Religious Accommodation Requirement in Civil Rights Act No Justification for Pharmacist's Refusal

May 17, 2007

When does an employee's  insistence on a religious accommodation cause his employer an "undue hardship?" Certainly when it threatens to disrupt his employer's business, the Seventh Circuit Court of Appeals answered recently, holding that a pharmacist's refusal to service in any way customers seeking to fill birth control-related prescriptions or even to refer them to another pharmacist  went too far.   It therefore upholds the firing of a pharmacist who lost his job after refusing to work, despite various less disruptive accommodations offered by his employer intended to meet his religious objections. 

Medical Staffing Network, Inc. ("MSN"), one of the nation's largest health care staffing companies, employed Neil Noesen, a pharmacist.  In July 2005, MSN placed Noesen in the pharmacy of a Wal-Mart store in Onalaska, Wisconsin. 

Before starting work, Noesen advised MSN and Wal-Mart that he would not fill prescriptions for or otherwise assist in providing contraceptive articles because of his Roman Catholic beliefs.  Robert Overton, the acting supervisor of the pharmacy, agreed to accommodate Noesen by relieving him from filling prescriptions for birth control, taking orders for birth control from customers or physicians, handing customers birth control medication, and performing checks on birth control orders.  Overton also arranged for birth control prescriptions to be sorted into a separate basket so that Noesen would not have to touch the items and ensured that someone else in the pharmacy would be able to fill orders and respond to customer inquiries regarding birth control.

Notwithstanding these accommodations, Noesen refused to perform general customer-service duties if they involved even briefly talking to customers seeking birth control.  For example, when customers called regarding birth control prescriptions, Noesen put them on hold and did not tell other pharmacy staff that someone was holding.  Likewise, when customers came to the counter seeking birth control, Noesen walked away and refused to tell anyone that the customers needed assistance or he would actively try to convince the customer not to use birth control and to consider other options. 

When Overton learned what Noesen was doing, he instructed Noesen to refer those customers to other pharmacy staff.  Noesen refused and insisted that the only acceptable accommodation was to relieve him of all counter and telephone duties unless customers were first pre-screened by other pharmacy staff.  Overton declined to afford Noesen this accommodation and, after Noesen continued to refuse to perform his duties, fired him.  Rather than leave the store, Noesen began lecturing to customers about Wal-Mart's allegedly discriminatory practices.  After being asked by Wal-Mart and then the police to leave the store, Noesen refused and was ultimately arrested and carried out of the store by the police.  When MSN learned of his conduct, it fired Noesen as well.

Noesen sued MSN, Wal-Mart, and the State of Wisconsin for religious discrimination under Title VII of the Civil Rights Act of 1964.  After the District Court entered summary judgment for MSN, Wal-Mart and the State of Wisconsin, Noesen appealed to the Seventh Circuit.

The appellate court affirmed the ruling in favor of MSN, Wal-Mart and the State of Wisconsin.  The court noted that Title VII requires employers to make reasonable accommodations for their employees' religious beliefs and practices unless doing so would result in undue hardship to the employer.  In the religious discrimination context, an undue hardship exists when an accommodation would cause "more than minimal hardship" to the employer or other employees.  The court noted that an employer is under no obligation to rearrange staffing and incur costs associated with diverting other employees from their normal duties in order to accommodate an inflexible employee.  Noesen's request that other pharmacy staff screen all customer inquiries to ensure they were not seeking birth control, it found, would have resulted in an undue hardship to the employer.

Employers must evaluate carefully each employee's request for accommodation to determine whether the employee can perform the essential functions of the job and whether the accommodation would result in an undue hardship to the employer.  This very specific analysis  must be made on a case-by-case basis. 

Stephanie L. Adler and Keith L. Hammond of Jackson Lewis LLP's Orlando office represented Medical Staffing Network, Inc. throughout the litigation of this case.

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