3rd Circuit

Judith Smell may have favored five-pointed jewelry and kept a fountain of water flowing over stones on her desk. But she was also, she claims, very good at her job. So when Lehigh Carbon Community College failed to hire her for a permanent position when she applied this past August, she filed suit Dec. 17, 2004, claiming the college was discriminating against her because of her religion. Smell is a Wicca, once more commonly known as a witch, a faith is based in nature and tuned to the four elements: wind, air, earth and water.

Smell's suit in the Eastern District of Pennsylvania comes at the same time the U.S. Supreme Court is scheduled to hear a case involving Wicca for the first time.

While Wicca may be unconventional, employers will have to learn to accept and cope with it and other unusual beliefs as the country becomes more diverse according to John W. Whitehead, president of The Rutherford Institute, a civil liberties group based in Charlottesville, Va.

"Employers have to realize things are changing," Whitehead says. "The country is becoming much more religious, and not just in terms of Christianity."

Highly Recommended

Lehigh Carbon hired Smell as a site supervisor to coordinate the use of facilities on several campuses on a temporary basis in 2003 to fill in for an employee who was on disability leave. Smell claims more than a dozen faculty members and other coworkers recommended her for the position permanently when the person she was filling in for didn't return to work.

Despite her experience and recommendations, however, the college decided to hire someone else for the position. Smell claims that decision was based solely, and specifically, on her religion.

At the office, Smell wore a pentacle necklace, a five-pointed star inside a circle that is a common symbol for Wiccans. And when students asked about the fountain on her desk, she openly discussed her religion. She also would give them stones from the fountain, which, for Wiccans, represent powerful natural forces.

Lehigh Carbon didn't return requests for comment. Smell's attorney, Richard J. Orloski of the Law Offices of Orloski, Hinga, Pandaleon & Orloski in Pennsylvania, declined to comment on the case, except to say that most of these types of cases don't make it to trial.

But Smell could have a good case if she can prove the college refused to hire her solely because she is a Wicca, according to Frank Flinn, an adjunct professor of religious studies at Washington University in St. Louis.

"Wicca is definitely a religion," says Flinn, who has served as an expert witness in religious discrimination cases.

From a legal standpoint, a religion must have three characteristics--a codified belief system, religious practices and ceremonies and an identifiable community, Flinn says. Wicca has all of those. "It's not mainline, but yesterday's cult is tomorrow's religion," he says.

According to The American Council of Witches, Wiccans practice rites to attune themselves to the natural rhythm of life forces, guided by the phases of the moon. They recognize an outer, physical world and an inner, spiritual world. But they don't believe in "the devil."

Despite old stereotypes, Wiccans don't run around casting hexes and practicing black magic, Flinn says. "Present-day Wiccans are very positive people," he says.

High Court Decides

Soon, the U.S. Supreme Court will decide if it agrees with Flinn's assessment on the validity of Wicca as a religion.

In Cutter v. Wilkinson, which the Supreme Court is scheduled to hear March 21, several Ohio prisoners are suing the Ohio Department of Rehabilitations and Corrections, claiming their rights are being violated under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

The four plaintiffs in the three consolidated cases all practice unconventional religions--one is a Satanist, another worships the Viking god Thor, one believes in racial segregation and one is a Wiccan.

All of them claim that Ohio prisons are denying them access to religious literature and that the RLUIPA violates the 10th and 11th Amendments because it provides protection for Jewish, Muslim and Christian inmates, but not for practices outside those faiths.

Although the Supreme Court has yet to rule on Wicca specifically, in Church of Lukumi Babalu Aye v. City of Hialeah, it ruled in 1993 that Santeria is a religion deserving First Amendment protection. In that case, the city of Hialeah, Fla., banned the possession of animals for sacrifice, specifically in response to the Santeria practices. The Supreme Court ruled that the ordinance was a violation of the free exercise clause of the First Amendment.

While more unconventional religions such as Wicca and Santeria grab headlines, employers should be prepared to deal with more frequent religious discrimination concerns with regard to traditional religions as well, Whitehead predicts.

The burgeoning of Christian fundamentalism has been well documented, but other religious groups are growing in number and strength, too. Those include an increasing number of Muslims in the United States, who are willing to pay more than just lip service to their religious convictions.

"A lot of people feel they can't shed their religion at the door," he says. "And they are in a fighting mood, so they could sue."

In many cases, employers just need to be reasonable and flexible about their standards governing religious symbols.

He points to a situation last year in Oklahoma, where a local school district banned a Muslim girl from wearing her religious head covering under a rule originally designed to discourage gang clothing.

"There are all kinds of answers to these situations," he says. "But employers have to go beyond the letter of the law."

Staff Writer

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