Dialing De MinimisTodd R. McFarland July/August 2019
The intersection of American capitalism and religious freedom can be a tricky place. It has been long said that “the business of America is business.” Not surprisingly, the United States has always been loath to pass any law that could be viewed as interfering with business. In fact, it was not until the Great Depression, as a result of the pressures it brought to bear in the workplace, that worker protections of any type came into being. Further, it was not until the culmination of the civil rights movement that we saw meaningful protections for workers based on such characteristics as race, gender, or religion.
It was in the context of the civil rights movement that in 1964, and again in 1972, Congress made the decision that the workplace was going to be open to all faiths, races, and genders. Prior to that, it was perfectly legal not to hire someone because he or she was Catholic, or because she was a she.
Congress determined that just as an employer could not refuse to hire because of race, he or she could not on the basis of religion, either. Then Congress went one step further and made clear in 1972 that religion included not just identifying with a religion, but actually practicing it. So not only was putting a “No Jews Need Apply” sign in the window now illegal, so was expecting the observant Jew to work on Shabbat.
This prohibition on religious discrimination, however, has always been qualified. While there are a very few exceptions for racial discrimination (a director need not audition Tom Hanks for his Martin Luther King biopic, no matter how good an actor he is), religious discrimination prohibitions have always come with a few caveats.
For instance, religious employers have the right to hire people of their own faith. Similarly, secular businesses do not have to accommodate an employee’s religious beliefs under all circumstances. Congress struck a balance here by saying the employer must accommodate unless it causes an “undue hardship.” While those two little words gave a defense to those unwilling employers, the intent seemed clear. Religious employees were to be accommodated unless there was a compelling reason not to.
Against this developing legal backdrop, a certain Darrell Patterson found himself in the summer of 2011, beginning a close to 10-year odyssey toward correcting a mistake the Supreme Court made in 1977. The result is arguably restoring workplace religious protections to the intent of Congress and this country’s founding principles.
Darrell Patterson began working for Walgreens in 2005. He started as a customer service representative at their call center in Orlando, Florida. As a former Army officer and college graduate, he quickly worked himself up to the position of trainer. He enjoyed the classroom setting his job entailed.
When new customer-care representatives were hired, he, along with a fellow trainer, would instruct the new employees on how to handle calls. He would also do supplemental and refresher training.
When Patterson first applied to Walgreens, he was looking for work that would allow him to keep his Sabbath. Darrell had been raised as a Seventh-day Adventist and had observed the Sabbath from sunset on Friday to sunset on Saturday. Having recently become reconvicted of the need to keep that faith practice, and not wanting to have any problems, he was upfront about his religious needs when interviewing for jobs. In fact, he had withdrawn his application for another company that said giving him Sabbath off would be a problem. But the recruiter for Walgreens had assured him Sabbath accommodation would not be a problem.
While Patterson worked in Orlando, Walgreens had several call centers throughout the United States. However, in August of 2011 its Muscle Shoals, Alabama, call center had a problem: the State of Alabama Pharmacy Board was threatening to close it down.
It was never clear how it came to the board’s attention, but somehow the pharmacy board became aware that call center representatives were taking calls to refill prescriptions. The problem was that under Alabama law, one needed to be a pharmacist or a pharmacist technician to fill a prescription. Needless to say, none of the call center employees fit either of those criteria. The pharmacy board sent Walgreens a cease-and-desist letter, telling it to stop having untrained call center representatives taking prescription calls by that coming Friday. Walgreens was suitably scared.
But what Walgreens lacked in its knowledge of pharmacy law, it made up for in its ability to skirt that law. It did not hire pharmacists and pharmacy techs to fill prescriptions and comply with Alabama law—that would be expensive. Rather, it decided to transfer all of the prescription calls to its Florida call center—where apparently anyone can help pass out drugs.
As one of its trainers, Darrell Patterson played a crucial part in Walgreens’ scheme to dodge Alabama law. He would be required to get the Florida call center representatives up to speed on how to accept and process the Alabama calls. On a Friday afternoon, in the middle of a class, a fellow employee placed the new training materials on Darrell’s desk, with a note saying that he was supposed to train on Saturday and Sunday. There was no discussion of his religious needs, not even a call from management; just an edict from on high!
Darrell immediately tried to call his supervisor about the Saturday assignment. But she was out of town, and had left her cell phone at home. He also tried to switch with his fellow trainer, but she declined because of family issues. This created a problem, as he had been previously told that the only person he could swap with was a fellow trainer.
Darrell Patterson did not show up Saturday. On Sunday, when he showed up to do the scheduled training, he was told to go home by his fellow trainer, who had been called to cover for him, even though Darrell could work Sunday.
On Monday Patterson came in, completed the regularly scheduled training, and then made up the missing training from Saturday. After this, Walgreens administration called him into the office and accused him of misconduct for failing to come in Saturday. He was placed on leave “pending an investigation.” Even though Walgreens has a “three strikes” policy for attendance, and this was Darrell’s first “infraction,” he was terminated that Thursday. Significantly, Walgreens did make its Tuesday deadline for transferring all appropriate calls to the Florida call center.
Later, defending its actions from a claim of religious discrimination in federal court, Walgreens made two arguments. First, despite having fired Patterson for not coming in on Sabbath, Walgreens claimed that it had actually accommodated him. Walgreens made this claim because in the termination meeting the manager told him that he might be able to go back to being a customer-care representative.
In the same breath, though, the manager also said that there was “no guarantee” he would get Sabbaths off even in that job. In fact, in deposition, a different Walgreens manager testified that Walgreens policy regarding accommodation was that it did not accommodate. Darrell, understandably, was not interested in a job that would pay less than half of his current salary and yet still would give him Sabbath problems.
The second argument Walgreens made was that accommodating him would be an undue hardship. Walgreens’ primary claim wasn’t that it suffered harm when he didn’t show up on Saturday. There was clearly no compelling business reason that the training had to be done on Saturday. Even after the missed training session, Walgreens still could not point to a single concrete harm it suffered from the delay.
Rather, Walgreens argued that in the future it might have another “emergency,” and needed someone who would work seven days a week. This type of speculation about future events and what might happen is generally not allowed by courts; but it was by the judge who heard Patterson’s case.
Walgreens prevailed on both of its claims: at the trial court and at the court of appeals. Both found that not only was Walgreens right, but that its case was so overwhelming that a jury did not need to hear it. Instead, a judge decided for Walgreens without ever laying eyes on Darrell Patterson.
The case now awaits a decision from the Supreme Court about whether it will take the case. The Court accepts only a fraction of the thousands of cases it is asked to hear each year, usually somewhere between 70 and 80 cases. But there are some hopeful signs that the Court might be interested in this case.
In an earlier case this year Samuel Alito, joined by Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, gave a strong indication they were willing to revisit the 1977 TWA v. Hardison case, which has made it so easy for employers to prevail over people of faith like Patterson.
Hardison said that anything more than a minimal cost or imposition (de minimis, in legal speak) on the employer was “undue hardship.” This definition of undue defies any rational interpretation of the word “undue”; but at the time the Supreme Court was not nearly as rigorous as it is today in interpreting laws Congress passes.
If the Supreme Court agrees to take the case, it will be faced with a couple of tasks. There are the important, albeit technical, issues that matter greatly to litigants. Certainly, whether an accommodation has to actually accommodate is important. The issue of whether a hardship has to be real or can simply be based on an employer’s hypothetical is one worthy of Supreme Court review. However, the bigger issue the Supreme Court must decide is where religion fits in the modern American workplace.
Walgreens might like to describe Patterson’s termination as a business decision, with no religious animus or discriminatory intent. But make no mistake about it, this is not about some neutral workplace rule, with no religious bias or meaning. Every decision Walgreens made was infused with religious preferences and assumptions.
Why would Walgreens think it was acceptable to require anyone, let alone Darrell Patterson, to work on Saturday in the first place? Because it made a decision that doing so was morally acceptable. Even if this decision was based on nothing more than most people in this country not having a problem working on Saturday (or any day, for that matter), it was still a decision.
Walgreens’ business practices are built around a set of values that are baked into the culture and the country. Those values have a preference for Sunday off over Saturday. Those values also say that holy day observance is not a valid reason to refuse to work. If Darrell had been sick or missed coming in because, say, his house had caught on fire the night before, would Walgreens have fired him? Not likely. But missing work because of his faith was not viewed as a legitimate reason.
To be clear, there is nothing wrong with a secular company adapting to the culture of the country where it does business. To do otherwise would be an irresponsible business decision. In a country that values religious freedom, the government should not be in the business of telling companies when to be open and closed. But the question here is not when Walgreens should be open, but whether there is any room for employees that do not share the values of their secular, profit-motivated employers.
Congress’ intent in requiring companies to accommodate religion was not to prefer one set of beliefs over another. It was not trying to discriminate against majority faiths or culture, provide “unequal” treatment, or divvy up days off by religion. Rather, it was trying to do what all civil rights laws do: level the playing field.
Walgreens wanted employees who were willing to subjugate their beliefs, their needs, their faith to its corporate convenience. Darrell Patterson never asked Walgreens to miss any of its customer commitments so he could keep his Sabbath. It was not forced into the position of choosing between accommodating Patterson or refilling prescriptions.
Walgreens was asked to think slightly outside of its “we must do it our way” mentality so that employees would not have to choose between their faith and their job. This would not be to prefer religious employees, but would give equal opportunity to the employee of faith as is given other employees.
This is what nondiscrimination laws are designed to do—level the playing field. Employers who before 1964 thought women were not qualified to be anything other than secretaries were suddenly forced to actually defend their hiring practices. If an African-American employee wanted a promotion, employers had to justify their decisions based on facts, not on a set of biases.
The same is true with a refusal to accommodate a religious employee. Employers do get to set the terms and rules of the workplace. But if those rules disfranchise an entire religion, then maybe an employer needs to have a very good reason for that and not just that “something may happen in the future.”
The Supreme Court’s decision about whether it will take this case should come in October or November of 2019. What is at stake, to paraphrase Justice Thurgood Marshall’s dissent in Hardison, is one of this nation’s pillars of strength—our hospitality to religious diversity.
Illustration by Kim Justinen