Wal-Mart Beats Druggist's Discrimination Claim

While serving as a temporary pharmacist at the Wal-Mart pharmacy in Onalaska, Wis., in July 2005, pharmacist Neil Noesen denied service to customers seeking contraceptives and then refused to refer them to other staff members. A devout Roman Catholic, Noesen said Wal-Mart should either shield him from interaction with patients seeking contraceptives or allow him to express his views against the use of birth control and refuse service.

Wal-Mart tried to meet Noesen half way--excusing him from counter duties and allowing him to divert birth-control prescription requests to other staff members. But Noesen rejected those accommodations and demanded to be shielded from all customer interaction. Wal-Mart fired him.

Noesen sued, alleging Wal-Mart violated federal employment discrimination laws by refusing to accommodate his religious convictions. A Wisconsin district court dismissed Noesen's complaints in June 2006, ruling Wal-Mart's accommodations were reasonable. In May 2007 the 7th Circuit Court of Appeals affirmed the lower court's grant of summary judgment.

"This is an extreme case in terms of the plaintiff's demands," says Michael Jordan, professor of law at William Mitchell College of Law in St. Paul, Minn. "That's probably why the court disposed of the case on the facts. But it's also a clear example of what worries courts about shifting burdens in the name of religious practices."

With increasing religious diversity in American culture, and issues of faith and conscience routinely becoming front-page news, employers can expect more cases like Noesen's in the future.

"This is a hot topic," Jordan says. "And it's going to get hotter."

Religion Rules

In Title VII of the Civil Rights Act, Congress prohibited discrimination against employees on the basis of religion and directed employers to "reasonably accommodate" the religious observances and practices of employees. But Congress let employers decide what was reasonable, saying accommodations shouldn't impose "undue hardship" on their ability to conduct business.

Workers and employers don't always agree about reasonable accommodations, however. And when disagreements turn into lawsuits, courts are expected to strike a balance between the requirements of Title VII and the constitutional principle of church-state separation.

"Employers have to make a reasonable accommodation to eliminate conflicts between work requirements and religion," Jordan says. "But Congress can't impose costly or oppressive requirements on an employer to support someone's practice of faith. That would violate the First Amendment."

In Noesen v. Medical Staffing Network et al., the plaintiff argued Wal-Mart failed to reasonably accommodate his religious practices because it required him to interact with customers seeking contraceptives, which he said went against his religious beliefs.

Wal-Mart knew about those beliefs before it hired Noesen. Employment agency Medical Staffing Network informed Wal-Mart about Noesen's disciplinary record, which included an April 2005 reprimand from the State of Wisconsin Pharmacy Examining Board. The reprimand involved a 2002 incident in which Noesen refused to process a K-Mart customer's contraceptive prescription or refer it to another pharmacy, causing her to miss a dose of the daily pill.

As a result of the reprimand, Noesen's license was restricted, requiring him to notify any prospective employer about how his religious practices would limit his activities and to specify steps he'd take to ensure those practices wouldn't impede patients' access to prescribed medication.

Before starting work, Noesen wrote a letter to his Wal-Mart supervisor saying he would "decline to perform any activity related to the provision of contraceptive articles." Wal-Mart agreed to accommodate Noesen by separating birth-control orders from other prescriptions and excusing Noesen from filling contraceptive prescriptions.

When he began the job, however, Noesen demanded more accommodations. He refused to transfer phone calls from patients seeking contraception, leaving them on hold indefinitely. And he walked away from birth-control patients at the pharmacy counter without notifying other staff that customers needed assistance.

Noesen's supervisor at Wal-Mart offered to modify his work requirements, suggesting he could serve only male patients and women who were not of childbearing age. Noesen rejected this arrangement, saying the only reasonable accommodation would excuse him from all contact with customers. The supervisor offered to excuse Noesen from counter duties, but still required him to answer telephones and transfer calls about contraceptives to another staff member. Noesen refused to accept the modified conditions, and on his fifth day at the pharmacy Wal-Mart fired him.

Reasonable Accommodation

Noesen's appeal to the 7th Circuit focused on whether Wal-Mart violated Title VII by refusing Noesen's proposed accommodation. While the court acknowledged Wal-Mart's proposed solution did not eliminate the conflict between Noesen's beliefs and the duties of a pharmacist, it said Noesen was not entitled to accommodation that would impose an undue hardship on Wal-Mart. And the court said forcing Wal-Mart to accept Noesen's demands would represent an undue hardship as a matter of law because they would shift a disproportionate share of his workload onto other employees.

Citing 5th and 7th Circuit precedents in Bruff v. North Mississippi Health Services Inc. and Endres v. Indiana State Police, the court said, "Wal-Mart was under no obligation to rearrange staffing and incur ?? 1/2 costs to accommodate an inflexible employee."

The decision in Noesen serves as an example of how an employer can minimize its exposure to Title VII religious-discrimination claims.

Specifically, Wal-Mart made a clear effort to understand the employee's concerns, negotiate an acceptable accommodation and document each step in

the dispute.

"Listen to what the employee is saying and be as flexible as possible," Jordan says. "Wal-Mart bent over backwards. You don't have to be a contortionist, but Wal-Mart's approach is a good model for complying with the law and preventing employees from hating you."

While such efforts won't defuse all conflicts--particularly those involving inflexible employees--a willingness to work toward reasonable solutions can mean the difference between amicable agreements and damaging court battles. And when such conflicts turn into Title VII lawsuits, the good-faith approach will help create a solid defense in court.


Michael T. Burr

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