c. 1996 Religion News Service

(RNS)-When Isaiah”Ike”Brown took over a Des Moines county data processing unit in 1986, he made no bones about bringing his born-again Baptist beliefs into the office.

He tacked prayer plaques and inspirational posters on the walls. He led prayers in his office before work with other Christians. During meetings he invoked biblical dictums against sloth. Brown even had a secretary type up his Bible-study notes.

County officials got nervous when less-religious underlings claimed that Brown, in deciding who was laid off in a 1990 downsizing, had held their unbelief against them. Two workers subsequently sued the county on those grounds.

For those who believe that the constitutional separation of church and state should keep religion out of government workplaces, it might seem that Brown should be fired-as he eventually was. Brown later took a position with a Des Moines software company.

But when Brown’s religious discrimination claims against Polk County, Iowa, wound up in court, 11 experienced federal judges could barely reach a consensus in three separate court opinions on how to properly erect a church-state divide in the workplace.

Brown eventually won his case, but not before the full 8th Circuit U.S. Court of Appeals in St. Louis-overruling a three-judge appellate panel-declared that all of Brown’s workplace religious activities were legal except for the Bible study note-typing he gave his secretary. He may be reinstated by the county.”It is not always easy to steer a correct course between the Scylla and Charybdis of the Religion Clauses”of the First Amendment, observed St. Louis federal appeals court judge Morris S. Arnold.

The struggle to decide Brown’s case is typical of the difficulty surrounding issues of religion in the workplace in the United States, where the diversity of faith backgrounds continues to grow. In some instances, courts must go to great lengths to apply laws regulating religious speech and conduct on the job. In other instances, workers-especially those with non-Christian backgrounds-have a difficult time exercising their full religious rights.

Rulings are”idiosyncratic amongst the (federal appellate) circuits and amongst the judges,”says Marc Stern, an attorney for the American Jewish Congress in New York.”There are different notions of fairness, and the Supreme Court has only spoken twice on the subject. So there are lots of issues that are up in the air.” Federal law requires employers to accommodate the religious beliefs and practices of employees, but only if the accommodation does not pose an”undue burden”on them. Giving narrow interpretation to those rules, courts seldom force employers to accommodate religious expression in the workplace.

Part of the problem courts face comes from the Constitution’s contradictory attitude toward religion.

The First Amendment’s”Free Exercise”clause requires government to guarantee the free exercise of religion. But the amendment’s countervailing”Establishment Clause”forbids government from taking any action that might positively promote religion.

While judges must assure that religious belief is not completely suppressed, they must walk a fine line to avoid advancing a religious agenda.

But the problem also has a cultural dimension, shaped by hundreds of years of history in which Christianity has been the majority religious tradition.”The work world was designed around white male Protestants,”says Lewis Maltby, director of the workplace rights office of the American Civil Liberties Union.”It’s designed to have Sunday off and Christmas off. And when people come along from other faiths-particularly faiths that aren’t Judeo-Christian-all sorts of difficulties arise.”(BEGIN OPTIONAL TRIM)

Still, even Christians occasionally encounter difficulties reconciling their beliefs to the demands of a highly secularized work place-such as a police force.

Angelo Rodriguez, a Roman Catholic police officer from Chicago with 15 years of experience, did not mind patrolling the two abortion clinics on his beat. But after anti-abortion demonstrations compelled the police department to place more regular patrols at the clinics, Rodriguez began to raise religious objections to participating.

At first, one supervisor approved his requests to be excused from clinic patrol duties. But later, another supervisor told Rodriguez to do the duty, an order Rodriguez obeyed under protest. Rodriguez later sued the city, claiming he had suffered religious discrimination barred by Title VII of the Civil Rights Act of 1964 and the Religious Freedom Restoration Act (RFRA). Enacted in 1993, RFRA forbids governments from curbing religious expressions or practices without showing”a compelling governmental interest.” In January, a Chicago federal judge agreed that Rodriguez might have a claim and denied a city motion to dismiss his case. However, rules of court procedure will still allow the city to argue that accommodating Rodriguez’s request would compromise police protection.

Rodriguez’s attorney, David Shaneyfelt, says the case could yield a new interpretation of the law.

While many cases have decided questions on the conflict between job schedules and religious holidays, Shaneyfelt says,”there are very few in which someone says this job duty offends my religious sensibilities.”(END OPTIONAL TRIM)

Common are cases involving requests by employees to be excused from duty on the sabbath.

Such cases are especially difficult for those from traditions with sabbath days other than Sunday. For example, Jews and some Christian denominations, such as the Seventh-day Adventist Church, recognize Saturday as the sabbath.

And whatever tradition a believer may come from, the odds are stacked against him if he must take a scheduling dispute to court.

Sabbath-accommodation cases”turn on making adjustments in shifts that the courts are reluctant to make employers carry out,”says Richard Foltin, legal director and counsel for the American Jewish Committee in Washington.

Workers seeking to be excused from sabbath shifts will lose in all events if their absence might pose an”undue hardship”for the employer, according to federal law.

That’s what Gwendolyn Cooper, a Seventh-day Adventist, learned when she tried to rearrange her schedule to avoid sabbath work at Oak Rubber Co., a manufacturer of rubber gloves in Akron, Ohio. A federal court in Ohio rejected her claim because it found that Oak-with its peculiar production system-would have had to hire an additional worker to allow Cooper to avoid work on Saturday.

Federal job discrimination law”does not require an employer to bear more than a (minimal) cost in accommodating an employee’s religious beliefs,”Denver appellate judge Charles Joiner wrote in February 1994.”Either alternative available to Oak-the hiring of an additional worker or risking the loss of production-would have entailed more than a (minimal) cost.” While most production situations may be amenable to some sort of accommodation, federal law does not require employers to give workers any resolution they want.

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That lesson was lost on Aston Beadle, another Seventh-day Adventist who worked for the Hillsborough County, Fla., detention department moving county prisoners to and from their holding cells.

When he was hired, his supervisors informed Beadle that the county used a neutral rotating shift system. Employees would eventually work on all seven days of the week, including the Friday-sundown through Saturday-sundown sabbath period recognized by Beadle’s religion. Though he was aware of the shift system, Beadle never mentioned his need not to work on the sabbath until after his 11-week training had ended, according to a court ruling.

When he did, the county refused his request that he be allowed to work anytime but his sabbath. The county did, however, allow him to swap shifts with other employees. The county even allowed Beadle to advertise his need for a shift swap during daily roll calls and on the department’s bulletin board.

Beadle didn’t always take advantage of his shift-swapping privileges, however, so on several occasions he couldn’t arrange to get off work on his sabbath. On one Friday-night shift, Beadle simply did not show up for work. On another, he abandoned his post in the middle of the shift. He was soon fired.

Both the trial court and a court of appeal upheld the firing.”While we recognize an employer’s duty to reasonably accommodate the religious practices of its employee,”Atlanta federal appeals court judge Lewis Morgan wrote in his August 1994 opinion,”we likewise recognize an employee’s duty to make a good-faith attempt to accommodate his religious needs through means offered by the employer.”(END OPTIONAL TRIM)

Employees are more likely to win cases involving requests that they be allowed to wear religious garb-such as the skullcaps or beards that Jewish men wear, or scarves or veils Muslim women must wear.

Such issues are most likely to conflict in workplaces where employees are required to wear uniforms. However,”if what you’re talking about is corporate appearance rather than safety,”says Stern of the American Jewish Congress,”that’s not an undue hardship.” On the other hand, security or public-health concerns offer employers solid legal ground from which to object to employee religious attire.

In food-service settings, for example, a Jewish man who must wear a beard may be required to roll it in a net or secure it with a rubber band, Stern says.

But employers who take no time to consider an accommodation could get into trouble. A federal court in Little Rock, Ark., ordered Bruce Oakley Inc. to pay damages to Ulysses T. Carter, who was fired after he insisted his religious beliefs compelled him to wear a beard in the office. Carter won the case even though his beliefs derived from an idiosyncratic hybrid of Baptist and Jewish beliefs.

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When U.S. District Judge Elsijane T. Roy had asked company president Dennis Oakley to explain his no-beard policy,”his answer was that his father had started it and the company was going to continue it.” Judge Roy, in a 1994 opinion, concluded that Oakley”simply did not want (Carter) to wear his beard, and … did not meet its legal responsibility to attempt to accommodate the plaintiff’s religious beliefs.” Accommodating religious beliefs of employee or employer is trickier when it comes to religious speech, especially because of the conflicting aims of the”Free Exercise”and”Establishment”clauses of the First Amendment.

A federal judge in Sacramento, Calif., ruled that an area community college could not require two Jehovah’s Witnesses to take an oath of allegiance to the United States and California as a condition of secretarial employment.

On the other hand, a federal judge in Indianapolis upheld the firing of a Jehovah’s Witness for”witnessing”his religion to passersby during breaks on his job as a bailiff for an Indiana state court judge. Plaintiff David Kelly was an employee of the judicial branch, an institution with a compelling constitutional interest in maintaining its”secular nature,”U.S. District Judge Sarah E. Barker ruled.

In private workplaces, employers may have more leeway to press their religious views on employees than employees might have.

In 1992, the Massachusetts Supreme Judicial Court upheld the firing of a controller after she refused to submit to a company training seminar laced with biblical citations. The seminar included a video presentation on”a woman’s proper place”-subject to the authority of her husband and responsible for domestic duties.

But the plaintiff lost her case against Electro-Term Inc., based in Springfield, Mass., after the court found that”the seminar here was in no sense a devotional service.”Thus, the court said, the plaintiff was not asked to”alter her religious conviction or her profession of belief or to give the appearance of supporting a particular tenet of religion.”(END OPTIONAL TRIM)

Legal experts caution that disputes ending in litigation are not what most employers will normally confront.”Most employees want a full-time job,”and”are prepared to go along with anything that will do,”says Stern.”People are not usually unreasonable. They recognize an employer’s problem. They don’t want to be a burden to anyone. They just want to observe their religious practices.” If employers find it difficult to accommodate the religious beliefs of their workers, Stern adds, it’s”only because they’re not careful. If they actually work at it, they’ll find that a lot of cases go away-and the others they can win.” Stern’s advice for employers:”Take it seriously and try.”

MJP END AQUINO