Freedom of Religion

Court Rules Mostly for Catholic Nurse Who Objected to Newly Imposed Birth-Control and Abortion-Referral Duties

The Illinois Appellate Court's decision interprets the Illinois version of the RFRA, and the separate Illinois Health Care Right of Conscience Act (which bans all discrimination "because of [a] person's conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience").

|The Volokh Conspiracy |

From last Friday's decision in Rojas v. Martell (Ill. App. Ct.), written by Justice Donald Hudson and joined by Justices Susan Fayette Hutchinson and Mary Schostok:

Plaintiff Sandra Rojas had worked for 18 years as a nurse with the Winnebago County Health Department, dealing with pediatric immunization, adult immunization, and phlebotomy. In 2014, the Department decided to merge its eight clinics, which included a "family planning/women's health" work. "Toward that end, in January 2015, the nurses in the various clinics were advised that they would be cross-trained to provide all services in the combined clinic, including family planning and women's health services." Rojas told management "about her discomfort with providing certain family planning and women's health services, based on her religious belief": "Plaintiff informed Dr. Martell that as a practicing Catholic her religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making a referral for an abortion."

Management concluded that they couldn't just exempt her from such tasks, but offered a couple of alternative county jobs:

We have diligently considered your request for an accommodation and have determined that we cannot accommodate you within the clinic environment at the Health Department. The terms of the grants that we work under require the nursing staff in the clinics to utilize a non-directed approach with our clients. Frequently, this will involve job duties that you have indicated are objectionable to you. We have determined that we cannot segregate you, as the only full-time Licensed Practical Nurse (LPN), from these job duties without creating an undue hardship for the other employees in the clinics and the Health Department as a whole.

While we cannot accommodate you in the Health Department clinics, we can offer some alternatives outside of the clinics. The first position would be as a temporary part-time food inspector for the Health Department. The second would be as an LPN at River Bluff Nursing Home, which is owned by the County of Winnebago. Should you have any questions or be interested in either of these positions, please let me know and we can assist you or direct you to the appropriate personnel to assist you.

Rojas at first suggested that she was open to the River Bluff option, but ultimately declined and resigned. She then sued under the Illinois Religious Freedom Act (the Illinois version of the Religious Freedom Restoration Act) and the Illinois Right of Conscience Act; the court explained the Right of Conscience Act in some detail:

On the same day the United States Supreme Court decided Roe v. Wade (1973), recognizing that the fundamental right to privacy encompasses a woman's decision to have an abortion, the Court also decided Doe v. Bolton (1973). In Doe, the Court struck down several provisions in the State of Georgia's abortion law, including a residency requirement as well as the requirements that abortions be conducted in licensed and accredited hospitals, that advance approval by a hospital abortion committee be obtained, and that two independent physicians confirm a performing physician's medical judgment that an abortion is justified for one of the reasons enumerated in the statute.

The remainder of the statute was left intact, including the provisions that a hospital "is free not to admit a patient for an abortion" and that "a physician or any other employee has the right to refrain, for moral or religious reasons, from participating in the abortion procedure." The Court noted that these provisions "obviously are in the statute in order to afford appropriate protection to the individual and to the denominational hospital."

In the wake of these decisions, a variety of legislation was enacted at the federal and state levels to address the moral dilemma in which health care providers might find themselves if called upon to provide services that are contrary to their consciences. See generally City & County of San Francisco v. Azar (N.D. Cal. 2019) (reviewing history of federal conscience legislation). The Illinois legislature followed suit in 1977 with the enactment of the Right of Conscience Act. Section 5 of the statute at issue in this case provides:

"It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner, including but not limited to, licensing, hiring, promotion, transfer, staff appointment, hospital, managed care entity, or any other privileges, because of such person's conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience."

The Right of Conscience Act refines its reach in defining the terminology it sets forth, including its definition of "conscience" as "a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths."

{[T]he Right of Conscience Act was amended [effective 2017] to, inter alia, incorporate a requirement that health care facilities adopt protocols regarding access to care and information. During oral argument, counsel advised that litigation challenging the amendments is ongoing at the trial court level.} …

The court then reached four legal conclusions:

[1.] The Right of Conscience Act provides absolute protection for the conscientious objectors that it covers, unlike the federal Title VII, which only requires exemptions from work rules when the exemptions are "reasonable" and don't pose an "undue hardship" for the employer ….

Defendants contend that the Right of Conscience Act should be read in pari materia with Title VII, as Title VII is "the cornerstone of anti-discrimination law" and prohibits discrimination on various grounds, including discrimination based on religion…. [But] Title VII and the Right of Conscience Act address different subjects and were enacted for different purposes. The goal of Title VII is to eliminate discrimination in the workplace. In contrast, the Right of Conscience Act (with its full title the "Health Care Right of Conscience Act") "deals specifically with the issue of health care" and is not confined to the employment context. Rather, the statute prohibits discrimination against "any person" because of "such person's conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience." Thus, in Cohen v. Smith (Ill. Ct. App. 1995), the court held that a patient and her husband stated a claim against a hospital and a male nurse under the Right of Conscience Act based on their alleged failure to honor the plaintiffs' religious belief that prohibited being seen unclothed by a member of the opposite sex….

Defendants contend that a reasonable accommodation—as that term is used under Title VII—is a defense to a Right of Conscience Act claim, and that argument fares no better. In fact, Title VII expressly provides a reasonable-accommodation defense in the text of the statute: "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." An "undue hardship" is one where an accommodation of an employee's religious beliefs would result in "more than a de minimis cost" to the employer in the form of higher wages or lost efficiency. Contrary to Title VII's explicit provision of a reasonable-accommodation defense, the Right of Conscience Act is devoid of the defense.

The Right of Conscience Act was enacted years after Title VII and has been amended since, yet the Illinois legislature never incorporated a Title VII analysis for claims under the Right of Conscience Act. Had the Illinois legislature intended to limit the scope of prohibited discrimination to that which is actionable under Title VII, it could have done so. The absence of any such limitation in the language of the Right of Conscience Act reflects the lack of any intent to import the … reasonable-accommodation concept[] into the statute….

[2.] For the same reason, the Right of Conscience Act doesn't embody the Title VII limitation to "adverse employment action as part of a plaintiff's prima facie case of discrimination and drop it into the Right of Conscience Act. Principles of statutory construction prohibit this…. [T]he adverse-employment-action requirement is a constricting concept, the purpose of which is "'to provide a reasonable limiting principle for the type of conduct actionable under the statute.'" Accordingly, an adverse employment action is defined as a "'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibility, or a decision causing a significant change in benefits.'" The plain language of the Right of Conscience Act sets forth no qualification that its protection applies only when the plaintiff can establish the particularized adverse employment action cognizable under Title VII…. We are not at liberty to ignore the plain language of the Right of Conscience Act and read into it the limitation of an adverse-employment-action requirement as fashioned in Title VII jurisprudence.

[3.] The court also held that the strict scrutiny test applicable under the Illinois Religious Freedom Act (which is based on the federal Religious Freedom Restoration Act) applied to government employees claiming exemptions from government-employer-imposed rules, and not just to ordinary citizens claiming exemptions from criminal or civil statutes. The government argued that the Title VII "reasonable accommodation" test, which is much more employer-friendly, should apply to the Illinois Religious Freedom Act instead, but the court disagreed:

Defendants concede, as they must, that the Religious Freedom Act does not explicitly provide for a defense based upon reasonable accommodation. They nevertheless call for the application of a particularized framework to govern a Religious Freedom Act claim in the government employment context. They point out that the "hallmark of a substantial burden … is the presentation of a coercive choice of either abandoning one's religious convictions or complying with the governmental regulation." Accordingly, defendants contend, "where a defendant can show, in a government-employment setting, that it reasonably accommodated an employee's religious objections to some aspect of her job duties, by eliminating the conflict between employment requirements and religious beliefs, then it has rebutted any claim that it prevented her from engaging in conduct or having a religious experience that her faith mandates."

There is no basis in the plain language of the Religious Freedom Act to support our imposition of this framework. Indeed, the Illinois legislature could not have been more clear in setting forth the statute's purpose to "restore the compelling interest test" as set forth in Yoder and Sherbert. The statute, in turn, explicitly sets forth the compelling-interest test. There is no mention of a reasonable-accommodation defense in this test.

Defendants maintain that they "take no issue" with the compelling-interest test and "do not argue that reasonable accommodation should replace that aspect." Rather, their position is that, "in an employment context, the question of reasonable accommodation should precede any analysis of compelling governmental interests because it would negate a plaintiff's showing of a substantial burden." Essentially, defendants would have us carve out those free-exercise claims that arise in the employment context and impose exclusively thereon a Title VII-like framework. We are the judiciary, not the legislature. We may not read into a statute provisions that are not there.

[4.] At the same time, the court concluded that the Right of Conscience Act doesn't categorically forbid employers from transferring employees to positions in which the employees wouldn't be required to do what their conscience forbids:

Thus, by prohibiting discrimination against one who exercises the right of personal conscience, the statute reflects an intent to protect that right in the provision of health care services. Robotically proscribing an employer from transferring an employee to a job that does not include a duty to which the employee has invoked a conscience-based objection would be inconsistent with the statute's clear purpose.

Moreover, inherent in the statute is the recognition that health care facilities are in the business of providing health care services that might include those that are contrary to an employee's conscience. If plaintiffs' position that a transfer necessarily violates the statute were adopted, health care facilities would be required to allow an employee who invokes a conscience-based objection to particular job duties to remain in the employee's position and not perform those duties. But the objectionable job duties might constitute a major portion or all of the employee's work.

The legislature could not have intended to require the employer to pay an employee for performing no duties at the workplace. And there might be an instance where the objecting employee is the only employee who performs the particular duties. The legislature could not have intended that the employer effectively cease its operations, leaving no one employed at the business. We are obliged to construe the statute in a manner that avoids such absurd, unreasonable, or unjust results….

[T]he trial court held that there were genuine issues of material fact as to whether plaintiff was transferred. {The trial court rejected plaintiff's argument that liability was established as a matter of law. The court found genuine issues of material fact as to the purported transfer. The trial court concluded that a reasonable inference may be drawn from the record that defendants "would not have forced [p]laintiff off her job if the hoped-for alternative positions were unavailable or unacceptable." The court also concluded that the "record permits more than one inference about whether the alternative job possibilities were being offered to [p]laintiff, or whether she would ultimately be required to choose one of them (or give up her job)."} We express no opinion on this ruling….

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  1. This ruling is in line with this other ruling.

    http://www.eeoc.gov/eeoc/newsroom/release/10-22-15b.cfm

    Regardless of the public policy merits of RFRA’s and consicence clauses, this is a correct inrterpretation of the law.

  2. It sounds like on the facts of this specific case, the hospital did try to accommodate her, and that giving her the accommodation she seeks will pose a hardship to the employer.

    And this, I think, is the real question: What is the point at which an employee’s religion simply makes it impossible to do the job for which he was hired? There would be little sympathy for an Orthodox Jew who took a job at a non-kosher deli and then bristled at having to prepare ham and cheese sandwiches. Or an evangelical Christian who took a job as a secretary at Playboy Enterprises and then complained about exposure to pornography.

    It’s one thing to accommodate not being able to work certain hours or days, but once the religious belief conflicts with doing the job itself, I say find another job.

    1. “worked for 18 years as a nurse with the Winnebago County Health Department, dealing with pediatric immunization, adult immunization, and phlebotomy”

      Her employer changed the job 18 years after she was hired. Did the Jew start working at a Kosher place which later became non-kosher?

      1. What of it? No one is guaranteed a job for life. Any number of things could have put her job at risk — robodocs, getting hit by a bus, federal mandates for higher job skills.

        Same thing with the deli — yes, it could be bought up. The owner could retire and sell it; convert religion; eminent domain could tear down the place for urban renewal.

        Same thing with the secretary — some magazine empire could buy Playboy and consolidate offices and functions. Circulation could drop and it could go out of business or seek a new clientele.

        1. These things “could” happen…

          But when
          1. It’s government
          2. It’s a new law, regulation, or circumstance that suddenly impacts the religious beliefs in a way that never did before…
          3. No reasonable accomodation is made…

          Well…it starts to look like religious-type discrimination.

          It begins to look like religious discrimination.

          1. re: # 2 – Consolidations of duplicative departments have never happened before? That seems unlikely even for government.

            re: # 3 – Being offered an equivalent job that doesn’t require you to do the things you object to isn’t a reasonable accommodation?

            More to the point, though (and as the court and the article above explain in considerable detail), even if they hadn’t offered the other jobs, the reasonable accommodation test doesn’t matter. That’s a rule for complaints under Title Vii, not the IL HCRCA.

            1. Ah yes…the “equivalent job”. Sure, you’re a trained nurse. Here’s a job offer as a part time food inspector. Right…

              Maybe she should get a job offer as a custodian? Trash pick up?

      2. Did the Jew start working at a Kosher place which later became non-kosher?

        I’m not sure a judgement that says an employer has to get employee approval for all menu changes would stand.

        Jobs change. Sometimes they change in ways that make an existing employee no longer happy to be there.

    2. Find another job? Next you’ll tell the gay guy who wants a wedding cake to find another bakery that will bake him a cake.
      Actually, that would be easier than a nurse with 18 years experience finding an equivalent job (equivalent for vacation time and benefits, etc)

      1. Rico, the two are not even remotely comparable (although I’m also fine with telling the gay couple to find another bakery).

        In the bakery case, the store refused to sell the customer a product he wanted because the store objected to homosexuality in general and gay marriage in particular. It was the identity itself to which the bakery objected.

        In the hospital case, the hospital had no objection (at least not that we know of) to the woman’s religion, or her religious beliefs. Rather, it made an operational decision that it needed her position to be filled by someone who was willing to perform certain tasks that she found objectionable.

        By the way, I’m old enough to remember when “no special rights for gays” was a right-wing mantra. It appears that religion, rather than gays, is the one seeking special rights.

        1. Her religious beliefs are not part of her identity? They are not “the identity itself” for her?

  3. “The Right of Conscience Act provides absolute protection for the conscientious objectors that it covers”

    That’s probably a bad idea.

    1. But the Illinois legislature decided to enact it and bad idea or not, it’s not the job of the Illinois courts to fix that.

      1. I think arguably it violates the First Amendment because it prefers religion over non religion.

        1. Why? It applies to all conscientious objectors, whether religious or not. Someone who thinks abortion is murder for secular reasons gets the same protection as someone who thinks it’s murder for religious reasons.

          1. I said “arguably” and your response is the reason it might not be. But here are the two arguments that it is:

            First, the cold hard reality is that the overwhelming majority of anti-abortion belief is religious. So even though it theoretically protects right-to-life atheists too, it has the practical effect of tilting the scale in favor of religion most of the time, especially when its a secular hospital whose values must be subordinated to those of its religious employees.

            Which leads into the second reason. The idea of individual autonomy and women’s reproductive rights is a secular ideal. While there are religious people who agree with those ideals, the ideals themselves are secular. A woman’s right to an abortion is not something Moses brought down from Mount Sinai or St. Paul talked about in his epistle to the Romans; that is straight out of the secular philosophy of David Hume and Jeremy Bentham and Ayn Rand and Voltaire.

    2. Whether it’s a bad idea or not, it’s what the Illinois Legislature enacted. Everyone agrees it provides more protection than federal law does. But the law is fairly clear, and the Illinois court was correct to determine that this was what the Illinois legislature intended.

  4. “a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths.”

    How is that not an establishment clause violation, given that atheists are unlikely to have a conscience as defined?

    1. The definition is drawn from U.S. v. Seeger and Welsh v. U.S., which extended religious exemptions (there, draft exemptions) to nonreligious conscientious objectors. The point of the definition is precisely to protect such nonreligious objectors, on the theory that nonreligious people may view their understanding of morality as binding the way religious people view God’s commands as binding.

      1. This can be described as the “God-shaped hole” theory of conscience.

      2. And yet, these RFRA-type cases are never about atheists…

        1. Atheists are willing to do anything. So they don’t object.

        2. Atheists have raised RFRA challenges to “In God We Trust” in addition to First Amendment ones.

        3. Martinned: I don’t know of any RFRA cases brought by atheists, but there are Title VII religious accommodation cases brought by people who are raising nonreligious conscientious objections — the most famous one is the vegetarian bus driver who refused to hand out coupons for hamburgers (as part of a promotion that the bus agency was doing with the burger chain). The EEOC found in his favor, and the agency then settled the case. Federal cases generally agree that such claims are legally viable.

  5. The more special privilege provided to religious claimants, the more important the Congregation Of Exalted Reason would become — our sacraments include most recreational drugs, a women’s control of her reproductive life, many consumer and environmental protections, assistance to immigrants, science (rejection of superstition), and aggressive shunning of bigots — and the more exciting my transition to a full-time man of the cloth would be.

    1. “our sacraments include most recreational drugs”

      Really? Not just opposing prohibition but actually taking recreational drugs?

      Since I suppose you’re against punishing people for being Communists, maybe your sacraments should include singing The Internationale.

  6. Is the _Yoder_ referenced _Wisconsin v. Yoder_?

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