Jottings By An Employer's Lawyer

Wednesday, April 13, 2005

The Conscientious Objecting Pharmacist - An Appropriate Follow Up to the Prior Post

If I had a better system for posting I would have combined the prior post on the Workplace Religious Freedom Act and this articulation of one side of a debate that seems to have gotten a lot of press lately, Martyrs and Pestles - Should pharmacists be allowed to refuse to dispense birth control?

Although I have not done any in depth analysis, my guess is that this issue would become more legally significant to an employer, as opposed to just a difficult pragmatic and moral issue, if the WRFA were to become law. That is certainly the hope and view of some advocating its passage. The Family Council's website discussion of the WRFA clearly states their view of its purpose:

Policy Goal: The passage of the Workplace Religious Freedom Act (WRFA) would help to ensure that American workers will not have to choose between their faith and their job. The WRFA would create a climate that encourages both the government and private sector to greet employee requests for religious accommodation with respect and consideration rather than suspicion.

And then goes onto give the following as an example of a case that would presumably have been different under the WRFA:

In 1996, Kmart fired Karen Brauer, an Ohio pharmacist, for refusing to dispense Micronor, a birth-control pill. K-mart did so even though Ms. Brauer had informed them when she was hired in 1989 that, based on her religious beliefs, she would not do so.

Regardless of your view on the merits of this debate, it is hard for me to buy this argument of the Family Council:

The WRFA would restore the intent of Congress in Title VII by providing clear statutory guidance to those employers who wish to comply with the law but are unsure what level of deference the law requires. The WRFA is also good for business, as it is likely to significantly reduce employee lawsuits and any associated costs.

I think it is going to be a hard sell to many experienced in this field to suggest that business will benefit by the creation of an expansion of rights in a contentious area, where the ultimate method of resolution is a lawsuit. While bright line rules might accomplish that, it seems highly unlikely that the WRFA would give such clear guidance. Actually, there is already a fairly bright line as to the extent of an employer's obligation to accommodate religious beliefs under Title VII. It is based on the Supreme Court's decision in Trans World Airlines v. Hardison (1977) and over 25 years of further court interpretation. It is that line that the WRFA would change, which if I am not wrong would mean another substantial period of uncertainty while the courts tell us what the language passed by Congress means in the reality that is the workplace as scrutinized in the court room.

The argument for the validity of the WRFA should be on the basis of whether the costs that will be incurred by business (which of course ultimately means by all of us as consumers), as well as the costs to those who might be harmed by newly empowered employees exercising rights given them by the WRFA, are worth it to obtain the policy goal being sought.

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