Religious Discrimination: Personal Preference or Sincere Religious Belief?

Imagine this scenario: There is an environmental instructor working for a public school district, let’s call her Ms. Green.  Her school district, always strapped for funds, is given tens of thousands of dollars by the local power utility company.  In return, the power company implements a plan with the district to have its environmental instructors lead field trips of fifth and sixth grade students to its Red Devil nuclear power plant, built on a known, active earthquake fault.  Before, during and after its construction, Red Devil has been the site of active anti-nuclear political protests.  The district informs the instructors that they must all participate in leading these trips and refusal to do so will lead to disciplinary action up to and including termination.  Each instructor is to be assigned one to two field trips a month.

Now, Ms. Green has a long history of active opposition to nuclear power proliferation.  In fact several years before, prior to being employed by the district, Ms. Green had been arrested at the Red Devil site where she and thousands of others were protesting its construction.  At her workplace, Ms. Green has always been vocal about her opposition to nuclear power and her specific concerns about the Red Devil plant.  However, Ms. Green was worried that if she refused to lead the Red Devil field trips she would lose her job and thus her only source of income.

Consequently, Ms. Green at first reluctantly agrees to lead the Red Devil field trips.  After doing so 3 or 4 times, she comes to the conclusion that she can no longer lead the trips as doing so contradicts her strongly held beliefs about nuclear power.  She thus informs her supervisors that she will no longer lead the trips.  Her fellow environmental instructors willingly agree to trade assignments with her as needed so that the field trips could continue; no dispute exists that the trading of assignments can be easily accommodated by the district.  Despite this, district management insists that Ms. Green continue to lead the Red Devil trips and terminates her employment when she continues to refuse to do so.  Seeking to return to her job, Ms. Green contacts you, an attorney, who begins to investigate the case.

When you first meet with Ms. Green, you question her closely about her personal history and reasons for refusing to lead the Red Devil trips.  You know that if her reasons for refusing to lead the trips were just based upon her personal political opposition to nuclear power that there would be little chance of successfully defending her actions.  In talking with her, however, you learn that she has a long and significant history working with the religious organization Catholic Worker and that one of Catholic Worker’s principal tenets is opposition to the proliferation of nuclear power in all its forms including nuclear energy generation.  Ms. Green tells you about her long history of participation in Catholic Worker nuclear power protests and the inner conflict she felt in being ordered to take school children in her charge onto the grounds of Red Devil.  She also tells you, however, that she no longer participates in Catholic Worker activities and is no longer a member of any organized religion, including the Catholic Church.

Based on Ms. Green’s personal history and Catholic Worker background, you are determined to show that she had a justifiable religious objector claim for refusing to lead the Red Devil trips.  Yet, she is not a member of an organized religion and no longer a Catholic Worker activist; can a religious objector claim still be stated so she may be reinstated to her job?  The answer is unequivocally yes.

Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e-2(a)(1)) states that it is unlawful to fire an employee because she refuses to perform a work assignment which violates her sincerely held moral, ethical or religious practices.  Title 29 of the Code of Federal Regulations section 1605.1 states in pertinent part that the term “religious practices,” as found in the Act, is defined “[t]o include moral or ethical beliefs as to what is right and wrong which are sin cerely held with the strength of traditional religious views.”

In McGinnis v. U.S. Postal Svc. (N.D. CA 1980) 512 F.Supp. 517, a postal clerk was fired because she refused to process Selective Service System registration forms.  The clerk contended that she was a conscientious objector based on her Quaker upbringing.  Even though the clerk was no longer a member of any Quaker Society Meeting, the court held that her continuing belief in the Quaker religion’s “Peace Testimony” entitled her to claim that she had been discriminated against on the basis of a bona fide religious belief.  In particular, the court found that the employee’s willingness to jeopardize her job gave it “little occasion to question her assertion” concerning the sincerity of her belief. 

Moreover significant authority has found that the sincerity of Ms. Green’s beliefs is not lessened merely because she went on some trips to the Red Devil plant before formally asking to be relieved of the assignment.  Ms. Green candidly acknowledged that she had no other means of support other than her job and, therefore, was justly concerned with the consequences of refusing to teach at the nuclear plant.  In analogous cases, the courts have held that the sincerity of an employee’s beliefs is not compromised, and that their discharge from employment was unlawful.  (See Thomas v. Review Bd., Ind. Empl. Sec. Div. (1981) 450 U.S. 707; Philbrook v. Ansonia Bd. of Ed. (2d Cir. 1985) 757 F.2d 476; Young v. Southwestern Savings and Loan Association (5th Cir. 1975) 509 F.2d 140; Kettell v. Johnson & Johnson (E.D. AR 1972) 337 F.Supp. 892.)

Best v. California Apprenticeship Council (1984) 161 Cal.App.3d 626, 207 Cal.Rptr. 863 (a case decided under the California Fair Employment and Housing Act, Cal. Gov’t Code section 12940, et seq.), involved an electrician dismissed from an apprenticeship program because he refused to accept an assignment to work at a nuclear power plant on the basis of his undisputed religious belief that as a “devout Catholic” it would be a sin “to participate in the construction of a nuclear power plant.”  The court ordered Best to be reinstated, finding that: “Best’s right to religious freedom may not be disregarded.  It is well settled an individual’s religious beliefs must be accommodated even where it means making an exception to a rule which is reasonably applied to other individuals with different beliefs.”

Finally, the U.S. Supreme Court has held that the validity of Ms. Green’s beliefs is not diminished on the grounds that neither the Catholic Church nor Catholic Workers philosophy expressly forbid their followers from working at a nuclear power facility.  In Frazee v. Employment Security Dept. (1989) 489 U.S. 829, the plaintiff was denied unemployment benefits after he refused to accept Sunday employment on the basis “that, as a Christian, he could not work on ‘the Lord’s day.'”   The state courts upheld the denial of benefits because they found that the plaintiff did not belong to a religious sect which had a tenet or dogma forbidding Sunday labor.  The Supreme Court, however, rejected the State’s rationale for refusing payment of benefits to the plaintiff, holding that:

[N]one of those [the Court’s previous] deci sions turned on…any tenet of the sect involved that forbade the work the claimant refused to perform.  Our judgments in those cases rested on the fact that each of the claimants had a sincere belief that reli gion required him or her to refrain from the work in question.  Never did we suggest that unless a claimant belongs to a sect that for bids what his job requires, his belief, however sincere, must be deemed a purely personal preference rather than a religious belief.” 

Conclusion: When all the above authority is considered and weighed, it is apparent that Ms. Green falls squarely within the ambit of protection intended for victims of religious discrimination.  The anti-nuclear proliferation teachings of Catholic theologians and the Catholic Workers were the genesis for Ms. Green’s moral and ethical opposition to the nuclear power industry.  Judicial authority makes plain that she no longer needs to be an active church member in order to demonstrate that her refusal to go on the Red Devil field trips was based on her long-standing and sincerely held moral, ethical, and religious beliefs, as opposed to a mere personal preference.  Nor does it matter that Catholic Worker dogma does not expressly forbid its adherents from working at a nuclear facility. For Ms. Green, it happily results in the court ordering the district to reinstate her to her instructor position.

Thus when considering cases of possible religious discrimination or harassment it is essential to look at the broader scope of what constitutes a “religious practice.”  Just because an employee is not now or has ever been a member of an established, organized religion does not mean that the necessary showing of a sincerely held moral or ethical belief cannot be made.  In every such case, the above principles enunciated by the courts must be scrutinized and where possible applied in order to determine if unlawful discrimination has occurred.

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