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Johnson (top) and counsel : Challenging a controversial church. Can a worker’s claim of job discrimination trump the First Amendment’s guarantee of freedom of religion? That’s the thorny question a U.S. magistrate judge addressed in June, in the most recent wrinkle of a federal suit against The Washington Times. The owner of the newspaper, through various subsidiaries, is the controversial Unification Church, founded by the Reverend Sun Myung Moon. Pamela Johnson, a personnel specialist for the newspaper for almost ten years, alleges that a raise she received was much lower than that given to a co-worker who was a church member. Johnson also claims that her 1998 termination resulted from a complaint she filed with the U.S. Equal Employment Opportunity Commission. The Times has argued in the case that its editorial and business decisions are made independently of the church. Johnson, who filed suit in federal district court in Washington, challenges that assertion. The legal question the judge addressed revolves around a request last year by Johnson’s attorneys, the D.C.-based plaintiffs firm of Cashdan, Golden & Kane, to determine whether a pattern of religious discrimination existed at the paper. The attorneys say they need to know which employees were members of the church while Johnson worked there. That did not sit well with the defendants. Johnson’s lawyers provoked a virtual firestorm last year by subpoenaing church and newspaper officials. One entity, the Unification Church International, argued that the plaintiffs were seeking “to transform a garden-variety single-plaintiff discrimination case into a worldwide theological inquest.” Those words came from a court filing by UCI counsel Stephen Leckar of D.C.’s Butera & Andrews. The proposed discovery “strikes at the heart of [the church's] free exercise and freedom of association rights under the First Amendment,” wrote lawyers for yet another church entity. The D.C. office of Baker & Hostetler represents the Holy Spirit Association for the Unification of World Christianity. “An unpopular religious organization that has been criticized and even demonized in public discourse, [the church] and its members bear the same rights as more established churches from which no litigant would seriously seek similar information,” the Baker & Hostetler lawyers wrote. Don’t Call Them ‘Moonies’ The church also has argued that because its members often are publicly disdained as “Moonies,” members identified by the suit would be subject to public embarrassment and might even lose their jobs. Johnson’s attorneys disagree. Redressing job discrimination ought to take precedence over the church’s claims, argues David Cashdan. “It’s difficult, if not impossible, to prove an allegation of religious discrimination if you don’t have fundamental data about people’s religious affiliations,” he says. As Cashdan’s firm wrote: “Where the impact on religious belief or practice is minimal, and the interest of equal employment opportunities is high, the balance weighs heavily in favor of enforcing Title VII prohibitions against discrimination.” Something For Everyone As a solution, magistrate judge John Facciola suggested a plan that is almost Solomonic in its overtones. Facciola recommended that the Times designate a third party to ascertain which newspaper employees were church members at the time of Johnson’s complaints. If any received raises, the third party would compare those sums with the raises given non-church members in the same departments. The last step would be to furnish Facciola with a chart omitting any names. The judge wrote that this process would allow him to locate a pattern of discrimination-if one existed-yet still preserve confidentiality and the church’s First Amendment rights. “As a judge, I cannot ignore what I know as a man,” wrote Facciola, a supervising lawyer in the U.S. attorney’s office before he became a magistrate judge in 1997. “In certain mouths, the word ‘Moonie’ is hardly a term of endearment or respect.” He noted that Mormons, Catholics, and Jews all have faced prejudice in American history similar to what Unification Church members encounter today. Like all magistrates’ discovery rulings, Facciola’s opinion could be appealed to the U.S. district court judge on the case. Both sides say they plan to raise objections before presiding judge Colleen Kollar-Kotelly, though no date has been set. At least one legal expert has already weighed in on Facciola’s solution. Ira Lupu, a constitutional scholar who has written extensively on freedom of religion, says the magistrate struck the right balance. “I think this is an excellent idea,” says Lupu, a professor at the George Washington University Law School in D.C. “This facilitates the needed inquiry, without inquiring into anyone’s religious privacy. He allowed only as much discovery as was necessary to achieve the plaintiff’s purposes.” This article originally appeared in Legal Times, a sibling publication of Corporate Counsel and a part of American Lawyer Media.

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