Religion & Antidiscrimination LawWEEK IX: HARASSMENT & RELIGIOUS EMPLOYERS

(A) Preview: Ministerial ExceptionPlease read Professor Corbin’s article, Above the Law? The Consti-

tutionality of the Ministerial Exemption from Antidiscrimination Law, 75 Fordham Law Review 1965 (2007). Professor Corbin will attend our class for about 20 minutes on October 20 and answer questions about the article.

(B) Religious Harassment Causes of ActionVenters v. City of Delphi

123 F.3d 956 (7th Cir. 1997)

ILANA DIAMOND ROVNER, Circuit Judge. After she was fired from her position as a radio dispatcher for the police department of Delphi, Indiana, Jennifer Venters sued the city and its Police Chief Larry Ives on the grounds that the discharge violated her rights to freedom of speech, religion, and association under the First Amendment, and that the discharge as well as the treatment she had endured during her employment with the city amounted to religious discrimination under Title VII of the Civil Rights Act of 1964, as amended. The district court entered summary judgment against Venters on all of her claims. The court determined that Venters’ free speech claim was barred by the statute of limitations, and that her freedom of association claim did not involve a type of association that was constitutionally protected. The court further held that Venters had failed to point to any conduct on her part that would qualify as the exercise of a religious belief entitled to First Amendment protection, thus precluding her freedom of religion claim as well. Finally, the court determined that her Title VII claim was also foreclosed because Venters never informed Ives of her religious beliefs and did not request that those beliefs be accommodated. On appeal, Venters has challenged the district court’s judgment only with respect to her freedom of speech, religion, and Title VII claims. For the reasons that follow, we affirm the judgment in part and reverse in part.

I. … [T]he factual summary that follows reflects a reading of the record uniformly favorable to Venters. … Needless to say, it remains for a jury (which Venters has requested) to decide whether and to what extent her account of events is accurate.

Venters was employed by the City of Delphi as a radio dispatcher from March 1986 until her dismissal by Police Chief Ives on October 20, 1994. Venters was hired during the tenure of former Mayor Carolyn Wagner and served under the direction of former Police Chief Rolland Richard Roe, who left the Delphi police department when a new mayor took office in January 1992. Immediately prior to leaving his post in December 1991, Roe promoted Venters to the position of head dispatcher. As a radio

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dispatcher, Venters’ duties included answering emergency calls that came to the police station by telephone or police radio, then dispatching the appropriate response. This could include alerting the police or the fire department to the call and directing an ambulance to the scene of an injury, and providing emergency teams with the information they needed to respond effectively. In addition, Venters was responsible for monitoring alarms, logging her calls, and aiding members of the public who came to the police station for assistance. She described herself as “the link between the public and the law enforcement officers,” and acknowledged that if she were ineffective in taking calls and dispatching the proper response team to an emergency, lives could be lost.

In June 1992, approximately six months after taking office, Mayor Thomas S. Deiwert chose Ives as a permanent replacement for the former police chief. From the beginning of his tenure, Ives made it clear to Venters that he was a born-again Christian who believed that his decisions as police chief should be guided by the principles of his faith, and that he had been sent by God to Delphi to save as many people from damnation as he could. In his conversations with Venters, all of which occurred at work while Venters was on duty, Ives continuously interjected religious observations and quotations from the Bible, and spoke to Venters about her salvation in a manner that led her to conclude that Ives considered her immoral. Specific examples of statements of this nature that Ives made to Venters include:

(1) that to be a good employee, a person had to be spiritually whole, and to be spiritually whole, a person had to be saved;

(2) that Venters needed to pay attention when people were ministering to her because a person had a limited number of chances in their lifetime to accept God and be saved, and that Venters might be running out of chances;

(3) that all individuals were surrounded by spirits, and that Venters’ “positive spirits” were doing battle with her “negative spirits;”

(4) that if Venters were to attend Ives’ church, the Assembly of God, she might feel the “altar call” and be saved;

(5) that the police station was “God’s house,” and that if Venters were unwilling to play by God’s rules Ives would “trade” her.

At certain points, Ives criticized Venters for living with another single woman, and asserted that she had set a bad moral example for the other woman’s teenaged son. Ives also warned Venters that, because she was a single woman, it was inappropriate for her to receive visits from police officers who were married, including those who were separated from their wives. Ives further inquired whether there was any truth to the rumors that Venters had entertained the police officers who visited her home with sexually explicit videos and other pornographic materials.

In an effort to save her soul, Ives provided Venters with a copy of the Bible and other religious materials, and called her attention to a religious videotape entitled “Hell’s Fire and Heaven’s Gate,” which Ives had placed with the police department’s training materials. Interspersed with these religious lectures were numerous references to Venters’ status as an at-will employee who, as Ives reminded her, could be dismissed at any time. Although Venters considered these religious lectures unwelcome, she was afraid to express her desire to be left to her own religious views, and at times even tried to appear

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interested in Ives’ conversation and to ask questions about his faith in order to placate him. Venters testified that she refrained from making her religious views known to Ives because she believed that if she had contradicted Ives or asked him to stop lecturing her, she would have risked being discharged from her job.

Venters’ first job-related (as opposed to religious) conflict with Ives and Diewert occurred soon after Diewert took office, and involved Venters’ opposition to a plan to convert to a system of centralized dispatching between the City of Delphi police department and the Carroll County Sheriff’s Department. Both Diewert and Ives were strong proponents of the plan, and repeatedly cautioned Venters not to speak to members of the city council about her views concerning the feasibility of converting to the centralized system. Venters nevertheless did so, speaking to council members at their homes or in other private settings. In late September 1992, the proposal came up for a vote before the city council. At a council meeting held before the vote, Diewert and Ives spoke in favor of the proposal, and Venters joined Officer Brook McCain, a police officer who had been designated to present the views of his fellow officers, to argue against the plan. The proposal was ultimately defeated, a result which apparently angered Ives. Ives testified in his deposition that although he did not regard Venters’ actions as being a violation of departmental procedure, strictly speaking, he did believe that her decision to “break the chain of command” and speak privately to members of the city council about centralized dispatching was highly discourteous.

Approximately two weeks after the city council voted against adopting the centralized dispatching system, Ives hired a new dispatcher, Jodie Tully. Tully had not had previous dispatching or law enforcement experience, yet within a matter of several days she was assigned to supervise Venters. Venters, in turn, was demoted from her position as head dispatcher, was reassigned to work the night shift, and received an unspecified pay cut. Although Venters acknowledges that during the summer and early fall of 1992, she was suffering from extreme exhaustion due to an unreasonable work load, she nevertheless insists that she did not ask to be demoted or transferred to the night shift to relieve her of some of her responsibilities. In any event, by mid-October 1992, Venters requested and was granted medical leave to obtain treatment for fatigue, major depression, and intermittent high blood pressure.

When Venters returned to work in February 1993, Ives warned her never to bring up the issue of centralized dispatching again, in a tone of voice that caused Venters to think that she would be fired from her job if she were to continue discussing her views on the matter while at work. Ives’ religious harangues then began in earnest. In addition to repeatedly sounding the themes of damnation and salvation that have already been described, Ives commented that the heart ailment of a city council member who had opposed him was a sign of God’s displeasure, and that if the council member did not mend his ways he risked being turned over to Satan. At some point, Ives suggested to Venters that she consider spiritual counseling with a group in Kokomo, Indiana, that offered “cult deprogramming.” Ives also continued to urge Venters to attend church with him, and to attend performances of the Christian rock group, “The Peacemakers,” which might lead to her hearing God’s call to be saved.

Matters came to a head on February 14, 1994, when Ives called Venters into his office and asked if she had attended church services the previous Sunday. When Venters

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admitted that she had not, Ives told her that she had a choice to follow God’s way or Satan’s way, and that she would not continue working for Ives if she chose the latter. Ives then began talking about Venters’ sinful life and the disgust he felt toward her because of her obstinate refusal to be saved, indicating to Venters that he believed she was repeating a cycle of abuse she had experienced as a child with her family. Ives told Venters that after having observed her behavior, he became convinced that she had had sexual relations with family members and perhaps even animals, and that she was sacrificing animals in Satan’s name. Ives also suggested to Venters that suicide would have been preferable to her continuing a life of sin, and that he would not allow the “evil spirit that had taken [Venters’] soul” to continue to live in the police department. At that point, Venters told Ives that he had “crossed the line,” and that if he did not maintain a professional attitude toward her in all future conversations, she would consider filing a sexual harassment lawsuit against him. Venters also told Ives that if he did intend to fire her, he had better have a legitimate reason for doing so because she was willing to fight the dismissal in court. Ives then replied that no one’s job performance is perfect, and that he would get the proof he needed to “put the handcuffs on her himself.”

Within one or two days of the conversation, Venters told Officer McCain and former Chief Roe about what Ives had said to her. Roe advised Venters to make a written memorandum of all that she could remember of the conversation, and to provide him and City Council President Carolyn Pearson with copies. Venters took Roe’s advice and prepared the memorandum. The following morning, Venters had occasion to meet with Pearson to discuss the situation with her and give her a copy of the memorandum. Although Pearson expressed sympathy, she stated that she was powerless to help Venters because Ives reported to the Mayor, and the city council had no authority to discipline him. Pearson also believed that if she were to approach Mayor Deiwert about the problems Venters was having with Ives, it could cost Venters her job. She therefore advised Venters to “keep [her] distance” from Ives and to avoid personal conflicts with him. Pearson further advised Venters that the memorandum was only her word, and warned her that if confronted with the memorandum, Ives would in all likelihood deny Venters’ story. Shortly after her meeting with Pearson, Venters also told city council member Bill Miller about what had happened, but did not show him the memorandum. Miller suggested that Venters file a lawsuit against Ives. At this juncture, however, Venters did not seek legal advice, nor did she share the memorandum with Ives or Deiwert.

Venters contends that Ives’ religious proselytizing continued unabated up until the time of her discharge on October 20, 1994, although she provides no further specific examples of statements that Ives made to her following the February 14, 1994 incident. On October 20, Ives met with Venters and informed her that she was being fired because of her deficient performance as a dispatcher, citing three specific examples. These were: (1) Venters had failed to monitor or to respond to fire department radio calls; (2) Venters had shown disrespect for Fire Chief Wilmer Schock and other members of the fire department, and had made an obscene gesture to a firefighter, described as giving him “the finger;” and (3) Venters was generally resistant to change, and in particular, had continued to write telephone messages on stray pieces of paper instead of using the telephone message pad as Ives had asked her to do on two separate occasions. Ives provided Venters with two examples of telephone messages she had written down on

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slips of paper, one of which apparently contained the wrong date. Ives testified that Venters appeared astonished that he would consider this particular lapse significant, despite the fact that he had carefully explained to her that the message pad automatically made carbon copies of all messages, and thus created its own log of all incoming telephone calls. During this meeting, Ives also presented Venters with a “Reason for Leaving Document” listing these three reasons for her dismissal. Venters refused to sign the document.

Although Ives claims that at the time he dismissed Venters, he showed her the written complaints against her that he had received from members of the fire department, Venters disputes that she was provided with any documentation of her alleged faults. Venters also maintains she was never shown the logs or the tapes of the fire department radio calls that she had allegedly missed, and that if she did miss any calls, she had done so unintentionally. Venters further testified that any such lapse on her part was undoubtedly due to defects in the fire radio system, and that approximately six weeks after her discharge she observed a repairman come to the station to work on the radio. Although Venters acknowledges that for several years she and Chief Schock harbored a mutual dislike for one another, she testified that she “overlooked” that dislike in order to do her job. Venters flatly denied that she ever made an obscene gesture to Schock or any other firefighter, and claimed that she was always respectful toward members of the fire department. Concerning her refusal to accept the changes in police department procedure that Ives had espoused, Venters admits that she had regretted the departure of former police chief Roe, and concedes that she was at first reluctant to adopt all of the changes that Ives had ordered. Yet Venters maintains that during her final year of employment, she made every effort to comply with Ives’ directives because she believed he was looking for a reason to fire her. Venters also contends that her early reluctance to acquiesce in the change in department leadership was not extraordinary, but was shared by other employees, and that her initial reaction to Ives’ appointment did not distinguish her from others under Ives’ command who were not subjected to religious harassment or discharged for their views. Finally, although she maintains that she was a competent dispatcher, Venters asserts that any other deficiencies in her work performance, such as her allegedly “bad attitude” on the job, were the direct result of the hostile environment Ives had created with his relentless proselytizing. …

II. … 2. Freedom of Religion (Free Exercise and Establishment Clauses of First Amendment). Venters asserts that Ives’ conduct as a public official violated her rights under the establishment and free exercise clauses of the First Amendment. … Construed favorably to Venters, the record supports a claim for violation of her rights under either clause of the First Amendment.

Arguably, the facts that Venters has alleged fit most comfortably within the establishment clause framework. More than fifty years ago, the Supreme Court in articulating the meaning of that clause observed that:

Neither [a state nor the federal government] can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance.

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Everson, 330 U.S. at 15-16, 67 S.Ct. at 511. By Venters’ account, Ives virtually from his first day in office pressured her to bring her thinking and her conduct into conformity with the principles of his own religious beliefs, and admonished her in no uncertain terms that she was at risk of losing her job if she was unwilling to do so. Ultimately, of course, Venters did lose her job, and she ascribes the decision to fire her to Ives’ perception that she did not measure up to his religious expectations. For the reasons we shall discuss below with respect to Venters’ Title VII claim, we believe that the evidence would permit a reasonable factfinder to conclude that religious considerations did play a role in Ives’ decision to discharge Venters. If a jury ultimately were to conclude that Venters was fired because she did not live up to Ives’ religious expectations, the discharge itself would of course amount to a violation of the establishment clause. See id. at 15-16, 67 S.Ct. at 511; cf. Baz v. Walters, 782 F.2d 701, 709 (7th Cir.1986); Moore v. Gaston County Bd. of Educ., 357 F.Supp. 1037, 1043 (W.D.N.C.1973). But even if the jury were to conclude that Venters’ termination was untainted by religious considerations, it might nonetheless find that Ives violated her rights under the establishment clause. Venters has alleged that she was repeatedly subjected to workplace lectures by Ives on his views of appropriate Christian behavior, to admonitions that she needed to be “saved” and faced damnation, and to rather intimate inquiries into her social and religious life. By Venters’ account, this was all unsolicited and unwelcome, but she endured it for a period of time without objection in view of the fact that Ives was her supervisor and had threatened to fire those whom he viewed as immoral. When she ultimately did object, Ives continued nonetheless. A jury could find that by requiring Venters to submit to these religious dialogues by means of intimidation, Ives engaged in the kind of coercion proscribed by the establishment clause--even if he ultimately terminated her for lawful reasons.

The coercive nature of the conduct that Venters has described also renders it possible that Ives interfered with her right to the free exercise of religion. Public employment may not be conditioned on one’s willingness to subscribe to particular religious principles or to any religious belief at all. E.g., Torcaso v. Watkins, 367 U.S. 488, 495-96, 81 S.Ct. 1680, 1683-84, 6 L.Ed.2d 982 (1961). When a public employee is discharged based on a religious assessment, her right to free exercise is violated just as surely as if she were refused a governmental job based on her refusal to declare a belief in the existence of a supreme being. Id. at 495-96, 81 S.Ct. at 1683-84. This is no less true when a public official, wielding the threat of termination, pressures his subordinate to engage in a religious dialogue, to entertain his own religious beliefs, to worship at his church, and to comport herself in accord with the articles of his faith. These actions invade the realm that the First Amendment reserves to one’s own conscience and interfere with the individual’s ability to believe or not, to practice or not, as she wishes.

The district court was persuaded that the facts did not support any freedom of religion claim because:

Venters has not argued an injury cognizable as a constitutional claim. [S]he has not shown this court what constituted her protected conduct. The only possible conduct which might qualify is Venters’ exercise of her own religious beliefs, and she has not shown any evidence of how she attempted to do so.

Mem. & Order at 9. This is a refrain that the defendants take up repeatedly on appeal. In order to state a claim for violation of her First Amendment freedoms, they reason,

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Venters must demonstrate that she held a religious belief that in some way conflicted with Ives’ beliefs or the employment demands that he made of her, that she made the conflict known to him, and that he persisted nonetheless. Appellees’ Br. at 26-27. That would be true if Venters were complaining that Ives failed to accommodate her religious beliefs, but that contention is not at the heart of the claims that Venters has asserted, nor must it be. What Ives and the city have consistently overlooked is the coercive nature of the conduct that she has alleged. A request for an accommodation is hardly necessary to a claim under the establishment clause, nor is it a prerequisite to the type of free exercise claim that we understand Venters to be making. It is not as if Venters were complaining simply that she was uncomfortable with the religious views that Ives volunteered to her; what she alleges is that from the outset Ives required her to entertain those views and to submit to a religious inspection of her own life. We point out that eventually, Venters did object to these dialogues and by her account to no avail. But if we accept that Ives did threaten to “trade” Venters if she did not prove herself a Christian worthy of employment in the “house of God,” an objection is not a necessary component of her claim. Whether and to what extent Venters’ religious beliefs (if any) may have conflicted with Ives’ own is really immaterial. Even in the absence of a conflict, Venters had a right under the free exercise clause to work for the City of Delphi without being compelled to submit herself to the religious scrutiny of her superior.

The district court erred, therefore, in granting summary judgment in favor of Ives on the freedom of religion claims. The merits of these two claims turn largely on what the facts actually are, and as the district judge noted, there is “a whale of a big swearing contest going on here.” Tr. Jan. 19, 1996 at 28. That is for the jury to resolve.

3. Title VII: Religiously Motivated Discharge and Workplace Harassment. Finally, Venters appeals the district court’s grant of summary judgment in favor of her employer, the City of Delphi, on her Title VII claims. By the district judge’s reasoning, Venters cannot satisfy the elements of a prima facie case of religious discrimination under Title VII without informing her employer of her religious needs, and requesting that those needs be accommodated. Mem. & Order at 14. The City of Delphi asks us to endorse the district court’s view, contending that Ives was entitled under the First Amendment “to talk [sic] and share religious beliefs with employees” unless and until those employees requested accommodation of their beliefs, and that Venters relinquished any right she may have had to be free of Ives’ onslaughts by failing to make her own religious views known. (Appellees’ Br. at 33-34.) Venters, however, argues that her discharge was motivated by the fact that she did not belong to Ives’ church and did not subscribe to his particular view of Christianity. Under Title VII, Venters contends, membership in a particular church or adherence to a set of religious beliefs cannot be made a condition of retaining one’s employment. Moreover, by drawing an analogy between her case and those involving sexual harassment, Venters also argues that Ives’ treatment of her prior to her discharge created an intimidating and offensive environment which altered the conditions of her employment, and thus amounted to religious harassment under Title VII.

a. Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., provides that [“i]t shall be an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect

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to his compensation, terms, conditions, or privileges of employment, because of such individual’s ... religion....” 42 U.S.C. § 2000e-2(a)(1). The term “religion” is defined to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). Thus, where an employee alleges religious discrimination on the ground that she was unable to fulfill a job requirement due to her religious beliefs or observances, we have held that a prima facie case requires the employee to demonstrate that the belief or observance was religious in nature, that she called it to the attention of her employer, and that the religious belief or observance was the basis of her discharge or other discriminatory treatment. E.E.O.C. v. Ilona of Hungary, Inc., 108 F.3d 1569, 1575 (7th Cir.1997); Beasley v. Health Care Serv. Corp., 940 F.2d 1085, 1088 (7th Cir.1991). Yet this paradigm only establishes the elements of a prima facie case of one particular type of religious discrimination that may arise in the workplace, and was never intended to apply to all possible claims of religious discrimination without regard to their underlying facts.

We agree with our colleagues in the Tenth Circuit that the accommodation framework on which the district court relied has no application when the employee alleges that he was fired because he did not share or follow his employer’s religious beliefs. Shapolia v. Los Alamos National Laboratory, 992 F.2d 1033, 1037 (10th Cir.1993). Again, properly understood, Venters’ claim is not that the city refused to accommodate her religious practices in some way, but that she was discharged because she did not measure up to Ives’ religious expectations. What matters in this context is not so much what Venters’ own religious beliefs were, but Ives’ asserted perception that she did not share his own. See id. at 1037, 1038. She need not put a label on her own religious beliefs, therefore, or demonstrate that she communicated her religious status and needs as she would if she were complaining that the city had failed to accommodate a particular religious practice. Venters need only show that her perceived religious shortcomings (her unwillingness to strive for salvation as Ives understood it, for example) played a motivating role in her discharge. 42 U.S.C. § 2000e-2(m). In that sense, Venters’ Title VII claim presents a very straightforward question no different in kind from that presented in the familiar cases of race, sex, and age discrimination. Shapolia, 992 F.2d at 1037. Simply put, “the question ... is whether the plaintiff has established a logical reason to believe that the decision [to terminate her] rests on a legally forbidden ground.” Carson v. Bethlehem Steel Corp., 82 F.3d 157, 158-59 (7th Cir.1996) (per curiam).

As in any other discriminatory discharge case, the plaintiff can establish that she was discharged on the basis of her religion through direct or indirect means. … Venters’ case rests principally on direct, rather than indirect evidence of discrimination. Granted, at no time did Ives ever admit when he fired Venters he did so because she did not meet his religious expectations. But if we credit the evidence that Venters has presented, Ives promised to do just that on a number of occasions preceding her discharge. As Venters recounts events, Ives described the police station as “God’s house”; and to work in that house, one had to be spiritually whole, and that required her to be “saved.” If Venters proved herself unwilling to play by “God’s rules,” Ives warned her--if she did not choose “God’s way” over “Satan’s way”--she would lose her job. In a similar vein, after concluding that Venters was leading a life of sin, Ives proclaimed that he would not

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permit the “evil spirit that had taken [her] soul” to continue inhabiting the police department. One can readily infer from these remarks that Ives was not only willing (indeed, inclined) to evaluate employees in terms of his own religious beliefs and standards, but that in Venters’ case, he actually did so. Nor is it by any means a strained inference that Venters did not measure up to the religious criteria Ives had articulated--consider, for example, his observation that an “evil spirit” had taken her soul which he would not allow to inhabit the department. In view of his prior threats to fire her (which appear neither isolated nor remote in time from her actual discharge), the inference that Venters ultimately was fired on religious grounds does not require the kind of support that the McDonnell Douglas-Burdine framework derives from more circumstantial evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973); Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253-54 & n. 6, 101 S.Ct. 1089, 1094 & n. 6, 67 L.Ed.2d 207 (1981). The inference flows instead directly from the remarks Ives allegedly made as to Venters’ need to “save” herself if she wished to remain in the employ of the police department. See Blalock v. Metals Trades, Inc., 775 F.2d 703, 708-09 (6th Cir.1985) (evidence that company owner was willing to give special consideration to those who shared his religious views, and withheld that consideration from those who did not, constitutes direct evidence that religion played a role in plaintiff’s discharge), cert. denied, 490 U.S. 1064, 109 S.Ct. 2062, 104 L.Ed.2d 627 (1989).

Now it is true that the city has marshaled a considerable amount of proof that Venters’ discharge was justified on grounds altogether unrelated to religion. Much of this evidence was gathered after Venters’ discharge, and although relevant to the question of damages in the event she prevails, for example, it does not bear on the validity of her discharge because it was not evidence that Ives relied upon in making that decision. McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358-63, 115 S.Ct. 879, 885-87, 130 L.Ed.2d 852 (1995). Ives himself did articulate at the time of the discharge three facially non-discriminatory reasons for the decision that we have noted above. See supra at 964-65. The city argues that Venters has not presented evidence suggesting that these reasons were pretextual and thus cannot survive its motion for summary judgment. Venters has pointed to evidence in an effort to do just this, and this evidence too we have noted above (supra at 965) but we need not consider it. A showing of pretext is a part of the McDonnell Douglas-Burdine framework for cases relying on indirect proof of discrimination, and that framework, as we have pointed out, is inapplicable here. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121-22, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985); Randle, 876 F.2d at 568-69. In view of the direct evidence upon which Venters’ case turns, the pertinent question is whether the city’s evidence as to the legitimate reasons for terminating Venters eliminates any doubt as to whether religion played at least a motivating role in her discharge. See 42 U.S.C. § 2000e-5(g)(2)(B); Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977); Blalock, 775 F.2d at 712-13. The answer is no. The conflict between the stories that the two sides have presented is clear: Venters describes a work environment dominated by a supervisor bent on reforming her religious life, who repeatedly threatened her with discharge if she did not play by “God’s rules” and who ultimately did discharge her when she did not mend her sinful ways; the city describes an incompetent and surly employee who was patiently tolerated until the last straw had been

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broken. Crediting Venters’ allegation that religious considerations were omnipresent during Ives’ tenure as police chief, what role if any her religion (or Ives’ perception of her religion) played in her discharge is a question that the jury must sort out. See Shager v. Upjohn Co., supra, 913 F.2d at 402.

b. Title VII, as we have noted, prohibits discrimination against an individual “with respect to his compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(1). As we observed in Sprogis v. United Air Lines, Inc., that phrase reflects an intent to “strike at the entire spectrum of disparate treatment....” 444 F.2d 1194, 1198 (7th Cir.), cert. denied, 404 U.S. 991, 92 S.Ct. 536, 30 L.Ed.2d 543 (1971), quoted with approval in Los Angeles Dep’t of Water & Power v. Manhart, 435 U.S. 702, 707 n. 13, 98 S.Ct. 1370, 1375 n. 13, 55 L.Ed.2d 657 (1978); see also Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). Consequently, the reach of Title VII is not limited solely to discrimination that can be described as “economic” or “tangible.” Meritor, 477 U.S. at 64, 106 S.Ct. at 2404. It extends to workplace harassment that is attributable to the plaintiff’s sex, as Meritor made clear, as well as to her religion. Id. at 66, 106 S.Ct. at 2405 (citing Compston v. Borden, Inc., 424 F.Supp. 157 (S.D.Ohio 1976)); Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993); Iovin v. Northwestern Mem. Hosp., 916 F.Supp. 1395, 1409 (N.D.Ill.1996) (Castillo, J.); Shapiro v. Holiday Inns, Inc., 1990 WL 44472, * 9 (N.D.Ill. April 6, 1990) (Kocoras, J.); see also, e.g., Ellis v. Wal-Mart Stores, Inc., 952 F.Supp. 1513, 1518 (M.D.Ala.1996); Goldberg v. City of Philadelphia, 65 Empl. Prac. Dec. para. 43,221, 1994 WL 313030, * 10-11 (E.D.Pa. June 29, 1994); Turic v. Holland Hospitality, Inc., 849 F.Supp. 544, 551 (W.D.Mich.1994), aff’d. in part & rev’d in part on other grounds, 85 F.3d 1211 (6th Cir.1996); Turner v. Barr, 811 F.Supp. 1, 2 (D.D.C.1993); Weiss v. United States, 595 F.Supp. 1050, 1056 (E.D.Va.1984).

Sexual harassment can occur in either or both of two forms: quid pro quo harassment and hostile environment harassment. Quid pro quo harassment occurs when the availability to the plaintifff tangible employment benefits is conditioned upon her compliance with a harasser’s sexual demands. E.g., Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir.1996), citing Dockter v. Rudolf Wolff Futures, Inc., 913 F.2d 456, 461 (7th Cir.1990); see also Meritor, 477 U.S. at 65, 106 S.Ct. at 2404-05. The second category of harassment, on the other hand, includes conduct that “ ‘has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive working environment.’ “ Meritor, 477 U.S. at 65, 106 S.Ct. at 2404-05, quoting 29 C.F.R. § 1604.11(a)(3) (1985). Although these differing categories have been described in the context of sexual harassment, they serve to describe the differing manifestations of religious harassment as well. Weiss, 595 F.Supp. at 1056; see also Turic, 849 F.Supp. at 551. We take the opportunity to reiterate, however, that the distinction between the two kinds of harassment is analytical, not statutory. Ellerth v. Burlington Indus., Inc., 102 F.3d 848, 855 (7th Cir.1996), vacated on grant of reh’g en banc (Jan. 28, 1997). The varying permutations of harassment that people experience in the real world will not always fall neatly into one category or the other. As we explain below, the conduct that Venters has attributed to Ives and the city has elements of both kinds of harassment.

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i. The Supreme Court has recognized that a violation of Title VII occurs when discrimination based on race, gender, religion or national origin creates a hostile or abusive work environment. Harris v. Forklift Sys., Inc., 510 U.S. at 22, 114 S.Ct. at 371; Meritor Sav. Bank, FSB v. Vinson, 477 U.S. at 66, 106 S.Ct. at 2405. …Whether or not the plaintiff’s work environment may be considered “hostile” for purposes of Title VII is an assessment that depends on the totality of the circumstances. Harris, 510 U.S. at 23, 114 S.Ct. at 371; Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir.1993). Factors pertinent to this analysis include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23, 114 S.Ct. at 371; Saxton, 10 F.3d at 534. Whether, on balance, the harassment was “sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment” (Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (internal quotation marks and citations omitted)) must be judged both from an objective viewpoint (i.e., that of the reasonable person) and from the subjective viewpoint of the plaintiff herself. Harris, 510 U.S. at 21-22, 114 S.Ct. at 370; Saxton, 10 F.3d at 534 (collecting cases).

From the evidence before us, a jury could reasonably characterize Venters’ work environment at the Delphi police station as hostile and abusive. Without undertaking an exhaustive review of all of the evidence that might be pertinent to this assessment, we note that, by Venters’ account, Ives repeatedly subjected her to lectures (at work, during working hours) about her prospects for salvation, made highly personal inquiries into her private life (whether there was truth to purported rumors that she entertained guests in her home with pornography, for example), and ultimately went so far as to tell her that she led a sinful life, that he was certain she had had sex with family members and possibly animals, that she had sacrificed animals in Satan’s name, and that committing suicide would be preferable to the life he believed Venters was living. The defendants insist that Venters never informed Ives that she objected to these conversations; on the contrary, they point out that Venters on occasion joined the dialogue with Ives, asking him various questions about his religious views. In essence, defendants appear to suggest that if this was harassment, it was welcomed by Venters. But Venters represents that on February 14, 1994, when Ives allegedly announced his conclusions as to her life of “sin,” she told Ives that he had “crossed the line” and would file suit if he did not keep maintain a professional relationship with her. Accepting that allegation as true, then whatever questions there might have been as to whether Venters welcomed these discussions were answered as of that date. Yet, Venters asserts that Ives did not refrain from proselytizing, and that the religious remarks continued unabated through the date of her discharge more than eight months later. She has not, it is true, given us examples of the kind of remarks that Ives made after she warned him to stop, but given the specificity with which she has described the discussions that predated that warning, we may assume that there was no significant change in Ives’ purported behavior. See Dey v. Colt Const. & Dev. Co., supra, 28 F.3d at 1456-57. Venters has made clear that she found Ives’ words to her offensive; she has also made clear that in view of his threats to terminate her if she did not “save” herself, she found it difficult to tell Ives that she did not wish to engage in these discussions (although ultimately, she allegedly did so). Accepting Venters’ recounting of the facts, we also think that a reasonable person in Venters’ position could have found her

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work environment hostile. As Venters has described them, Ives’ remarks were uninvited, were intrusive, touched upon the most private aspects of her life, were delivered in an intimidating manner, in some cases were on their face scandalous, and were unrelenting throughout the entire period post-dating his appointment as chief of police, continuing even after she had informed him that his comments to her were inappropriate. Cf. Weiss v. United States, 595 F.Supp. at 1056 (“Continuous abusive language, whether racist, sexist, or religious in form, can often pollute a healthy working environment by making an employee feel uncomfortable or unwanted in his surroundings.”); Compston v. Borden, 424 F.Supp. at 160-61 (“When a person vested with managerial responsibilities embarks on a course of conduct calculated to demean an employee before his fellows because of the employee’s professed religious views, such activity will necessarily have the effect of altering the conditions of his employment.”).

ii. Although quid pro quo harassment is most familiar to us in the form of supervisors soliciting sexual gratification from their subordinates, the facts as Venters has recounted them demonstrate that this type of harassment is not limited to gender discrimination. Our analysis in this respect can be brief. As we have emphasized already, Ives did not, by Venters’ account, simply share his religious beliefs with her, but instead he made it clear to her that if she did conform to those views, she would be discharged. To recap: Ives told Venters that in order to be a good employee, one had to be spiritually whole, and to meet that criterion one had to be “saved”; he described the police station as “God’s house,” and warned her that he would “trade” her if she did not play by “God’s rules,” if she did not embrace “God’s way” over “Satan’s”; Ives made repeated inquiries into her personal life, including whether she was attending religious services, suggesting that he was assessing her progress toward “salvation”; eventually, Ives concluded that an “evil spirit has taken [Venters’] soul,” and he admonished her that he would not allow that “evil spirit” to reside in the police department. In addition, we note that when Venters eventually told Ives that he had “crossed the line,” she warned him not only that she might sue if he did so again, but also that if he discharged her she would contest her dismissal in court. Ives’ response allegedly was that no one’s work was perfect, and that he would get the proof he needed to “put the handcuffs on her himself.” From all of this, a jury could reasonably conclude that Ives made adherence to his set of religious values a requirement of continued employment in the police department. This fits neatly within the quid pro quo framework.

4. Ives’ First Amendment Rights. We acknowledge, finally, that there may be some tension between the rights that Venters enjoys under the First Amendment and Title VII and Ives’ own First Amendment rights. As the appellees’ counsel noted at argument, Ives not only holds strong religious convictions, but he believes that “the Bible requires him to witness those [beliefs] to people who want to hear it.” Yet, a key premise of Venters’ case is that she had a right to be left alone to exercise her own thoughts on the subject of religion in private, free of interference from her governmental employer. The Eighth Circuit’s divided decision in Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir.1995) (en banc), cert. denied, 516 U.S. 1158, 116 S.Ct. 1042, 134 L.Ed.2d 189 (1996), touches upon this tension. Compare id. at 658-59 (majority) with id. at 660 (dissent) and 37 F.3d 404, 409-10 (8th Cir.1994) (panel majority), vacated on grant of reh’g en banc (Nov. 25, 1994); see also E.E.O.C. v. Townley Eng’g & Mfg. Co., 859 F.2d 610, 619-22 (majority), 622-25 (dissent) (9th Cir.1988), cert. denied, 489 U.S. 1077,

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109 S.Ct. 1527, 103 L.Ed.2d 832 (1989). We are not called upon to draw lines at this juncture. We merely take the opportunity to reiterate that Venters’ case, as we understand it, does not rest on allegations of mere discomfort with religious views that we may assume Ives, even as a public official, was free to express, but upon allegations that Ives used his office to impose his religious views on Venters as his subordinate. Whatever the First Amendment may have entitled Ives to believe, to say, or to do, it did not permit him as a public official to require his subordinate to conform her conduct and her life to his notion of “God’s rule book.” See Everson v. Board of Educ., supra, 330 U.S. at 15-16, 67 S.Ct. at 511. It did not allow him to condition her continued employment on the state of her “salvation.” Ibid; Torcaso v. Watkins, supra, 367 U.S. at 495-96, 81 S.Ct. at 1683-84. It did not grant him license to make highly personal remarks about the status of her soul when informed that these remarks were unwelcome. Whether he actually did any of this is, of course, for the jury to decide. …

DISCUSSION QUESTIONS

50. Which of Venters’s claims seems strongest? Which seems weakest?

51. 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? Does it matter whether the supervisor’s religion requires them to share their beliefs?

Tillery v. ATSI, Inc.

242 F.Supp.2d 1051 (N.D.Ala. 2003)

SMITH, District Judge. Plaintiff, Darla Tillery, alleges that her former employer subjected her to a religiously hostile work environment, and then terminated her because she did not conform her behavior to her supervisor's religious beliefs, all in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The action presently is before the court on defendant's motion for summary judgment. …

Upon consideration of the pleadings, evidentiary submissions, and briefs, the court concludes that defendant's motion for summary judgment should be granted in part and denied in part.

I. SUMMARY OF FACTS. Defendant, ATSI, Inc., “is a data communications contractor whose principal business is the installation of computer network cabling for grocery store retailers.” The company employs between ten and forty employees. FN2 Plaintiff was hired as an office worker during August of 1998. She was promoted to office manager on September 29, 1999. Her immediate supervisor was Christopher Miller, the founder, “owner,” and president of the defendant corporate entity. FN2. … This is a wide swing in the numerical span and, if the number of persons normally employed by defendant is closer to the low end, it raises a red flag as to whether defendant is subject to suit under Title VII of the 1964 Civil Rights Act. “The term ‘employer’ means a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year....” 42

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U.S.C. § 2000e(b). “Title VII jurisdiction does not lie over a case in which the fifteen-employee minimum is not satisfied.” I A. Larson and L. Larson, Employment Discrimination § 5.02[1], p. 5-8 (2002).

Miller is a member of St. Paul's Catholic Church in Athens, Alabama. Significantly, plaintiff's husband also is a Catholic. Plaintiff's personal religious affiliation is not clear, but she was reared as a Baptist. Throughout plaintiff's employment, Miller attempted to impress his religious beliefs upon her, as illustrated by the following incidents:

(1) Miller regularly invited plaintiff to attend his church. Plaintiff and her husband accepted Miller's offer and attended one Sunday Mass. The following day, Miller told plaintiff that “[i]t was nice to see you at church.” When plaintiff did not attend Mass on other occasions, however, Miller questioned her as to why he did not see her at church. Plaintiff also stated that sometimes Miller “wouldn't speak to [her],” or he would tell her that she was “ ‘f'-ing up.” Plaintiff inferred that Miller treated her this way because she had not attended church the prior Sunday. Additionally, Miller sometimes would respond to plaintiff's absence by saying “[o]h, well,” or that plaintiff “needed to pray.”

(2) About six months after plaintiff attended Miller's church, he asked her about her “illegitimate” children, who were fathered by a man that plaintiff never married.FN14FN14. Plaintiff's deposition testimony as to what Miller said on this point is unintelligible: “[Miller] asked about my children, fathers of the children. And I just said I didn't talk about my father's-‘Well, they are illegitimate.’ ‘No, they are not. They are mine.’ ” ( Id. at 71.) Miller also asked plaintiff “how could [she] do that?” ( Id.)

(3) During her second year of employment, Miller questioned plaintiff about her divorce from her previous husband, and voiced his opinion that she needed “ ‘to get [her] marriage annulled’ and ... unless [plaintiff's previous] marriage was annulled, [she] would never be able to belong to the [Catholic] church, because [she] was a divorced woman.” At a later date, Miller asked plaintiff “if [she] was going to pursue [her] annulment,” and plaintiff replied “no.”

(4) Miller placed rosary beads and pamphlets near plaintiff's desk and asked her to “hand them out.” Plaintiff allowed the items to remain in her work area, but she refused to distribute them. Miller also told plaintiff that she “needed to take them home, take some home to [her] kids, [her] family,” and that she “needed one for herself.” While it is not clear whether plaintiff took any of the religious items home, she did hang a rosary on the wall near her desk.

(5) After overhearing a conversation indicating that plaintiff was having trouble with her son, Miller asked her to tell him the specifics of the problem. Plaintiff told Miller that her son had grabbed her arm and bruised it. Miller then said “[y]ou need to get him in church and yourself in church.”

(6) When Miller discovered that plaintiff and her husband were having financial difficulties, he advised that “[m]aybe you should pray, it will help.”

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(7) During the summer of 2000, Miller researched the visions of the Virgin Mary seen in Fatima, Portugal, around 1917. He asked plaintiff to assist him by searching the Internet for information. When plaintiff asked Miller who Fatima was, he said “[y]ou're stupid,” and told her that she “would have learned it in church if you went to church.”

(8) On plaintiff's performance evaluation dated July 14, 2000, Miller wrote under the section entitled “supervisor's comments” that plaintiff should “keep going to church, seek God 1st[;] all other things will come.” Plaintiff received a score of 86 out of 100, or a “B+,” on the evaluation.

(9) In plaintiff's termination letter dated January 18, 2001, Miller stated that “after great prayer to God and anguish of Heart I have come to the decision that your position here with ATSI, Inc., be terminated.” Miller also used the closing “Your Brother in Christ” and, in a postscript, wrote: “I strongly suggest you talk with God, just take some time by yourself and talk with him, no formal prayers required. If you'd like the Lord's prayer always helps me to open up to our heavenly Father.” Miller then set forth the Lord's prayer, with citations to scripture.

One of plaintiff's principal duties as office manager was to prepare and send invoices to defendant's clients. The timely delivery of invoices is crucial to both defendant and its clients, for obvious reasons of budgeting, accounting, and profitability. In fact, plaintiff routinely sent invoices by Federal Express two-day delivery service in order to ensure timely delivery.

Plaintiff did not work on January 15, 2001, due to illness. In her absence, Kim Prater, defendant's warehouse manager, performed plaintiff's office manager duties.While looking for a telephone book in plaintiff's desk, Prater discovered over 130 “original” invoices, totaling more than $200,000 owed to defendant. The invoices were all dated between October 11, 1999 and January 10, 2001. Ordinarily, original invoices were sent to clients on the same dates typed on the invoices. Prater quickly informed Miller of her discovery. Miller checked company records to determine the status of the accounts, and confirmed that none of the invoices found by Prater had been paid. He then telephoned several clients, and learned that none had received invoices. Miller concluded that plaintiff had failed to process these invoices, and terminated her on the next day that he had an opportunity to speak with her about the incident, January 18, 2001. (Plaintiff only worked a few hours on January 16 and 17 due to her illness, and Miller testified that, as a consequence, he did not want to confront her on either of those days.)

Plaintiff alleges that she was wrongfully terminated, saying the invoices found by Prater actually were copies of “resubmits” that Miller had asked her to prepare, as opposed to original invoices that had never been sent to customers. (During deposition, Miller defined “resubmits” as a “broad term” used to describe the “infrequent” practice of preparing a second invoice when “the client never got an original invoice[,] or if they got an original invoice and lost it.”)

II. DISCUSSION. Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis supplied). The term “religion” is defined as including “all aspects of religious observance and practice,

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as well as belief, unless the employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.” 42 U.S.C. § 2000e(j). As noted in the beginning of this opinion, plaintiff's personal religious affiliation is not clear, but she was reared as a Baptist. Even so, Title VII protects persons who are not members of organized religious groups, see International Association of Machinists & Aerospace Workers v. Boeing Co., 833 F.2d 165, 169 (9th Cir.1987), as well as atheists. See Young v. Southwestern Savings and Loan Association, 509 F.2d 140, 142 & n. 3 (5th Cir.1975).

A. Termination. As in any other discriminatory discharge case, plaintiff can establish that she was discharged on the basis of her religion, or lack thereof, with either direct or circumstantial evidence. Plaintiff claims that she has “direct evidence that she was terminated from her position with ATSI because of her failure to attend church with her boss and her failure to properly respond to her bosses [sic] inquiries about her personal life and religion.” This court disagrees.

Direct evidence is generally defined as evidence which, if believed, proves the existence of a fact in issue without the need of an inference or presumption. … The standard for proving discriminatory intent by direct evidence is a stringent one, however, and only the most blatant comments will suffice. Earley v. Champion International Corp., 907 F.2d 1077, 1081-82 (11th Cir.1990). “The most obvious and compelling example” of such evidence in the context of a case in which the plaintiff contends that she was discharged on the basis of her religion “would be a remark to the effect that ... ‘I'm firing you because you're not a Christian.’” Venters v. City of Delphi, 123 F.3d 956, 972-73 (7th Cir.1997). Here, none of Miller's religious statements or actions rise to that level.

In the absence of direct evidence, plaintiff must rely upon circumstantial evidence and navigate the burden-shifting analysis first promulgated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and then elaborated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). … [The court then notes the variety of formulations of the prima facie case.]

Ultimately, however, it does not matter which prima facie formulation is applied because, even assuming that plaintiff carried her burden in that regard, she still has not established that defendant's stated reason for her termination is pretextual.

Defendant says that plaintiff was terminated only after it was discovered that she had failed to forward more than 130 invoices to customers, totaling in excess of $200,000 owed to the company. In support of its assertion that plaintiff did not transmit the invoices, defendant submitted the affidavit of one of its customers, stating that his company did not receive several of the invoices that plaintiff claims to have mailed. Plaintiff's only response to this evidence is to assert her innocence. Such a denial does not prove that defendant's proffered reason is pretextual because, even were it conceded that plaintiff actually did transmit the disputed invoices, the relevant inquiry is whether Miller believed that plaintiff had not done so when he terminated her. See, e.g., Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1363 n. 3 (11th Cir.1999) (holding that “[a]n employer who fires an employee under the mistaken but honest impression that

IX-16

the employee violated a work rule is not liable for discriminatory conduct”); Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3d Cir.1995) (“Pretext is not demonstrated by showing simply that the employer was mistaken.”) (citation omitted); cf. E.E.O.C. v. Total System Services, Inc., 221 F.3d 1171, 1176 (11th Cir.2000) (holding that the plaintiff “could properly be discharged based on Defendant's good faith belief that she lied in an internal investigation.”) (citations omitted). The record reflects that, on the date Miller terminated plaintiff, he had been told by at least one of his customers that the disputed invoices had not been received. Such information gave Miller a good-faith basis for believing that plaintiff had been derelict in the performance of her duties.

Further, plaintiff cannot demonstrate that defendant's proffered legitimate, nondiscriminatory reasons for her termination are not worthy of belief simply by quarreling with her employer's business judgment.

A plaintiff is not allowed to recast an employer's proffered nondiscriminatory reasons or substitute [her] business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.... We have recognized previously and we reiterate today that:

[f]ederal courts “do not sit as a super-personnel department that reexamines an entity's business decisions. No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [the relevant federal civil rights statute] does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior.”

Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.2000) (en banc) (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)) (other citations omitted); see also, e.g., Denney v. City of Albany, 247 F.3d 1172, 1186 n. 8, 1188 (11th Cir.2001); Damon, 196 F.3d at 1361 (“We have repeatedly and emphatically held that a defendant may terminate an employee for a good or bad reason without violating federal law. We are not in the business of adjudging whether employment decisions are prudent or fair.”) (internal citation omitted). Accordingly, plaintiff's discriminatory termination claim is due to be dismissed.

B. Hostile Work Environment. Title VII, as previously noted, prohibits employment discrimination against an individual with respect to her “compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1) (emphasis supplied). As the Supreme Court observed in Meritor Savings Bank, FSB v. Vinson, “the phrase ‘terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment ...’ in employment.” 477 U.S. 57, 64, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986) (citations omitted).

Consequently, the reach of Title VII is not limited solely to discrimination that can be described as “economic” or “tangible.” Meritor, 477 U.S. at 64, 106 S.Ct. at 2404. It extends to workplace harassment that is attributable to the plaintiff's sex, as Meritor made clear, as well as to her religion. Id. at 66, 106 S.Ct. at 2405 (citing Compston v. Borden, Inc., 424 F.Supp. 157 (S.D.Ohio 1976)); Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993); Iovin v. Northwestern Mem. Hosp., 916

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F.Supp. 1395, 1409 (N.D.Ill.1996) (Castillo, J.); Shapiro v. Holiday Inns, Inc., 1990 WL 44472, *9 (N.D.Ill. April 6, 1990) (Kocoras, J.); see also, e.g., Ellis v. Wal-Mart Stores, Inc., 952 F.Supp. 1513, 1518 (M.D.Ala.1996); Goldberg v. City of Philadelphia, 65 Empl. Prac. Dec. para. 43,221, 1994 WL 313030, *10-11 (E.D.Pa. June 29, 1994); Turic v. Holland Hospitality, Inc., 849 F.Supp. 544, 551 (W.D.Mich.1994), aff'd. in part & rev'd in part on other grounds, 85 F.3d 1211 (6th Cir.1996); Turner v. Barr, 811 F.Supp. 1, 2 (D.D.C.1993); Weiss v. United States, 595 F.Supp. 1050, 1056 (E.D.Va.1984).

Venters v. City of Delphi, 123 F.3d at 974-75 (emphasis supplied).

While the Eleventh Circuit apparently has not addressed a hostile work environment claim based on a plaintiff's religion, this court finds that the test applied to hostile work environment claims based on other prohibited characteristics ( e.g., sex, race, or national origin) is equally applicable to the assessment of a religiously-hostile work environment claim. See id. at 975 (observing that, “as Meritor itself reveals, the federal courts have been applying hostile environment principles to harassment based on race, religion, and national origin as well as sex in the twenty-five years since the Fifth Circuit's ground breaking decision in Rogers v. E.E.O.C., 454 F.2d 234 (5th Cir.1971), cert. denied, 406 U.S. 957, 92 S.Ct. 2058, 32 L.Ed.2d 343 (1972). See 477 U.S. at 65-66, 106 S.Ct. at 2405.”)

The Third Circuit reached just such a conclusion in Abramson v. William Paterson College of New Jersey, 260 F.3d 265 (3d Cir.2001), saying:

We have yet to address a hostile work environment claim based on religion. However, Title VII has been construed under our case law to support claims of a hostile work environment with respect to other categories ( i.e., sex, race, national origin). We see no reason to treat Abramson's [religiously-]hostile work environment claim any differently, given Title VII's language. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting employers from discriminating against an individual because of “race, color, religion, sex, or national origin.”). Therefore, we apply the well-established framework for hostile work environment claims with respect to other protected categories to our analysis of a hostile work environment claim made on account of religion.

Abramson, 260 F.3d at 276 n. 5; see also Durant v. Nynex and Bell Atlantic Corp., 101 F.Supp.2d 227, 234 (S.D.N.Y.2000) (evaluating a religiously-hostile work environment claim under a generally-applicable prima facie test); Sanders v. Women's Treatment Center, 9 F.Supp.2d 929, 942 (N.D.Ill.1998) (same).

Whether or not the plaintiff's work environment may be considered “hostile” for purposes of Title VII is an assessment that depends on the totality of the circumstances. Harris [ v. Forklift Systems, Inc.], 510 U.S. [17,] 23, 114 S.Ct. [367,] 371 [126 L.Ed.2d 295 (1993) (holding that a Title VII hostile work environment claim is established upon proof that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment”) ]; Saxton v. American Tel. & Tel. Co., 10 F.3d 526, 534 (7th Cir.1993). Factors pertinent to this analysis include “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Harris, 510 U.S. at 23, 114 S.Ct. at 371; Saxton, 10 F.3d at 534. Whether, on balance, the harassment was “sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment”

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( Meritor, 477 U.S. at 67, 106 S.Ct. at 2405 (internal quotation marks and citations omitted)) must be judged both from an objective viewpoint ( i.e., that of the reasonable person) and from the subjective viewpoint of the plaintiff herself. Harris, 510 U.S. at 21-22, 114 S.Ct. at 370; Saxton, 10 F.3d at 534 (collecting cases).

Venters v. City of Delphi, 123 F.3d at 975-76 (bracketed alterations added).

Admittedly, the facts of this case are not as egregious as those addressed by the Seventh Circuit in Venters; even so, this court concludes, on the basis of the evidence summarized in paragraphs (1) through (9) of Section I supra, that a reasonable jury could characterize plaintiff's work environment as religiously hostile and abusive. Like the supervisor in Venters, Christopher Miller repeatedly subjected plaintiff to lectures about her prospects for salvation during working hours, made highly personal inquiries into her private life ( e.g., the legitimacy of her children, and whether a prior marriage had been terminated by divorce versus the doctrine of annulment sanctioned by the Catholic Church), and “strongly suggest[ed][she] talk with God.” Without undertaking an exhaustive review of all of the evidence that might be pertinent to the assessment, the court concludes that a reasonable person in plaintiff's position could have found her work environment to be hostile and abusive. …

ORDER. In accordance with the memorandum opinion entered contemporaneously herewith, defendant's motion for summary judgment is granted in part, and denied in part. All of plaintiff's claims are dismissed with prejudice, except for her religiously-hostile work environment claim. …

DISCUSSION QUESTIONS: TILLERY

52. Do you agree with the resolution of the Disparate Treatment claim?

53. Do you agree with the resolution of the Hostile Environment claim?

54. Would the Tillery facts support a quid pro quo claim of the kind described in Venters?

55. What is the appropriate way for an employee to handle the kind of situation described in Tillery?

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(C) Religious Coercion in the Workplace

PREVIEW DISCUSSION QUESTIONS: 56. In which of the three cases that follow does the plaintiff have the strongest claim for relief? In which case the weakest?

57. In any of the three cases that follow, would the plaintiff have a viable religious hostile environment or quid pro quo case?

58. What do the three cases suggest is the right way for an employee to address perceived religious coercion prior to starting legal proceedings?

EEOC v. Townley Engineering & Mfg. Co.

859 F.2d 610 (9th Cir. 1988)

SNEED, Circuit Judge: Townley Manufacturing Company appeals the district court’s injunction halting its mandatory devotional services at its Eloy, Arizona plant. We substantially affirm the district court, but remand to permit the framing of its injunction more narrowly.

I. FACTS AND PROCEEDINGS BELOW. Townley Manufacturing Company (Townley) is a closely held corporation organized under the laws of Florida. It manufactures mining equipment. It was founded in 1963 by J.O. (Jake) and Helen Townley, who still own about 94% of the stock. When they founded the company, Jake and Helen Townley made a covenant with God that their business “would be a Christian, faith-operated business.” The Townleys were and are “born again believers in the Lord Jesus Christ” who “are unable to separate God from any portion of their daily lives, including their activities at the Townley company.” Appellant’s Brief at 6. Townley opened its first plant in Florida; it has since opened other plants, including one in Eloy, Arizona in 1973.

Townley reflects its founders’ covenant with God in several ways. For example, the company encloses a Gospel tract in every piece of outgoing mail; it prints Biblical verses on all company invoices, purchase orders, and other commercial documents; it gives financial support to various churches and missionaries; and, of particular importance to this case, it holds a devotional service once a week during work hours.

Townley’s Florida plant has had weekly devotional services since its inception. They typically last from thirty to forty-five minutes, and may include prayer, thanksgiving to God, singing, testimony, and scripture reading, as well as discussion of business related matters. Townley required all employees to attend the weekly services; failure to attend was regarded as equivalent to not attending work.

In November 1979, Townley hired Louis Pelvas as a machinist in its Eloy plant. At that time there were no devotional services conducted at the Eloy plant. In December 1982, Townley gave its employees an employee handbook, which stated the company’s policies and rules. Under the heading of company rules, the handbook stated: “All employees are required to attend the non-denominational devotional services each

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Tuesday. Employees are paid for their time while attending these services.” Pelvas read the handbook and signed a statement agreeing, inter alia, “to abide by all the requirements and policies stated within that handbook, as a condition of my continued employment with Townley.... I recognize that failure on my part to keep this agreement may result in my dismissal from the company.” Excerpt of Record, tab 49.

Townley did not institute devotional services at its Eloy plant until April 1984. Pelvas attended the services without complaint only until June 1984, when he asked to be excused from the services because he was an atheist. His supervisor told him that attendance was mandatory. The supervisor also stated that Pelvas could sleep or read the newspaper during the services. Pelvas continued to attend the services, but in October 1984 he filed a religious discrimination charge with the Equal Employment Opportunity Commission. In December 1984, Pelvas left the company. Pelvas states that he was constructively discharged; Townley says that Pelvas refused to accept an offer of transfer to another plant.

In July 1986, the EEOC filed this action against Townley. The EEOC charged that Townley violated section 703(a) of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e-2(a), (1) by requiring its employees to attend devotional services, (2) by failing to accommodate Pelvas’ objection to attending the services, and (3) by constructively discharging Pelvas. In May 1987, the district court granted the EEOC’s motion for summary judgment on the first two issues, and issued a permanent injunction prohibiting Townley from continuing the mandatory devotional services at its Eloy plant. The court denied summary judgment on the constructive discharge issue. EEOC v. Townley Eng’g & Mfg. Co., 675 F.Supp. 566 (D.Ariz.1987). Townley appealed the grant of summary judgment to this court.1

1 The parties went to trial on the constructive discharge issue, and in April 1988 the court found for Townley. That issue is not before us

… IV. THE REACH OF TITLE VII Townley argues both that Title VII was not intended to apply to this employment policy, and that the proposed application of Title VII would violate the Free Exercise Clause of the First Amendment. It is clear that applying Title VII to the devotional services “would give rise to serious constitutional questions.” See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501, 99 S.Ct. 1313, 1319, 59 L.Ed.2d 533 (1979). Therefore, we may not find it applicable unless there is an “affirmative intention of Congress clearly expressed” that it should be so applied. Id.; see EEOC v. Fremont Christian School, 781 F.2d 1362, 1365 (9th Cir.1986); EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272, 1276 (9th Cir.1982).

We hold that Congress did clearly intend for Title VII to cover Townley’s mandatory devotional services. Sections 701(j) and 703(a) of Title VII make clear that requiring employees over their objections to attend devotional services cannot be reconciled with Title VII’s prohibition against religious discrimination. Furthermore, we hold that Congress did not intend section 702’s exemption for religious corporations to shield corporations such as Townley.2 We do hold, however, that Jake and Helen Townley have certain rights under the Free Exercise Clause that Title VII cannot infringe.

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2 We note that under the facts of this case, no construction of section 702 would avoid significant First Amendment questions. If we held that Townley was a “religious corporation” under the meaning of section 702, and therefore exempt from Title VII's prohibition against religious discrimination, then we might be faced with a question the Supreme Court left open in Corporation of the Presiding Bishop v. Amos, --- U.S. ----, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987): whether exemption of a religious corporation's for-profit activities violates the Establishment Clause. See id. at 2875 (O'Connor, J., concurring in the judgment)

A. Sections 701(j) and 703 of Title VII

1. Discrimination on the Basis of Religion in General. As originally enacted, Title VII of the Civil Rights Act of 1964 simply prohibited employment discrimination on the basis of religion. This prohibition clearly covered discrimination on the basis of religious belief; whether it protected employees’ religious practices was less clear. To clarify the point, Congress amended Title VII in 1972 by adding a definition of religion. The definition, contained in section 701(j), states:

The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

42 U.S.C. Sec. 2000e(j). “The intent and effect of this definition was to make it an unlawful employment practice under Sec. 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.” Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 74, 97 S.Ct. 2264, 2272, 53 L.Ed.2d 113 (1977). Accommodation by the employer to the employee’s religious practices was made a statutory obligation.

2. Order of Proof. We have read sections 703(a) and 701(j) as creating a two-part framework in religious practice cases. First, the plaintiff must establish a prima facie case of religious discrimination. We have elaborated on the requirements of the plaintiff’s burden in other opinions. We need not review the requirements in detail here, because Townley does not contest that the EEOC has met them. Suffice it to say that after the plaintiff has made out a prima facie case, the burden shifts to the employer “to prove that [it] made good faith efforts to accommodate [the employee’s] religious beliefs and, if those efforts were unsuccessful, to demonstrate that [it was] unable reasonably to accommodate his beliefs without undue hardship.” Anderson v. General Dynamics Convair Aerospace Div., 589 F.2d 397, 401 (9th Cir.1978).

3. Accommodation. Townley admits that it has made no effort to accommodate Pelvas’ objections to the services. It argues that Title VII does not require accommodation because (1) any attempt at accommodation would have caused it “undue hardship,” and (2) Pelvas “waived the accommodation requirement when he voluntarily consented to attending the devotional services at the time he executed the signature page of the Employee Handbook agreeing to comply with all the policies of Townley,” Appellant’s Reply Brief at 8-9.6

6 Townley also argues that section 702 of Title VII exempts it completely from Title VII's religious accommodation requirement. See Part IV.B., infra

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The language from Anderson quoted above might be read to imply that an employer cannot bring up “undue hardship” unless it first proves that it made good faith efforts to accommodate the employee’s practice. See also American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986) (“it is incumbent upon the employer to undertake some initial steps to reach a reasonable accommodation of the particular religious belief at issue”); Burns v. Southern Pac. Transp. Co., 589 F.2d 403, 405-06 (9th Cir.1978), cert. denied, 439 U.S. 1072, 99 S.Ct. 843, 59 L.Ed.2d 38 (1979). However, it is doubtful that this language should be read so broadly. If an employer can show that no accommodation was possible without undue hardship, it makes no sense to require that he engage in a futile act. See Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 107 S.Ct. 367, 372, 93 L.Ed.2d 305 (1986) (“the extent of undue hardship on the employer’s business is at issue only where the employer claims that it is unable to offer any reasonable accommodation without such hardship”). The language in our cases merely emphasizes that the burden of attempting an accommodation rests with the employer rather than the employee. When an employer does not propose an accommodation, or when its proposed accommodation does not eliminate the employee’s religious conflict, the employer must accept the employee’s proposal or demonstrate that the proposal would cause the employer undue hardship. See American Postal Workers Union v. Postmaster General, 781 F.2d 772, 776 (9th Cir.1986); Burns, 589 F.2d at 406.

Pelvas proposed that Townley accommodate his religious objections to the devotional services by excusing him from attendance. The district court found that this accommodation would have caused Townley no undue hardship. It stated, “Excusing Pelvas from the mandatory devotional services would have cost Townley nothing in the operation of its business activities, and would not have disrupted other workers.” 675 F.Supp. at 568. We agree.

Townley argues that the district court should have considered the spiritual hardship the accommodation would have caused. We acknowledge that spiritual costs can exist. Congress has so recognized by its enactment of sections 702 and 701(e).8 Townley is, of course, right when it says, “Cost cannot always be measured in terms of dollars. Spiritual ‘costs’ must also be given consideration....” Appellant’s Brief at 27. It is very doubtful, however, that such “costs” can impose on a corporate employer the required level of hardship.8 In addition, section 703(e)(1) allows employers to hire employees on the basis of their religion if it is a “bona fide occupational qualification”; section 703(e)(2) allows religious educational institutions to discriminate on the basis of religion

The difficulty is that under the statute the employer must show that the accommodation of a religious practice would cause “undue hardship on the conduct of the employer’s business.” 42 U.S.C. Sec. 2000e(j) (emphasis added). To assert that excusing Pelvas from the services would have inflicted spiritual costs on the company, or on Jake and Helen Townley is not enough. Cf. Burns, 589 F.2d at 407 (proof of coworkers’ “unhappiness with a particular accommodation” is not enough to show undue hardship). Townley, the corporate entity, must connect the asserted spiritual hardship to

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an adverse impact on the conduct of the business. “A claim of undue hardship cannot be supported by merely conceivable or hypothetical hardships; instead, it must be supported by proof of ‘actual imposition on coworkers or disruption of the work routine.’” Tooley v. Martin-Marietta Corp., 648 F.2d 1239, 1243 (9th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981) (quoting Burns, 589 F.2d at 406-07); see also Hardison, 432 U.S. at 81, 97 S.Ct. at 2275 (Title VII does not require rights of coworkers to be infringed in order to accommodate employee’s religious practice); 3 Larson, Employment Discrimination Sec. 92.12, at 19-35 to -47 (1987) (arguing that the most important factor in Hardison was impact on coworkers, not impact on employer). The statute, in brief, posits a gain-seeking employer exclusively concerned with preserving and promoting its economic efficiency. This is a legitimate supposition with respect to corporate employers.

It follows that Townley’s attempts to link the alleged spiritual hardship to the conduct of the business must fail. It is not enough to argue that Townley was founded to “share with all of its employees the spiritual aspects of the company,” Appellant’s Brief at 27, and that the proposed accommodation would have a “chilling effect” on that purpose. To “chill” its purpose is irrelevant if it has no effect on its economic well-being.

It is true, of course, that Title VII does not ignore entirely the spiritual objectives of employers. Section 702 of Title VII expressly excludes religious corporations, associations, educational institutions, and societies from Title VII’s prohibition against religious discrimination. 42 U.S.C. Sec. 2000e-1. It is likely that Congress intended section 702 to be the sole recourse of corporations professing to be religious.9

9 Unless, of course, the corporations are able to invoke successfully section 703(e)(1) or (2). See note 8, supra

However, even if this is not so, any effort in this case by Townley to show that its religious nature makes any accommodation of the religious belief of Pelvas an “undue hardship” under section 701(j) must fail. At most, Townley has stated that the ease with which it spreads its word to its employees would be slightly reduced were it to accommodate Pelvas. But “[u]ndue hardship means something greater than hardship.” Anderson, 589 F.2d at 402. Pelvas was allowed to listen to the radio and read at the services, and the Eloy plant operated for eleven years without requiring its employees to attend services. This hardly provides an adequate foundation for asserting that excusing Pelvas would have imposed undue spiritual hardship on Townley’s business.

Nor does the fact that the services also contain “business discussions” alter this conclusion. Townley argues that these business discussions cannot be separated from the rest of the service. Its only support for this assertion is Jake and Helen Townley’s statement that they cannot separate God from their business. It does not argue that the attempt to separate the secular aspects of the service from the religious would cause hardship to coworkers or disrupt the work routine. Stripped to its core, then, this argument is the one considered and rejected above--that the accommodation would cause spiritual hardship to Townley. Even if undue hardship to Townley’s business could be supplied by establishing a high degree of “spiritual hardship,” a rather doubtful proposition, Townley has failed to establish that level of hardship.

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Townley also argues that it did not have to accommodate Pelvas’ objections to the services because Pelvas waived his rights to accommodation by signing a page of the Employee Handbook which committed him to complying with Townley’s policies. The Supreme Court has stated that “there can be no prospective waiver of an employee’s rights under Title VII.” Alexander v. Gardner-Denver Co., 415 U.S. 36, 51, 94 S.Ct. 1011, 1021, 39 L.Ed.2d 147 (1974); see also Spirides v. Reinhardt, 613 F.2d 826, 832 (D.C.Cir.1979); McClure v. Salvation Army, 460 F.2d 553, 557 (5th Cir.), cert. denied, 409 U.S. 896, 93 S.Ct. 132, 34 L.Ed.2d 153 (1972); cf. J.I. Case Co. v. NLRB, 321 U.S. 332, 337, 64 S.Ct. 576, 580, 88 L.Ed. 762 (1944). There are exceptions to this general rule, see, e.g., Alexander, 415 U.S. at 52, 94 S.Ct. at 1022 (voluntary settlements); Bauman v. United States District Court, 557 F.2d 650, 658 n. 9 (9th Cir.1977) (plaintiff ineligible for class action), but we decline to add another. Allowing the waiver of Title VII rights through covenants in employment contracts would undermine Title VII’s policy of eradicating discrimination in employment.

B. The “Religious Corporation” Exemption of Section 702. Townley next argues that it is a “religious corporation” exempt from Title VII by the terms of section 702, which states in part:

This subchapter shall not apply ... to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

42 U.S.C. Sec. 2000e-1. The district court rejected this argument, as do we.

A brief review of the relevant legislative history is necessary. In 1963, the House Judiciary Committee drafted H.R. 7152, the bill which was the basis of much of the Civil Rights Act of 1964. Title VII of the bill included a section that stated the title would not apply to a “religious corporation, association, or society.” The committee report accompanying the bill did not elaborate on the section. However, the section was the subject of some debate in the House after Representative Purcell proposed amending H.R. 7152 to allow an educational institution to discriminate on the basis of religion if the institution was wholly or partly supported or managed “by a particular religion or by a particular religious corporation, association, or society,” or if the institution’s curriculum was “directed toward the propagation of a particular religion.” EEOC Legislative History of Titles VII and XI of the Civil Rights Act of 1964, at 3197 (1968).

The debate on this proposal is relevant because an issue in the debate was whether such institutions were already protected by the “religious corporation” exemption. The consensus was that they were not protected if they were merely “affiliated” with a religious organization. For example, Representative Celler, the chairman of the Judiciary Committee and one of the drafters of the bill, was asked whether a church-supported orphanage would already be covered by the bill. He said, “If it is a wholly church supported organization, that is, a religious corporation that comes under [then] section 703.” Id. at 3204 (emphasis added). This coverage was considered too narrow, and the House passed the proposed amendment.

Although this debate is far from comprehensive, it is the only useful legislative history we have on this section. Section 702 was amended by the Senate in 1964, and

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amended again by Congress in 1972, but the debate on the amendments sheds no more light on the definition of religious corporations.12 The debate over Representative Purcell’s amendment does indicate, however, that Congress’s conception of the scope of section 702 was not a broad one. All assumed that only those institutions with extremely close ties to organized religions would be covered. Churches, and entities similar to churches, were the paradigm.12 In the Senate, Senators Dirksen, Mansfield, Humphrey, and Kuchel drafted a substitute bill for the House bill. The substitute bill changed section 702 in two ways, both of which were adopted in the final draft of the Civil Rights Act. In the words of Senator Humphrey, who presented the bill to the Senate, the section

was amended to limit the general exemption of religious groups to those practices relating to the employment of individuals of a particular religion to perform work connected with the employer's religious activities, and to extend the exemption to private educational institutions with respect to the employment of individuals to perform work connected with the educational activities of such institutions.

Legislative History, supra, at 3004.

The Equal Opportunity Act of 1972 changed section 702 to its present form. First, it deleted the clause exempting all educational institutions, and included educational institutions among the religious organizations listed in the section. Second, it amended the section to allow the organizations to discriminate on the basis of religion with respect to all their activities, not just their religious ones.

As the district court noted, the case law on this question is not very helpful. In most cases, the defendant is clearly a “religious corporation, association, educational institution, or society” within the meaning of section 702 of the statute. See, e.g., EEOC v. Fremont Christian School, 781 F.2d 1362, 1364 (9th Cir.1986) (defendant was “private educational institution ... wholly owned and operated by the Assembly of God church”); EEOC v. Pacific Press Publishing Ass’n, 676 F.2d 1272, 1274 (9th Cir.1982) (defendant was “nonprofit corporation ... affiliated with the Seventh-Day Adventist Church” engaged in publishing “religiously oriented material”); Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164, 1164-65 (4th Cir.1985), cert. denied, 478 U.S. 1020, 106 S.Ct. 3333, 92 L.Ed.2d 739 (1986) (defendant was church); EEOC v. Mississippi College, 626 F.2d 477, 478 (5th Cir.1980), cert. denied, 453 U.S. 912, 101 S.Ct. 3143, 69 L.Ed.2d 994 (1981) (defendant was college owned and operated by convention of Southern Baptist churches). These cases, like the legislative history, demonstrate that the central function of section 702 has been to exempt churches, synagogues, and the like, and organizations closely affiliated with those entities.13

13 Of course, even without section 702, the First Amendment would limit Title VII's ability to regulate the employment relationships within churches and similar organizations. See Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 107, 73 S.Ct. 143, 150, 97 L.Ed. 120 (1952); McClure v. Salvation Army, 460 F.2d 553, 558-61 (5th Cir.1972)

At least one case has tested the limits of this exemption. In Fike v. United Methodist Children’s Home, 547 F.Supp. 286 (E.D.Va.1982), aff’d, 709 F.2d 284 (4th Cir.1983), the plaintiff alleged that the Children’s Home dismissed him from his position

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as director because it wanted a Methodist minister in the position. The court found that the Children’s Home “was founded by and over the years has had close ties with the Methodist Church.” Id. at 288. The Methodist Church became worried that the Home was becoming too secular, and as a result recommended that the Home hire a Methodist minister as director “in order to bring the Home back to the Church structure.” Id. at 289. Despite these facts, the court refused to find that the Home was a “religious corporation” within the meaning of section 702. After examining the purported religious and secular characteristics of the Home at length, id. at 289-90, the court stated:

While the original mission of the United Methodist Children’s Home may have been to provide a Christian home for orphans and other children, that mission has not remained unchanged. The facts show that as far as the direction given the day-to-day life for the children is concerned, it is practically devoid of religious content or training, as such. While the purpose of caring for and providing guidance for troubled youths is no doubt an admirable and charitable one, it is not necessarily a religious one. For an organization to be considered “religious” requires something more than a board of trustees who are members of a church. The Court, therefore, holds that for the purposes of the exemption in Sec. 2000e-1 the United Methodist Children’s Home is, quite literally, Methodist only in name. It is a secular organization.

Id. at 290.

Like the Fike court, we shall not attempt to outline section 702’s precise scope. The effort to do so would fail. Rather, each case must turn on its own facts. All significant religious and secular characteristics must be weighed to determine whether the corporation’s purpose and character are primarily religious. Only when that is the case will the corporation be able to avail itself of the exemption.

Townley and the EEOC do not dispute the “primarily religious” standard. They differ over whether Townley is primarily religious or secular. On the secular side, the company is for profit. It produces mining equipment, an admittedly secular product. It is not affiliated with or supported by a church. Its articles of incorporation do not mention any religious purpose. Against these elements are the facts that Townley encloses Gospel tracts in its outgoing mail, prints Bible verses on its commercial documents (such as invoices and purchase orders), financially supports churches, missionaries, a prison ministry, and Christian radio broadcasts, and, of course, conducts a weekly devotional service. Underlying these facts, of course, is “the discipleship Jake and Helen Townley have for the Lord Jesus Christ.”

When viewed together, we have no difficulty in holding that these characteristics indicate that Townley is primarily secular. We do not question the sincerity of the religious beliefs of the owners of Townley. Nor do we question that they regard the conduct of their company as subject to a compact with God. We merely hold that the beliefs of the owners and operators of a corporation are simply not enough in themselves to make the corporation “religious” within the meaning of section 702. We therefore agree with the district court that Townley is not exempt under section 702 from Title VII’s prohibition against religious discrimination.

V. FREE EXERCISE CLAUSE. We now address Townley’s contention that this application of Title VII violates its rights under the Free Exercise Clause of the First Amendment.

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Townley urges this court to hold that it is entitled to invoke the Free Exercise Clause on its own behalf. Because Townley is merely the instrument through and by which Mr. and Mrs. Townley express their religious beliefs, it is unnecessary to address the abstract issue whether a for profit corporation has rights under the Free Exercise Clause independent of those of its shareholders and officers. Townley presents no rights of its own different from or greater than its owners’ rights. See Appellant’s Brief at 35 (“Townley Company is an extension of the beliefs of Mr. and Mrs. Townley, and for all purposes, the beliefs of Mr. and Mrs. Townley are the beliefs and tenets of the Townley Company.”). Thus, the rights at issue are those of Jake and Helen Townley.

To determine whether the application of Title VII to this employment policy violates Mr. and Mrs. Townley’s Free Exercise rights, we must weigh three factors: “(1) the magnitude of the statute’s impact on the exercise of a religious belief; (2) the existence of a compelling state interest justifying the burden imposed upon the exercise of the religious belief; and (3) the extent to which recognition of an exemption from the statute would impede objectives sought to be advanced by the statute.” EEOC v. Fremont Christian School, 781 F.2d 1362, 1367 (9th Cir.1986); see United States v. Lee, 455 U.S. 252, 257-58, 102 S.Ct. 1051, 1055, 71 L.Ed.2d 127 (1982) (“The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest.”).

The Townleys state that the Bible and their covenant with God require them to share the Gospel with all of their employees. The EEOC does not dispute the sincerity of this belief, and in any event “[c]ourts are not arbiters of scriptural interpretation.” Thomas v. Review Bd., 450 U.S. 707, 716, 101 S.Ct. 1425, 1431, 67 L.Ed.2d 624 (1981). We therefore accept that ending mandatory attendance at the devotional services would have an impact on the Townley’s religious practice. But we do not believe that the impact would be unreasonable and extreme. The EEOC does not seek to enjoin the services altogether; rather, it only objects to their mandatory nature. As the EEOC points out, the Townleys would still be able to share the Gospel with their employees.16 Nevertheless, viewing the evidence in the light most favorable to the Townleys, it is clear that enjoining the services would make it more difficult for them to impart their religious message to their employees, and therefore to some extent would adversely affect their religious practices.16 We again note that (1) the mandatory services were not instituted at the Eloy plant for the first eleven years of its existence, and (2) Pelvas was allowed to read and listen to the radio at the services. We do not think these facts contradict the Townleys' assertion that excusing employees from the services would affect their religious practice, but they are evidence that the impact would not be great

The strength of the government’s interest in eradicating discrimination through Title VII is also clear. We have stated that “Congress’ purpose to end discrimination is equally if not more compelling than other interests that have been held to justify legislation that burdened the exercise of religious convictions.” Pacific Press, 676 F.2d at 1280. Protecting an employee’s right to be free from forced observance of the religion of his employer is at the heart of Title VII’s prohibition against religious discrimination.

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Finally, we must consider whether the elimination of mandatory attendance at the devotional services constitutes an application of Title VII that is the “least restrictive means” of furthering the state’s goal. We have said that this is “the critical aspect of the free exercise analysis.” Callahan v. Woods, 736 F.2d 1269, 1272 (9th Cir.1984). Callahan teaches that we measure the importance of a

regulation by ascertaining the marginal benefit of applying it to all individuals, rather than to all individuals except those holding a conflicting religious conviction. If the compelling state goal can be accomplished despite the exemption of a particular individual, then a regulation which denies an exemption is not the least restrictive means of furthering the state interest.

Id. at 1272-73 (citation omitted). Here, there is no doubt that to force the employee Pelvas to attend Townley’s devotional services would seriously impede Title VII’s goal.

The rights of the Townley’s under the Free Exercise Clause do not alter this conclusion. We recognize that allowing a statute to limit a constitutional right alters the normal relationship between a statutory right and a constitutional one. Nevertheless, it is settled that the right to religious practice (unlike the right to religious belief) may be limited by a statute if “it is essential to accomplish an overriding governmental interest.” United States v. Lee, 455 U.S. 252, 255, 102 S.Ct. 1051, 1054, 71 L.Ed.2d 127 (1982); see Braunfeld v. Brown, 366 U.S. 599, 603-04, 81 S.Ct. 1144, 1145-46, 6 L.Ed.2d 563 (1961); Callahan v. Woods, 736 F.2d 1269, 1272-73 (9th Cir.1984); Scott v. Rosenberg, 702 F.2d 1263, 1273-74 (9th Cir.1983), cert. denied, 465 U.S. 1078, 104 S.Ct. 1439, 79 L.Ed.2d 760 (1984).

Any reluctance to apply this teaching is lessened by the nature of the conflict in this case. Both the Townleys and Pelvas seek to pursue a religious practice. Where the practices of employer and employee conflict, as in this case, it is not inappropriate to require the employer, who structures the workplace to a substantial degree, to travel the extra mile in adjusting its free exercise rights, if any, to accommodate the employee’s Title VII rights.17

17 This does not mean that statutory rights generally are entitled to primacy over First Amendment rights. We only address the facts of this case

The transcendent principle in cases of this sort is accommodation. Where the religious practices of employers, such as the Townleys, and employees conflict, Title VII does not, and could not, require individual employers to abandon their religion. Rather, Title VII attempts to reach a mutual accommodation of the conflicting religious practices. This is consistent with the First Amendment’s goal of ensuring religious freedom in a society with many different religions and religious groups.

Therefore, we hold that, as applied in this case by the district court, Title VII’s requirement of religious accommodation does not unduly burden the Townleys’ free exercise rights save in one respect. The district court simply enjoined all mandatory services at Townley’s Eloy plant. We believe the district court’s decree was too broad. The goal of Title VII is served by protecting only those who have religious objections to the services. To protect those who do not have such objections is not necessary. Nor do we think that to require that the service be voluntary as to all employees, whether that is

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their wish or not, is necessary to further the purposes of Title VII. Following this decision, it is not likely that fear of intimidation will suppress requests to be excused on religious grounds. Obviously such requests must be honored by both Townley and the Townleys. Therefore, on remand the district court should frame the injunction accordingly.

NOONAN, Circuit Judge, dissenting: In the performance of its mission in this case, the EEOC is asserting a position that, like the Townley Manufacturing Company’s, must find its roots in the First Amendment. The right to believe necessarily implies the right not to believe. Conscience cannot be governmentally coerced. The Free Exercise Clause embraces the atheist with the orthodox. Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961). To exempt an activity from governmental regulation because of its religious nature is to accord a benefit to religion. Corporation of Presiding Bishop v. Amos, --- U.S. ----, ----, 107 S.Ct. 2862 at 2874, 97 L.Ed.2d 273 (1987) (O’Connor, J., concurring). The EEOC could not exempt the Townley Manufacturing Company to the disadvantage of Pelvas if the effect of exemption were to coerce Pelvas to practice the company’s religion or to give up his own.

No such showing of coercion has been made. According to Pelvas he was explicitly told that if he attended the prescribed meetings he could wear ear plugs and read a book or sleep. Wearing ear plugs, he was not exposed to hearing a word of doctrine subversive of his atheism. Reading a book or sleeping, he was not participating in any form of worship.

One can readily imagine gatherings of worshippers where merely entering the church or crossing the temple door in their company would be a symbolic act committing one to worship. Compulsion to attend such gatherings would be deeply offensive to the conscience. One can readily imagine schoolchildren summoned to an auditorium and subjected to religious propaganda. Compulsion of the children would be equally obnoxious to religious freedom. But the gatherings to which Pelvas has objected took place on company property during company time; and he was no child but a mature man. Presence at the gathering was not a religious act nor, as far as the record shows, a symbolic association with worship nor subjection to a religious message. Indeed what Pelvas was permitted to do was the antithesis of worship, the opposite of indoctrination. He was allowed to disassociate himself in the most public way from the devotional services that were conducted. He was allowed to turn off and shut out the inspirational message. If he had been discharged or penalized or even ostracized for such behavior he and the EEOC would have cause for complaint. But in fact there has been no showing that such acts as he was permitted to perform, contemptuous as they were of the services, have been or would have been the subject of discipline or disadvantage to Pelvas. The Townley Manufacturing Company has already accommodated Pelvas’ conscientious unwillingness to participate in its services.

The court appears to gloss Sec. 701(j) to mean that the employer must accept the employee’s proposed accommodation unless the employee’s proposal causes undue hardship. That is not the law: “By its very terms the statute directs that any reasonable accommodation by the employer is sufficient to meet its accommodation obligation.... Thus, where the employer has already reasonably accommodated the employee’s religious needs, the statutory inquiry is at an end.” Ansonia Bd. of Education v.

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Philbrook, 479 U.S. 60, 68, 107 S.Ct. 367, 372, 93 L.Ed.2d 305 (1986); see also Hudson v. Western Airlines, 851 F.2d 261 (9th Cir.1988).

Accommodation has been accomplished but has not been acknowledged. Ignoring what Townley has allowed, the court declares, ironically or paradoxically, “The transcendent principle in cases of this sort is accommodation.” Has accommodation ever been raised to such an eminence? Transcendent principles are those that rise above the here and now. Transcendent principles link human beings to shared goods of the spirit and their transtemporal destiny. Transcendent principles in the context of this case is the right of each person to worship God as his or her conscience determines.

That transcendent principle is at the center of the Religious Clauses embodied in the First Amendment to the Constitution. The First Amendment, guaranteeing the free exercise of religion to every person within the nation, is a guarantee that Townley Manufacturing Company rightly invokes. Nothing in the broad sweep of the amendment puts corporations outside its scope. Repeatedly and successfully, corporations have appealed to the protection the Religious Clauses afford or authorize. Amos, supra (1987); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952). Just as a corporation enjoys the right of free speech guaranteed by the First Amendment, Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939), so a corporation enjoys the right guaranteed by the First Amendment to exercise religion.

The First Amendment does not say that only one kind of corporation enjoys this right. The First Amendment does not say that only religious corporations or only not-for-profit corporations are protected. The First Amendment does not authorize Congress to pick and choose the persons or the entities or the organizational forms that are free to exercise their religion. All persons--and under our Constitution all corporations are persons--are free. A statute cannot subtract from their freedom.

If it were otherwise, we would be back to the bad old days when state governments insisted that religious organizations incorporate in accordance with state law if they wanted to enjoy the benefits made available by the state. E.g., Barnes v. First Parish of Falmouth, 6 Mass. 401 (1810). Barnes attempted to force state incorporation upon Baptists who believed that incorporation was unChristian surrender to the state. See 2 McLaughlin, New England Dissent 1630-1833 1088 (1971). Barnes was possible only in a jurisdiction that frankly recognized a church established by the state. The Barnes court could insist on the form prescribed by the state because the court could celebrate “this religion, as understood by Protestants ... [which] was by the people established as a fundamental and essential part of their constitution.” Barnes, supra, at 406. Such establishment, such forcing of a governmentally chosen form upon religious activity, is incompatible with the Religious Clauses.

True, Congress may create a bright line and exempt from regulation all of the nonprofit activity of religious corporations. Amos, supra. The reason is that regulation would chill religious organizations if they had to speculate which of their nonprofit activities a court would label religious. Id. at 2872-73 (Brennan, J., concurring). That a bright line may constitutionally be created does not mean that on a case-by-case basis

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other activities, asserted to be religious, may not be found to fall within the First Amendment’s protection.

Amos did not pretend to decide whether the business activity of a religious corporation should be exempted, see id. at 2875 (O’Connor, J., concurring); and we do not face here the question unresolved in Amos. But we meet a parallel question: what exemption from governmental interference is required by the First Amendment as to the religious activity of a business corporation?The First Amendment by its express terms is directed against Congress prohibiting the free exercise of religion. Remarkably and regrettably when Congress has found a national interest to be of sufficient importance to be incorporated into federal legislation and that legislation has conflicted with the free exercise of religion, the Supreme Court of the United States has uniformly found the national interest to outweigh the claims of conscience and permitted Congress to prohibit the free exercise of religion in conflict with the legislation. This bleak record is mitigated because the Court has sometimes reinterpreted a federal statute to accommodate the Free Exercise claim. E.g. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965); Girouard v. United States, 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed. 1084 (1946). But where the Free Exercise claim has been pressed and the federal statute not glossed, the result has not been good for Free Exercise. School boards, municipalities, states have been subjected to the standard set by the Religious Clauses. When Congress has legislated, the legislative objective has overborne the claims of conscience. The Amish have been forced to contribute to Social Security despite their contention that their religion prescribed other ways of caring for the community. United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). Conscientious objectors to war have been compelled to serve in the armed forces contrary to their most deeply held principles. Negre v. Larsen, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971). The property of the Mormon church has been confiscated by congressional command in order to force conformity contrary to the religious principles of the afflicted church. Late Corporation of the Church of Jesus Christ of Latter Day Saints v. United States, 136 U.S. 1, 10 S.Ct. 792, 34 L.Ed. 478 (1890). In all, in nineteen cases the court has upheld congressional legislation in the face of the Free Exercise Clause. The courts of appeal have followed suit. See Appendix to this dissent.

Secular men and women take secular values seriously. Men and women of the world believe that the world’s business is important. When Congress elevates this business to a national priority it has been all too easy for officers of the government and even judges to ignore the countervailing command of the Constitution. In the Supreme Court the Constitution has been no shield for the spirit when Congress has ordained that the spirit must yield to secular needs.

Despite these lessons of history it remains possible to say that the Religious Clauses are unimpaired in what they require of civilized government. The weighing of the claims of Congress is not to be carried out with a tilt in favor of Congress. The result should not be foreordained by Congress choosing a secular value as overriding. The Free Exercise Clause requires solicitude for the religious values that are invaded.

Insensitive to its entry on sacred ground, the EEOC in this case has proceeded as though it had but to invoke the congressional mandate and all opposition should cease. The EEOC has had success in eliminating racial bigotry. It has proceeded in this case as

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though the defendant was simply one more racist bigot. The agency has suffered from the scotopia of a bureaucracy. The agency must indeed vindicate the claims of conscience subjected to religious discrimination. The agency must do so with the utmost respect for the religious claims upon which its action intrudes.

Respect for the religious beliefs of others is particularly difficult when one does not share these beliefs. Judges are no more immune than congressmen from prejudices that are not only officious and overt but subtle and latent and incline one to take less than seriously notions of religious belief that depart markedly from one’s own or some assumed norm. The First Amendment is an effort, not entirely forlorn, to interpose a bulwark between the prejudices of any official, legislator or judge and the stirrings of the spirit.

The agency and the court appear to assume that there must be a sharp division between secular activity and religious activity. Such a sharp division finds nourishment in one of our cases. St. Elizabeth Community Hosp. v. NLRB, 708 F.2d 1436, 1441 (9th Cir.1983). But of course such a dichotomy is a species of theology. The theological position is that human beings should worship God on Sundays or some other chosen day and go about their business without reference to God the rest of the time. Such a split is attractive to some religious persons. It is repudiated by many, especially those who seek to integrate their lives and to integrate their activities. Among those who repudiate this theology is the Townley Manufacturing Company.

The undisputed facts are that Jake and Helen Townley made an agreement with God that their company would be “a faith-operated business whose primary purpose would be to share the Gospel of the Lord Jesus Christ and to remain completely dedicated to God’s service.” The integration of work and religious purpose that the Townleys and their company seek was captured centuries ago in exquisite devotional verse:

Who sweeps a room as for Thy cause

Makes that, and the action, fine.

George Herbert, “The Elixir,” The Writings of George Herbert, 185.

As part of the Townleys’ covenant with God they agreed “to acknowledge God’s blessing upon the business and his continued direction of the business and his use of the business.” The fundamental purpose of their company is “to stand as a testimony to God’s blessing to all persons who will operate their business according to Christian principles.” In furtherance of that purpose the company conducts the services of which Pelvas complains.

For an agency of the government, or Congress, or a court to say that the Townleys are mistaken in their beliefs or that the Townley Manufacturing Company cannot have the purpose ascribed to it and shall not carry out the program of devotion it has set up is to make a theological judgment--a theological judgment fairly characterized as reflecting either a secularism skeptical of God’s existence and power or a species of deism that radically isolates God from the world that believers believe God created and animates and directs. The First Amendment prohibits an agency of government, or Congress, or even a court, from imposing such a theological judgment to curb the free exercise of religion.

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DISCUSSION QUESTIONS: TOWNLEY59. Is Judge Noonan correct that Townley had already provided a reasonable accommodation? Why or why not?

60. Does the majority adequately deal with Townley’s claim regarding spiritual undue hardship?

61. The Supreme Court has squarely held that corporations enjoy Freedom of Speech. Should corporations also receive Free Exercise Protection? Assuming they do, were Townley’s Free Exercise rights violated?

KOLODZIEJ v. SMITH

412 Mass. 215 (1992)

O’CONNOR, J. At all relevant times, the defendant Warren Smith was the president and sole shareholder of the corporate defendant Electro-Term, Inc. The plaintiff asserts in her complaint that the defendants interfered with her rights of religious freedom guaranteed by the Federal and State Constitutions, entitling her to damages and other relief …. She seeks similar relief on the ground that the defendants made her retention of employment conditional on her forgoing the practice of her “creed or religion as required by that creed or religion” in violation of G.L. c.151B, Section 4 (1A) (1990 ed.). Finally, the plaintiff’s complaint alleges that she is entitled to damages because Electro-Term, Inc., terminated her at-will employment in violation of public policy, that is, Electro-Term, Inc., fired or demoted her because she refused to attend a religion seminar. …

The case was tried to a jury. At the close of the plaintiff’s evidence, the defendants moved for directed verdicts. … [T]he judge … “was of the strong belief that the plaintiff clearly had failed to make out a case which warranted submission to the jury,” and therefore he allowed the motion for directed verdicts in its entirety. The plaintiff appealed to the Appeals Court and we transferred the case here on our own motion. We affirm the judgment entered in the Superior Court.

In reviewing a directed verdict, we summarize the evidence in the light most favorable to the party having the burden of proof, who ordinarily, as here, is the plaintiff. The jury would have been warranted in finding the following facts. Electro-Term, Inc., manufactures and sells electrical connectors. Begun in 1976 by the defendant Smith, the company considers itself a “Christian company.” It espouses Christian principles and offers a weekly Bible reading session to employees at which attendance is voluntary. In 1988, when the plaintiff’s legal action was commenced, Electro-Term, Inc., employed approximately forty-one people. The plaintiff, a Roman Catholic, was initially hired as a temporary employee by the company in August, 1987. In October, 1987, she was hired permanently and promoted to the position of controller, a management position. At all times she was an employee at will.

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Smith considered it very beneficial for the company’s employees annually to attend a week-long seminar put on by the Institute in Basic Life Principles entitled “Institute in Basic Youth Conflicts.” Attendance was mandatory for management level employees. The seminar offered instruction in several areas including the resolution of conflicts in interpersonal relationships, dealing with anger, and responding to authority. The seminar was nondenominational, but it used references to Scriptural texts to reinforce and illustrate its teachings. On the first night, the 1988 seminar, which was held in Symphony Hall in Springfield, focused on the family and its relationship to “the church.” A workbook was distributed that referred to Biblical passages. The workbook was prefaced with an extensive list of passages, separated by topic headings, which those in attendance were encouraged to read at home. A representative sampling of topic headings is as follows: “Wisdom and Understanding,” “Discerning Levels of Conflict,” “Responding to Enemies,” “Basic Steps of Maturity,” “Acceptance of God’s Design,” “Abnormal Social Developments,” “Discerning God’s Guidance,” “Basic Structures of Authority -- Family, Government, Church,” “Reverence,” “Gratefulness,” “Forgiveness,” “Basic Steps to Walk in God’s Spirit,” “Consequences of Sensual Material,” and “Consequences of Alcohol.”

On the second night of the 1988 seminar, a videotape presentation centered on a woman’s proper place in the family. The plaintiff testified, “This whole thing was done by video cassette, a screen up on the auditorium stage. There was no person giving the seminar. You watched the video on a screen, and there was this great big triangle and there was a man up at the top and the wife underneath him and the family underneath that, and I kind of looked at that situation where the woman was -- I was told the woman was under the man’s influence in the family, that she should follow everything that he says, that she should not concern herself with financial matters in the family, that was his area, that she made the home a pleasant place to be; that she made the home, that he financed the home, in essence.” Scriptural passages were offered in support of this concept and the workbook contained a diagram showing a man in a superior position to the woman in the family. The plaintiff further testified: “They were telling me that I was a second class citizen -- my husband’s first class, I’m second class -- and yet they are using the Bible to tell me that this is true, which I didn’t believe was true, they are telling me that I shouldn’t know anything about financial matters, and here I am supposedly the controller of Electro-Term and the president is supposed to be digesting what I tell him. It just -- the whole thing bothered me terribly.”

On Wednesday, the plaintiff told Smith that she would not attend the rest of the seminar. On the following day, she explained to Smith that it was personally offensive, “religious,” and not work-related. He told her that, if she did not attend the seminar, she could no longer be part of management. He offered her a position as bookkeeper. The plaintiff refused either to attend the seminar or to accept what she considered to be a demotion to the nonmanagement position of bookkeeper. The plaintiff left the company’s employ. For our purposes it makes no difference whether we consider the plaintiff as having been demoted or discharged for her refusal to attend the seminar. In either event, she was penalized.

… The plaintiff contends that the defendants interfered with her rights of religious freedom under the First Amendment to the United States Constitution and under art. 2 of

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the Declaration of Rights of the Massachusetts Constitution. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” Article 2 provides in relevant part, “[N]o subject shall be hurt, molested, or restrained, in his person, liberty, or estate, for worshipping GOD in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments; provided he doth not disturb the public peace, or obstruct others in their religious worship.”

The question we must answer is whether the evidence set forth above is sufficient to warrant a finding that either defendant or both defendants interfered with the plaintiff’s Federal or State constitutional right to believe and profess the religious doctrine of her choice. This right includes the right to assemble, or abstain from assembling, with others to engage in religious activity, Employment Div., Dep’t of Human Resources of Or. v. Smith, 494 U.S. 872, 877-878 (1990), and it includes the right to refrain from professing a particular religious belief. Torcaso v. Watkins, 367 U.S. 488, 495 (1961). “Only beliefs rooted in religion are protected . . . .” Frazee v. Illinois Dep’t of Employment Sec., 489 U.S. 829, 833 (1989), quoting Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 713 (1981). “Purely secular views do not suffice.” Frazee, supra. However, in order for a belief to be a protected religious belief, it is not necessary that it be shared by an organized sect or church. Id.

The plaintiff argues that the principle taught at the seminar, that Scripture says that husbands have authority superior to that of their wives within the family context, is a belief rooted in religion, as is her contrary belief. Frequently, as here, making a proper distinction between religious and secular beliefs is difficult. Nevertheless, we accept the plaintiff’s contention that these two contrary beliefs are religious beliefs. It follows that the plaintiff would have had a right to abstain from attendance at the seminar if, as a result of the advocacy of that belief, the seminar constituted a religious activity. We hold, however, that it did not.

We have no doubt that an employer’s requirement of an employee’s attendance at devotional services at which prayer is offered would constitute unlawful compulsion to participate in religious activity. This would be true regardless of whether the employee was told she could ignore what was going on. Young v. Southwestern Sav. & Loan Ass’n, 509 F.2d 140 (5th Cir. 1975), and EEOC v. Townley Eng’g & Mfg. Co., 859 F.2d 610 (9th Cir. 1988), cited by the plaintiff, stand for that proposition. However, the seminar at issue here was in no sense a devotional service despite the fact that it promoted Scriptural passages as support for the lessons it sought to promote. No case has come to our attention in which a court has held on facts comparable to the facts here that an employer has interfered with an employee’s religious freedom, and we are not willing to go that far. Surely, there is no evidence in this case that would warrant a finding that the defendants have forced the plaintiff to alter her religious convictions or her profession of belief, or to give the appearance of supporting a particular tenet of religion. We conclude that the evidence was insufficient as a matter of law to warrant recovery…, and that the judge correctly directed verdicts for the defendants on those claims.

Next, the plaintiff argues that compulsory attendance at the seminar violated G.L. c.151B, Section 4 (1A), which makes it an “unlawful discriminatory practice for an employer to impose upon any individual as a condition of obtaining or retaining

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employment any terms or conditions, compliance with which would require such individual to violate, or forego the practice of, his creed or religion as required by that creed or religion . . . . The employee shall have the burden of proof as to the required practice of his creed or religion.” In Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761 , 771 (1986), we observed that this “statute does not deal with the full panoply of religious beliefs, practices, preferences, and ideals,” but focuses instead on required religious practices. The plaintiff produced no evidence that the defendants’ condition for her continuing as controller, attendance at the seminar, required her to miss any religious service or to compromise her faith. There was no evidence that Roman Catholic dogma forbade her attendance at the seminar. The judge correctly allowed the motion for directed verdicts on the G.L. c.151B, Section 4 (1A), claim.

We turn to the plaintiff’s claim that she was discharged or demoted in violation of public policy. As an employee at will the plaintiff’s employment was subject to termination or modification at any time for any reason or no reason at all. Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145 , 150 (1989). We have allowed exceptions to this general at-will employment rule in cases where employees have been discharged for doing what the law requires, see Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988), for performing important public deeds such as cooperating with law enforcement officials, see Flesner v. Technical Communications Corp., 410 Mass. 805, 811 (1991), and for refusing to commit unlawful acts, see DeRose v. Putnam Management Co., 398 Mass. 205, 209-210 (1986). Of course, it is a public policy of this State to allow free exercise of religion. The plaintiff’s claim fails, however, because there was no evidence that attending the seminar inhibited her in the exercise of her religion, or that Electro-Term, Inc., fired her because of her religion. A verdict for Electro-Term, Inc., was properly directed. …

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DISCUSSION QUESTIONS: KOLODZIEJ

62. Could the slides that upset the plaintiff have given rise to a cause of action for sex discrimination?

63. Is Kolodziej consistent with Townley?

Reed v. The Great Lakes Companies

330 F.3d 931 (7th Cir. 2003)

POSNER, Circuit Judge. Melvin Reed, the plaintiff in this Title VII religious-discrimination suit, appeals from the grant of summary judgment to his former employer, Great Lakes….

Construed as favorably to Reed as the record permits, the facts of the case are as follows. He was hired to be the executive housekeeper of a newly opened Holiday Inn that Great Lakes operates in Milwaukee. One of his duties was to see to it that a copy of the Bible, supplied free of charge to the hotel by the Gideons, was placed in every room. It is customary for representatives of management to meet with the Gideons when they deliver Bibles to a newly opened hotel. Reed had been working for Great Lakes for less than a month when the Gideons showed up to deliver the Bibles. A few days before their scheduled arrival, the manager of the Holiday Inn had told Reed in a joking manner that they were going to “pray with the Gideons,” which Reed understood to mean that, given his responsibility for the distribution of the Bibles to the rooms, he was to accompany the manager to the meeting at which they would receive the Bibles from the Gideons. Reed did not object to attending the meeting. But, to the manager’s surprise, at the meeting the Gideons, besides delivering Bibles, did some Bible reading and some praying. Reed was offended by the religious character of the meeting and left in the middle, to the manager’s chagrin. Later in the day, the manager ran into Reed and told him: “Don’t do that again, you embarrassed me.” Reed riposted: “You can’t compel me to a religious event,” to which the manager replied that Reed would do what he was told to do. Reed responded, “Oh, hell no, you won’t, not when it comes to my spirituality,” whereupon the manager fired him for insubordination.

Oddly, Reed at his deposition refused to indicate what if any religious affiliation or beliefs (or nonbeliefs) he has; refused even to deny that he might be a Gideon! His position was that Title VII forbids an employer to require an employee to attend a religious meeting, period.

Title VII does forbid an employer, unless it is a religious organization, 42 U.S.C. § 2000e-1; Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 329-30, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987), which Great Lakes is not, to discriminate against an employee on the basis of the employee’s religion. 42 U.S.C. § 2000e-2(a)(1). And for these purposes, as assumed by the parties, as strongly intimated in EEOC v. Townley Engineering & Mfg. Co., 859 F.2d 610, 613-14 n. 5 (9th Cir.1988), and Young v. Southwestern Savings & Loan Ass’n, 509 F.2d 140, 142 (5th Cir.1975), and as supported by analogy to cases under the free-exercise clause of the First Amendment, County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 589-90, 109 S.Ct. 3086, 106

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L.Ed.2d 472 (1989); Wallace v. Jaffree, 472 U.S. 38, 52-53, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985); Books v. City of Elkhart, 235 F.3d 292, 307 (7th Cir.2000) Warner v. Orange County Dep’t of Probation, 173 F.3d 120, 120-22 (2d Cir.1999)—cases which hold that religious freedom includes the freedom to reject religion—”religion” includes antipathy to religion. And so an atheist (which Reed may or may not be) cannot be fired because his employer dislikes atheists. If we think of religion as taking a position on divinity, then atheism is indeed a form of religion.

But there is no indication that Reed was fired because of his religious beliefs, identity, or observances or because of his aversion to religion, to Christianity, or to the Gideons, whatever the case may be (remember that we don’t know anything about his religion or lack of religion). Great Lakes accepts Bibles from the Gideons because the Bibles are free, not because any of Great Lakes’ owners or managers, including the manager of the Holiday Inn who fired Reed, is a Gideon. So far as appears, none is. The manager’s joking reference to “pray[ing] with the Gideons” makes it pretty clear that he is not one of them; anyway there is no contention that he is. For that matter, there is no evidence that he expected to encounter prayers and Bible reading at the meeting with them. At previous such meetings the Gideons had handed over the Bibles and the manager had thanked them, and that was that. The religious service was a surprise. It is apparent that the manager fired Reed because Reed’s sudden departure from the meeting was embarrassing to the manager, who would be in trouble with his superiors if the Gideons became huffy and cut off the supply of free Bibles to Great Lakes hotels, and also because Reed’s refusal to see the manager’s point of view indicated that he was unlikely to be a cooperative employee.

The manager must have been indifferent to Reed’s religious views, because Reed never expressed them to the manager; to this day we do not know what his religion is, as he refused to say at his deposition. It is difficult to see how an employer can be charged with discrimination on the basis of an employee’s religion when he doesn’t know the employee’s religion (or lack thereof, which, as we have noted, is in the eyes of the law a form of religion), O’Connor v. Northshore Int’l Ins. Services, 61 Fed.Appx. 722 (1st Cir.2003) (per curiam); Lubetsky v. Applied Card Systems, Inc., 296 F.3d 1301, 1305-06 (11th Cir.2002), though the employee can survive summary judgment if, while declining to specify his religious beliefs, he attests that they differ from his employer’s and that that is why he was fired. Venters v. City of Delphi, 123 F.3d 956, 972 (7th Cir.1997); Shapolia v. Los Alamos Nat’l Laboratory, 992 F.2d 1033, 1037 (10th Cir.1993).

Reed has utterly failed to make a prima facie case of intentional religious discrimination. But he has another string to his bow. Besides forbidding intentional discrimination, Title VII requires an employer to try to accommodate the religious needs of its employees, that is, to try to adjust the requirements of the job so that the employee can remain employed without giving up the practice of his religion, provided the adjustment would not work an undue hardship on the employer. 42 U.S.C. § 2000e(j); Ansonia Board of Education v. Philbrook, 479 U.S. 60, 70, 107 S.Ct. 367, 93 L.Ed.2d 305 (1986); Anderson v. U.S.F. Logistics (IMC), Inc., 274 F.3d 470, 475 (7th Cir.2001); Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir.2002); Shelton v. University of Medicine & Dentistry, 223 F.3d 220, 224 (3d Cir.2000). And again for these purposes hostility to religion counts as a form of religion. So if attending a meeting at which Gideons might

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pray or read from the Bible would offend Reed’s religious or antireligious sensibilities, he might be entitled to an accommodation.

We say “might be” rather than “would be” for two reasons. First, the duty to accommodate is not absolute; the cost to the employer must be considered. Ansonia Board of Education v. Philbrook, supra, 479 U.S. at 70, 107 S.Ct. 367; Rodriguez v. City of Chicago, 156 F.3d 771 (7th Cir.1998) (majority and concurring opinions); Ryan v. United States Dep’t of Justice, 950 F.2d 458, 461-62 (7th Cir.1991); Daniels v. City of Arlington, 246 F.3d 500, 506 (5th Cir.2001); Shelton v. University of Medicine & Dentistry, supra, 223 F.3d at 222-23, 228. Second, an employee is not permitted to redefine a purely personal preference or aversion as a religious belief. EEOC v. Union Independiente de la Autoridad de Acueductos Y Alcantarillados de Puerto Rico, 279 F.3d 49, 56 (1st Cir.2002); Seshadri v. Kasraian, 130 F.3d 798, 800-01 (7th Cir.1997) (belief in the deeply spiritual effects of eating Kozy Kitten People/Cat Food); Vetter v. Farmland Industries, Inc., 120 F.3d 749, 752-53 (8th Cir.1997). Otherwise he could announce without warning that white walls or venetian blinds offended his “spirituality,” and the employer would have to scramble to see whether it was feasible to accommodate him by repainting the walls or substituting curtains for venetian blinds. This case is not so extreme, because compelled attendance at sectarian religious services is the sort of thing that is likely to offend someone who does not belong to the sect in question, though we repeat that for all we know Reed is a Gideon and his claim for accommodation therefore completely spurious.

But putting that possibility to one side and assuming that it would have been no sort of hardship for Great Lakes to have excused Reed from attendance at meetings with the Gideons, who are hardly likely to ask, “Why isn’t the executive housekeeper here?” we think the district court was right to grant summary judgment for Great Lakes with respect to this claim as well as the disparate-treatment claim. There is a line, indistinct but important, between an employee who seeks an accommodation to his religious faith and an employee who asserts as Reed did an unqualified right to disobey orders that he deems inconsistent with his faith though he refuses to indicate at what points that faith intersects the requirements of his job. Today he storms out of a meeting with the Gideons; tomorrow he may refuse to place their Bibles in the rooms; the day after that he may announce that he will not come to work on the day when the Gideons visit. Reed failed to give any indication of what future occurrences at the Holiday Inn would impel him to make a scene embarrassing to the manager and potentially injurious to the employer.

Title VII imposes a duty on the employer but also a reciprocal duty on the employee to give fair warning of the employment practices that will interfere with his religion and that he therefore wants waived or adjusted. EEOC v. United Parcel Service, 94 F.3d 314, 317 (7th Cir.1996); Redmond v. GAF Corp., 574 F.2d 897, 901 (7th Cir.1978); Cosme v. Henderson, supra, 287 F.3d at 158 (2d Cir.2002); Chalmers v. Tulon Co., 101 F.3d 1012, 1019-21 (4th Cir.1996); Brown v. Polk County, 61 F.3d 650, 654 (8th Cir.1995). A person’s religion is not like his sex or race—something obvious at a glance. Even if he wears a religious symbol, such as a cross or a yarmulka, this may not pinpoint his particular beliefs and observances; and anyway employers are not charged with detailed knowledge of the beliefs and observances associated with particular sects.

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Suppose the employee is an Orthodox Jew and believes that it is deeply sinful to work past sundown on Friday. He does not tell his employer, the owner of a hardware store that is open from 9 a.m. to 6 p.m. on Fridays, who leaves the employee in sole charge of the store one Friday afternoon in mid-winter, and at 4 p.m. the employee leaves the store. The employer could fire him without being thought guilty of failing to accommodate his religious needs. This case is similar. …

DISCUSSION QUESTIONS: REED

64. What is legal signif of claimant’s refusal to reveal his religion?

65. Judge Posner says, “The manager must have been indifferent to Reed’s religious views, because Reed never expressed them to the manager; to this day we do not know what his religion is, as he refused to say at his deposition. It is difficult to see how an employer can be charged with discrimination on the basis of an employee’s religion when he doesn’t know the employee’s religion.” Is this correct?

66. Is Reed consistent with Townley?

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