Saturday, December 16, 2017

Fallon v. Mercy Catholic Medical Center: Is the Title VII requirement that employers accommodate religion unconstitutional?

In Fallon v. Mercy Catholic Medical Center of Southeastern Pennsylvania, the Third Circuit affirmed the dismissal of Paul Fallon's claim that he was subjected to religious discrimination when he was terminated because he refused to receive a flu shot. The Third Circuit agreed with the district court that Fallon's objections regarding the flu vaccine, while sincere and strongly held, were not religious in nature and therefore not protected by Title VII of the Civil Rights Act of 1964. In rejecting Fallon's claim of religious discrimination, the court required Fallon to establish that his views were part of a comprehensive belief system about "fundamental and ultimate questions having to do with deep and imponderable matters." In my view, this narrow test is inconsistent with controlling Supreme Court precedent and EEOC guidelines. Under such a narrow interpretation, Title VII would violate the Establishment Clause of the U.S. Constitution.

Guided by the doctrine of "constitutional avoidance," courts strive to interpret statutes so as to avoid conflicts with the U.S. Constitution. When courts interpret statutory protections for religious beliefs and practices, they must therefore be mindful of potential violations of the First Amendment's prohibition against establishment of religion.

Reflecting these principles, the EEOC's Guidelines on Discrimination Because of Religion "define religious practices to include moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." This definition, in turn, is based on the Supreme Court's decisions in
United States v. Seeger, 380 U.S. 163 (1965), and Welsh v. United States, 398 U.S. 333 (1970), which looked at statutory protections for religious conscientious objectors under section 6(j) of the Universal Military Training and Service Act. That provision explained that a "religious" belief means a belief "in relation to a Supreme Being involving duties superior to those arising from any human relation, but does not include essentially political, sociological, or philosophical views or a merely personal moral code." In Seeger, the Supreme Court held that "[a] sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition."

The Third Circuit rejected Fallon's contention that religious beliefs include "moral or ethical beliefs as to what is right and wrong that are sincerely held with the strength of traditional religious views." Instead, the court insisted that Seeger and Welsh require that the individual claiming protection do more to show that a belief "occup[ies] a place parallel to that filled by God in traditionally religious persons," namely that the views are part of a comprehensive belief system about "fundamental and ultimate questions having to do with deep and imponderable matters."

This interpretation of Seeger and Welsh is untenable. In Welsh, the Supreme Court stated:

If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual "a place parallel to that filled by . . . God" in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a "religious" conscientious objector exemption under § 6 (j) as is someone who derives his conscientious opposition to war from traditional religious convictions.
Thus, it is clear that deeply held moral and ethical beliefs are considered "religious" because those beliefs in and of themselves occupy a place in the life a non-religious person parallel to that of God in the life of a religious person. There is no further requirement that the beliefs be part of a comprehensive belief system about "fundamental and ultimate questions having to do with deep and imponderable matters." Significantly, many moral and ethical beliefs are merely a matter of common sense. It seems pretty obvious that it's wrong to punch someone in the face without provocation, and you can believe that strongly without reference to an underlying belief system regarding profound questions about the nature of the universe.

To be sure, the Third Circuit's test may be useful in evaluating whether a belief is religious even though it has nothing to do with morality or ethics. For instance, if someone claims that he has a religious belief that he must refrain from wearing green pants, then protection may depend on whether the belief is part of a broader belief system related to deep and imponderable matters.

In the context of sincerely and deeply held ethical or moral beliefs, however, the imposition of further requirements runs the risk of violating the First Amendment's prohibition against establishment of religion. The constitutional concerns that drove the Supreme Court's interpretation of the statutory exemption for conscientious objectors were made explicit in Judge Harlan's concurrence in Welsh:  
[H]aving chosen to exempt, [Congress] cannot draw the line between theistic or nontheistic religious beliefs on the one hand and secular beliefs on the other. Any such distinctions are not, in my view, compatible with the Establishment Clause of the First Amendment.
If the exemption is to be given application, it must encompass the class of individuals it purports to exclude, those whose beliefs emanate from a purely moral, ethical, or philosophical source. The common denominator must be the intensity of moral conviction with which a belief is held. Common experience teaches that among "religious" individuals some are weak and others strong adherents to tenets and this is no less true of individuals whose lives are guided by personal ethical considerations.
In Fallon's case, it's not obvious that his objection to the flu vaccine was grounded in his own personal moral or ethical beliefs, but he deserves to have his claim evaluated under a test that doesn't violate the First Amendment.

On the other hand, as I discussed in this prior post, I think that coverage of purely moral or ethical beliefs may be especially significant for vegetarians and vegans who believe that it is morally wrong to exploit animals. If a court properly applies Seeger and Weber and the EEOC's guideline, it should be quite easy for ethical vegetarians and vegans to establish coverage under Title VII. If the statute protects a vegetarian who objects to eating meat based on a passage in the Bible, then surely it must also protect a vegetarian who has strong moral objections to killing and eating animals.

Protecting someone's right to practice his religion may be commendable, but let's not forget about the Constitution.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.