of road damages besides steel wheels, such as the overall weight of vehicles.
Applying strict scrutiny to the ordinance, the court was not persuaded that it was narrowly tailored to achieve its objective, because (1) Mennonite tractors had driven over county roads for years, (2) the county failed to prove the degree to which steel wheels harmed the county’s roads in comparison to other causes, and (3) an adjoining county had reached an agreement with the Mennonite community to accept a financial deposit in a trust arrangement to cover possible road damage in lieu of banning steel wheels. The court deemed this a less restrictive alternative to the ordinance.
Disaffected Trustees’ Claims against Church Dismissed, But Procedural Irregularities Related to Removal Are Justiciable
In Drake v. Moulton Memorial Baptist Church of Newburgh, 2012 N.Y. Slip Op. 01793, 2012 WL 833211 (N.Y. A.D. 2 Dept., Mar. 13, 2012), the court ruled that trustees removed from the church could not state a justiciable claim for breach of fiduciary duty, defamation or prima facie tort against the church, its pastor and various members of the church as the claim would “necessarily involve an impermissible inquiry into religious doctrine or practice.” The court held that it could decide under the “neutral principles of law” approach whether there were procedural irregularities related to their removal which deprived them of their due process rights, but the plaintiffs waived the alleged defects.
In Ambush v. Mt. Zion Baptist Church, Inc., Case No. 11-1028, 2012 WL 555151 (La. App. 3 Cir., Feb. 22, 2012), the court held that ecclesiastical matters are not at issue “when a court is asked to determine whether church members complied with the procedures set out in the church’s bylaws when it conducted an election....” In fact, the court held that exceptional circumstances existed to warrant the appointment of a special master in this case to cause the church to follow its own internal rules. It ruled that the district court’s issuance of an order by way of preliminary injunction that granted church members access to the church, required the church to provide members a key to the church, and to take no action against any party to the litigation until the special master had orchestrated a special election was not an abuse of discretion.
Religious Institutions in the News
Federally mandated contraception coverage continues to evolve and to concern faith-based groups. http://www.washingtonpost.com/national/on-faith/white-house-proposal-gives-religious-groups-more-say-in-birth-control-mandate/2012/03/19/gIQA3cMbNS_story.html; http://www.nytimes.com/2012/03/17/health/policy/obama-administration-says-birth-control-mandate-applies-to-religious-groups-that-insure-themselves.html; http://online.wsj.com/article/SB10001424052702303863404577285960489886418.html?KEYWORDS=contraception; http://www.usccb.org/issues-and-action/religious-liberty/upload/Dolan-to-all-bishops-HHS.pdf
For the fourth consecutive year, the Obama administration proposes lowering tax deductions on donations to churches and other nonprofit organizations. See: http://www.washingtonpost.com/national/on-faith/nonprofit-groups-oppose-obamas-change-in-charitable-deductions/2012/02/17/gIQArKfOKR_story.html
Pope Shenouda III, the leader of the Coptic Orthodox Church, passed away, with uncertain implications for the political transition in Egypt. See: http://www.washingtonpost.com/national/on-faith/coptic-christians-mourn-death-of-pope-shenouda-iii/2012/03/19/gIQAj7xkNS_story.html; http://www.nytimes.com/2012/03/21/world/middleeast/coptic-pope-shenouda-iiis-death-adds-to-fears-in-egypt.html; http://www.bbc.co.uk/news/world-middle-east-17437426.
Archbishop of Canterbury Rowan Williams announced he will step down at the end of 2012. See: http://www.telegraph.co.uk/news/religion/9147982/Rowan-Williams-to-step-down-as-Archbishop-of-Canterbury.html.
Ten Commandments Judge Roy Moore is poised to return to the Alabama’s Supreme Court as Chief Justice. See: http://www.washingtonpost.com/national/on-faith/ten-commandments-judge-roy-moore-poised-to-return-to-ala-court/2012/03/14/gIQAa0RSCS_story.html