County Clerk’s Office May Have Duty to Accommodate Employee With Religious Objections to Processing Same-Sex Domestic Partnerships

So holds Slater v. Douglas County (D. Or. Sept. 24, 2010) (just released on Westlaw today). For more on the general structure of employers’ duty to accommodate religious objectors (under Title VII of the Civil Rights Act of 1964, as amended in 1972), see this post. Here’s a longish excerpt from the Slater decision, applying the duty to accommodate to the clerk’s specific religious objections:

Plaintiff is a former ten-year employee of the County Clerk’s Office of defendant Douglas County …. In December 2007, she asked to be excused from doing any work related to domestic partnership registrations because doing such work would be contrary to her religious belief that homosexuality is a sin. The County offered to help her find another position outside the Clerk’s Office, but otherwise denied her request on the basis that such would have caused an undue hardship in the operation of the Clerk’s Office. The County terminated plaintiff’s employment February 6, 2008, when she confirmed that she would not perform work related to domestic partnership registrations….

Between the time the domestic partnership law went into effect [February 4, 2008] and December 31, 2009, there were thirty-seven applications for domestic partnership registrations in Douglas County. Twenty-nine were processed in 2008, and eight in 2009. Of the five employees remaining in the Clerk’s Office after plaintiff’s termination, two processed twenty-six of the registrations during the aforementioned two year period, and the other three registered the remaining eleven. Each registration involves approximately ten minutes of clerical time….

[Plaintiff sued claiming that the County had a statutory duty to accommodate her religious beliefs. -EV] The County contends that it is entitled to judgment as a matter of law because it made an effort to accommodate plaintiff by offering to transfer her out of the Clerk’s Office into another County position if an opening arose and for the alternative reason that accommodating her request to be relieved of registering domestic partnerships would have caused undue hardship in the operation of the Clerk’s Office….

To establish a prima facie case of [failure to accommodate under] Title VII, the plaintiff must prove the following:

1. She had a bona fide religious belief, the practice of which conflicts with an employment duty;

2. She informed her employer of the belief and conflict; and

3. The employer discharged her because ofher inability to fulfill the job requirement….

The key issues in the case are whether the County made reasonable efforts to accommodate the plaintiff’s religious beliefs or whether no reasonable accommodation was possible without creating an undue burden on the County. …

Under the circumstances of this case, I am unable to find that a general offer by the County to help plaintiff transfer to another position if one became available constituted a good faith effort to accommodate her in her religious beliefs…. Here, no positions were available in the brief period between when Slater requested an accommodation and when she was fired. After she was terminated, the County rejected her application for re-employment. Thus, I am unable to conclude that a relatively vague promise to assist plaintiff to transfer if a position became available during a very short window of time constitutes reasonable accommodation. Undue Hardship

The County, without exploring any options to accommodate Ms. Slater other than notifying her of vacancies that might become available in other departments, determined that all staff in the Clerk’s Office must be available to process domestic partnerships and that anything less would constitute an undue hardship upon the staffing and effective operations of the Office.

The “undue hardship” exception to Title VII has been explained as follows: … “[U]ndue hardship cannot be supported by merely conceivable or hypothetical hardships …. The magnitude as well as the fact of hardship must be determined by ‘actual imposition on co-workers or disruption of the work routine.’”

Here, no inquiries were made to ascertain the details of plaintiff’s accommodation proposal. For example, was Slater willing to take on additional registration duties in marriage licensing in exchange for being relieved of domestic partnership duty. No inquiry was made of Slater’s colleagues to ascertain whether they were willing to take up the slack of any accommodation and, no inquiry was made of whether other counties had received accommodation requests for similar reasons and, if so, how they responded. Instead, the County here insisted that all staff must be willing to register domestic partnerships or be terminated for failing to perform a duty of the job. The County’s position all but ignores the requirement that there be a case-by-case assessment of the accommodation requested and the hardship presented. For example, in Noesen v. Medical Staffing Networks, 232 Fed. Appx. 581 (7th Cir. 2007), a pharmacist who refused on religious grounds to fill prescriptions for birth control was offered the accommodation of being relieved of the obligation to fill birth control prescriptions, taking orders for birth control, and performing checks on birth control orders. His refusal to forward calls from customers seeking birth control prescriptions to other pharmacists, however, was deemed unreasonable and thus an undue hardship on the employer. Here, as noted, the County engaged in no interactive process to determine whether Slater’s duty to register domestic partnerships could be effectively handled by other clerks at de minimis cost and inconvenience to the public. See Brady v. Dean, 173 Vt. 542, 547 (2001) (noting that Vermont’s civil union law, which granted same-sex couples civil union licenses, did not burden religious beliefs because the civil union law’s provision allowing assistant town clerks to register civil unions offered an “accommodation” for town clerks with religious reservations about issuing a civil union). Certainly the track record of domestic partnership registrations in the aftermath of Slater’s termination supports the proposition that the County would not have suffered an undue hardship Slater was never replaced, and two of her five colleagues processed twenty-six of thirty-seven registrations with the other three dealing with the remaining eleven. And, unlike Noesen, there is nothing in the record to indicate that Slater was unwilling to refer domestic partnership registrants to others in her department. To the contrary, in her declaration plaintiff states that she would have been be willing to refer such registrants, but because of the lack of any interactive process, was never asked.

The Clerk’s position that all employees must be willing to process domestic partnership registrations because otherwise co-workers would be burdened when absorbing the additional work is somewhat belied by subsequent events here: as it turned out, 40% of staff processed 70% of the registrations after Slater’s departure. The reasons are unknown, but the specific work at issue here was not equally divided. Furthermore, the Ninth Circuit has explicitly held that what constitutes undue hardship must be determined within the factual context of each case and has observed that such must involve more than a de minimis cost to the employer and/or “a significant discriminatory impact” on co-workers. Moreover, as previously noted, an undue hardship cannot be supported by merely conceivable or hypothetical hardship.

This is not a case where the requested accommodation would expose co-workers to heightened exposure to hazardous duty. Nor is it a case involving emergency responders such as police officers charged with protecting all members of the public. See Endes v. Indiana State Police, 349 F.3d 922 (7th Cir. 2003). As important as the work is of a clerk’s office, it is not hazardous nor is it emergency response/law enforcement work. Thus, I find those cases distinguishable. If anything, I find Noesen more analogous, and I note that the employer there did not rest on a “one-size-fits-all” approach but actively engaged in a good faith effort to accommodate the religious beliefs of one of its pharmacists. That did not happen here.

Next, I address the County’s position, as articulated in Ms. Nielsen’s December 14, 2007 memo to Slater, that accommodating her request would violate the First Amendment in that such accommodation could be construed as supporting one religious belief over another. The County cites to no case law in support of this contention. A public sector employer does not unconstitutionally “support” an employee’s religious beliefs by granting an accommodation to that employee. The Constitution does not mandate that individuals surrender their sincerely held religious beliefs as a condition of public sector employment. Thus the State does not stumble over the First Amendment if it accommodates a Seventh Day Adventist by not scheduling him to work between sundown Friday and sundown Saturday. Common sense tells us that this would be the case even in the absence of legislation such as Title VII, but certainly so in view of the requirements of title VII and its Oregon state law counterpart.

Moreover, the County is not choosing between Slater’s religious beliefs and the beliefs of the domestic partners. For one thing, the County doesn’t even know what the religious beliefs are of the latter group (although it is a fair inference that they don’t share plaintiff’s beliefs). But, more importantly, a domestic partnership registrant has no cognizable right to insist that a specific clerical employee with religious-based objections process the registration as opposed to another employee (having no such objections). So long as the registration is processed in a timely fashion, the registrants have suffered no injury. There is no reason to even inform them of Ms. Slater’s religious views or the County’s accommodation of those beliefs.

Finally, the County’s position that any accommodation that relieves a clerk from any clerical duty constitutes an undue hardship brings to mind a potential scenario. Suppose a deputy clerk has objections on religious grounds to capital punishment and thus asks to be relieved of any duty to file a judgment in a capital case resulting in a death sentence. Suppose further that such cases are relatively rare and that none of the other clerks have such reservations and would be willing to process such judgments. Would the County insist that the clerk with the religious objections agree, as a condition of continued employment, to process a capital punishment judgment notwithstanding the availability of other clerks with no such objections? Would an accommodation to the clerk with religious objections constitute an undue hardship to the County? Does the analysis change with the action that is the subject of the objection, or is anything less than a commitment by each clerk to fulfill every duty of the Clerk’s Office an undue hardship to the County no matter how easy it would be to fashion an accommodation?

Because I cannot tell from the record before me whether an accommodation to Ms. Slater would have caused an undue hardship to the County, the County’s motion for summary judgment is denied and the County will be required to present their evidence on that issue to a jury….