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January/February 2009

Discover more articles from this issue.

Gaining the Upper Hand

Subsidiarity and Justice for All?

A Right of Passage

Sometimes workplace religious accommodation comes slowly...

Learning About the First

Youth Alive, MUHS, and a Constitutional Moment

Amazing!

John Newton and Religious Liberty

The Break From Rome

The English Reformation and the Origins of Religious Diversity and Religious Freedom.

The American Advent of Benedict XVI

It wasn’t quite the Second Coming, but almost. For the six days in April that Pope Benedict XVI visited the United States, all the coverage, the...

Magazine Archive »

Published in the January/February 2009 Magazine
by Todd R. McFarland

Thirty-nine months. Enough time for a teenager to go from frightened freshman to senior world-conqueror. Enough time to cover the invasion of Europe on D-day to V-E Day, three times over. Enough time for a newborn to start walking, talking, and asking questions. This was also the time frame from Todd Sturgill’s firing from his job at UPS on December 17, 2004—because he refused to violate his conscience— to UPS complying with a court order to put him back to work. In all, 39 months to justice. During that time, Todd Sturgill initially had a federal agency tell him he didn’t have a case. The UPS lawyers would openly mock his case. The UPS representatives would show up to a mediation conference with an offer so embarrassingly low that UPS’s counsel wouldn’t even tell Todd’s lawyers what the number was.

The case went to trial and it went well—Todd Sturgill’s case prevailed. But rather than walking off the field victorious, it was as though he was walking back to the locker room for halftime. And, in that analogy, while he was up by a few touchdowns, there was still another half to play. UPS appealed the verdict, and this process would take just about as much time as getting to trial in the first place. The appeal decision took away two thirds of the money the jury had awarded him: the appellate court would say that the trial court erred. This created a precedent, a rule that makes it more difficult for other workers to be fired because of their faith. But, Todd would get his job back and he would be “made whole”—at least in the sometimes myopic eyes of the law.

The first half of Todd Sturgill’s case was told in Liberty in the November/December 2006 issue. As that article explained, Todd Sturgill became a Seventh-day Adventist in May of 2004. United Postal Services, his employer, refused to give him an accommodation for his religious practice of not working from sundown Friday to sundown Saturday. They fired him because he brought back an hour’s worth of work on December 17, 2004, after being at UPS for nearly 20 years. That article was published just after Todd Sturgill’s case had prevailed in a court of law.

But how had Todd Sturgill convinced a jury that UPS could accommodate him? After all, packages still have to be delivered on Friday— even in December. If UPS doesn’t deliver them, its competitors certainly will. To understand what UPS could have done in Todd Sturgill’s case, and has since done for other Adventist drivers, it is necessary to understand how UPS assigns packages for delivery.

UPS does not have a set route for its drivers like the postal service does. Rather, it uses a complicated system of loops and routes to balance the packages drivers have each day. What this means is that each morning as the packages go down a conveyer belt at the warehouse, UPS keeps track of the number of packages and stops each driver has. If one driver starts to get too many, UPS will take packages from that driver and give them to another driver to “balance the load.” This is done every day at every UPS facility in the country. Thus, while a driver has a “route,” it changes virtually every day, as they may give or take packages from another driver.

The shifting of packages at UPS is not limited to making sure each driver has the same amount of work. If an employee needs off for personal reasons, a birthday party, a Little League game, etc., UPS can and does take packages and give them to another employee. At trial UPS described this process as routine and done every day.

UPS actually used this process for weeks to accommodate Todd Sturgill informally. Despite the decree from upper management that there was nothing UPS could do, Todd’s immediate supervisor was able to get him off by sundown until the very last Friday in December. On Friday, December 17, 2004, Todd realized he was not going to be able to deliver all of his packages in time before sunset. He called his immediate supervisor, who told him to call the manager of the entire facility. This manager repeated the company line that nothing could be done and that if he did not deliver his packages he would be terminated. He then asked Todd, “What are you going to do?” Todd told his supervisor he would work as much as he could for UPS, but was not going to violate his conscience.

That evening Todd had about an hour’s worth of packages to deliver when he checked out a minute before sundown. Another UPS employee then took his truck out and delivered all the packages. That next Monday when Todd showed up to work, he was called into the office and—after nearly 20 years of dedicated service as an employee of UPS—was fired.

Todd immediately contacted Sam Green, the Seventh-day Adventist Public Affairs and Religious Liberty director for his region. Green helped Todd through a required UPS administrative process that told him he had no case. But this could not be the end of story. Green referred the case to the Seventh-day Adventist Religious Liberty Committee. This committee considers which religious discrimination cases it should fund. When Sturgill’s case was accepted, the committee’s attorney, then Mitch Tyner, sought local counsel to partner with. He found Charles Kester, an employment lawyer in northwest Arkansas. While an experienced litigator, Kester had taken only one other religion case before on a contingency. After that experience, he had said never again. He determined such cases too difficult to win and the payoff too small.

But now Kester had the prospect of getting paid an hourly rate (albeit graciously reduced for a nonprofit), so the economics made sense. Kester is an active Episcopalian with his own religious journey having a fair number of twists and turns—he certainly could identify with Todd’s conversion commitment.

When the case started, UPS was openly confident of its chances of prevailing early on—and not without some reason. It was not clear at that point how UPS could have let Todd Sturgill off during its busiest time without incurring what the courts call “undue hardship.” Kester knew that because of a bad 1977 Supreme Court case, UPS only had to show anything more than a “de minimis” cost or decrease in efficiency to prevail. What exactly is a de minimis cost? The courts had not been real clear on this point, but it was certainly small and a lawyer mentor had once described it to Kester as anything more than “a nickel.”

First, Kester had to figure out how to attack the UPS position. He had a lot of experience with the postal service, but none with UPS. He was sure of one thing though: UPS was not being up front in its explanations. If UPS had wanted to give Todd Sturgill time off, it could have. And for a company that made 4 billion dollars profit in the year it fired Todd, any cost it would incur would almost certainly be “de minimis”— whatever that meant.

But how to convince a federal judge and jury of this fact? Federal courts have not been friendly to employment cases. Nationwide only 15 percent of employment plaintiff cases prevail, as opposed to about 50 percent of nonemployment plaintiffs in federal court. Kester knew the chances of prevailing with a religion case were even less.

Kester started out like any good lawyer will, testing the company’s story. UPS said it would cost them money to accommodate Todd. He asked UPS how much. They couldn’t answer this question. In fact, during the entire process UPS never gave a single figure on how much accommodating Todd would cost. However, Kester knew UPS could win without ever coming up with a figure; federal courts have said it wasn’t necessary.

A funny thing happened when Kester started asking UPS employees about the cost to accommodate.

A funny thing happened when Kester started asking UPS employees about the cost to accommodate. They all loyally repeated the company line—undoubtedly fed to them by UPS’s lawyers— that it would cost the company to accommodate Todd. But they couldn’t say much more than that simple assertion. Every time a witness was asked how much it would cost and to get down to specifics, he or she couldn’t come up with anything. It was always vague talk about efficiency and plan days, loops, and load balancing. But everyone agreed that what Todd was asking for, to have packages given to another employee a few days a year, was something UPS did for other employees for nonreligious reasons on a routine basis. Further, it came out at trial that there were at least three employees who were less senior than Todd that had fewer packages and got off work earlier on the day he was fired. Not only that, another less-senior employee had the entire day off on December 17. UPS could not explain how or why any of this had happened. Testimony also came out at trial showing that had UPS given part of Todd’s work to other drivers, it would have meant each driver had, on average, only one third of a package more than he or she would otherwise have had. Despite this, UPS kept insisting it couldn’t have accommodated Todd.

The trial started on Monday afternoon and testimony ended Thursday morning. All of the evidence that Kester developed during discovery came out about what UPS could have done, as well as the fact that there were plenty of other drivers to help on that Friday.

Todd was a little surprised, then, when at about 5:00 p.m. the jury still had not reached a decision and said they wanted to come back on Friday. The legal team was even more surprised when it wasn’t until about 2:00 p.m. on Friday that the judge’s clerk called to say that they had reached a verdict.

By this point they were fairly confident. The jury came back and said that UPS unlawfully failed to accommodate Todd Sturgill. Inexplicably, they also decided that UPS had not terminated because of his “religion.” Despite this, the jury gave Todd all of the money he had asked for in back pay, and then they gave him twice that much money in punitive damages. Later the judge would also order that UPS give him his job back. But UPS was not done. It fully intended to exercise its right to appeal to the Eighth U.S. Circuit Court of Appeals in St. Louis. It was halftime for Todd Sturgill.

UPS, as was its right, appealed. The case was briefed and oral arguments heard by the Eighth Circuit in the fall of 2007. On appeal UPS changed its tune. While at trial it had insisted several times that accommodating would be an issue 52 weeks a year, on appeal it portrayed the conflict as coming down to one hour of work on one Friday. Despite the facts that UPS had refused to accommodate Todd Sturgill and that in helping him out, his immediate supervisor had essentially gone against UPS policy, UPS was now relying on that assistance. It argued to the court that because it had “minimized” the conflict, it had provided a “reasonable” accommodation, and that Todd could have been expected to work that Friday evening in December.

This legal view was troublesome to Todd Sturgill and his legal team. What UPS was arguing was that it was reasonable to ask a person of faith to violate his conscience. They were arguing that a company might only be required to allow a person of faith nine out of 10 Sabbaths, but not all. The problem is that for a person of faith, a partial accommodation is no accommodation. There would be no difference between asking Todd to work one Sabbath a year or 52—he was not able to do either.

The appellate court came down with its decision on January 15, 2008. It was a mixed decision for Todd Sturgill. First, he got his job back and the court allowed his back pay from when he was fired until when he actually went back to work for UPS. However, the court said he was not entitled to the punitive damages because UPS had followed its own procedure.

Essentially, the court has given juries a license to second-guess and pass judgment on someone’s faith.

Most disturbing, though, was the court’s ruling on what is a reasonable accommodation. The court did not buy UPS’s argument that all it had to do was minimize the conflict. But it didn’t buy Todd Sturgill’s argument that elimination of the conflict was also required. Rather, it said a jury might be able to find, based upon a number of factors, that asking a person of faith to work on his or her Sabbath was reasonable. Essentially, the court has given juries a license to secondguess and pass judgment on someone’s faith. However, the court said that in Todd’s case there was no question he needed to be accommodated on all Sabbaths.

Where does this leave people of faith? Vulnerable! The Eighth Circuit’s ruling is the minority view. Most other courts throughout the country that have looked at this have gone the other way. Eventually the U.S. Supreme Court is going to have to resolve this issue. However, in the meantime, religious discrimination law does not fully protect people such as Todd Sturgill in a large part of this country.

There is, of course, another solution to this problem. It is finally time for Congress to pass the Work Place Religious Freedom Act (WRFA) to make it clear to the courts that protecting religion means protecting religion all the time and not just part of the time. This law would also make it clear that companies like UPS can be required to pay more than a nickel and would put protecting religion on a par with other civil rights protections, such as disability.

Todd Sturgill went through a lot for his faith. In the end he “won,” but that win only meant he got a job back that he should never have lost and got his back pay after over three years of not working for UPS. It is good we live in a country where the Todd Sturgills have the ability to vindicate their religious rights, it will be a better country when companies do not drag people like Todd Sturgill through 39 months of costly litigation, but choose to do the right thing to begin with.

Todd R. McFarland is associate general counsel for the Seventh-day Adventist Church. Much of his work involves defending religious accommodation cases like that of Todd Sturgill. Todd McFarland writes from Silver Spring, Maryland.

Author: Todd R. McFarland

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