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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").
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….