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Rafael Segura is a Messianic Jew, which means he believes in Jesus and wears a beard, a requirement of his faith. But for Pilot Travel Centers L.L.C., that wasn’t a compelling enough reason to allow the maintenance worker to defy its policy banning facial hair. Pilot general counsel Timothy Berry says the policy is enforced at the 265 highway service centers that the company operates in 38 states. So Pilot fired Segura, and in 2003 he sued the Knoxville, Tenn.-based company. Segura went to the Equal Employment Opportunity Commission, where he became part of a growing number of workers who are complaining about religious discrimination on the job. The EEOC sued Pilot in federal court in Tennessee when the company refused its demand for $250,000 in damages for violating Title VII of the U.S. Civil Rights Act. Pilot eventually agreed to a $62,000 settlement before the October 2004 trial began. As part of the agreement, Berry says Pilot will provide managers with training on religious discrimination. But the company didn’t have to hire Segura back, and was allowed to keep its ban on facial hair. Still, Berry says Pilot should have done things differently. “The case boiled down to poor communication between the manager and employee, and between the manager and his boss. Had it been handled properly, we probably would’ve made a [religious] exception” for the beard, Berry says. Contrast Pilot’s experience with what happened at North Coast Women’s Care Medical Group, a clinic in Encinitas, Calif. The clinic tried to accommodate the wishes of a doctor who said she wouldn’t artificially inseminate a lesbian patient because it violated her religious beliefs, and the patient sued. Cases like Segura’s and North Coast’s are putting in-house lawyers at the center of a legal maelstrom. Employees in the past few years have been more willing to complain about — and sue over — religious bias, experts say. Ronald Peppe II, vice president for law and communications of the Association of Corporate Counsel in Washington, D.C., says complaints like Segura’s were extremely rare only a few years ago. But, he says, the patriotic (and, often, anti-Muslim) fervor after the 9/11 terrorist attacks heightened awareness of religious differences. In fact, EEOC figures show that religious complaints spiked in 2002, and have nearly doubled since ten years ago. This increase comes at a time when other complaints, like race, sex and age bias, are leveling off or declining. Peppe, the former GC of Canam Steel Corporation in Point of Rocks, Md., says initially many companies were blindsided by the complaints. “Typically, religion is not a part of training and compliance programs,” he says. In fact, what makes this religious fervor particularly difficult for in-house counsel is that it comes at the same time they’re honing diversity policies that encourage acceptance of differences in gender, race, age, ethnicity and sexual orientation. Disagreeing with the melting-pot “live and let live” attitude fostered by these diversity policies, those with religious complaints often insist on their right to stand apart from their colleagues, by proselytizing on the job, seeking exemptions from duties they object to on religious grounds, or simply insisting on variances from dress codes. Moreover, under Title VII, businesses are required to “accommodate” religious beliefs unless doing so would cause an “undue hardship.” Companies that have made efforts to focus on the similarities of their workers — to be color-blind and gender-neutral in their hiring, promotion and assignment of duties — must accommodate the sometimes polarizing requests of a single worker. Employment attorney Jennifer Walt, a partner at Littler Mendelson in San Francisco, says, “Employers are struggling with how to [accommodate religious beliefs] and still comply with state and federal discrimination laws.” While religious discrimination still accounts for only about 3 percent of all EEOC complaints, its steady growth has corporate counsel, especially those in the service industries and health care fields, doing some real soul-searching. Threatening to make the issue even more sensitive for some in-house counsel is an obscure provision of an appropriations bill signed into law by President Bush in December. It supports hospitals, health care workers and insurance companies that elect not to perform abortion-related activities. Any entity, including a state, that tries to require employees to perform abortions or other related activities, such as pretermination counseling, can lose federal funding. Religious bias suits can be costly, taking a toll not only on a company’s bottom line, but also on “soft” costs. EEOC spokesman David Grinberg says that in 2004 the agency received 2,466 new religious discrimination filings. In 2003, the last year for which full settlement figures are available, Grinberg says the agency resolved 2,690 religious discrimination charges and recovered $6.6 million from employers. It filed lawsuits against companies that garnered an additional $2.8 million that year. But that’s only a tiny part of the financial picture. Some charges are settled in-house, with the employee going first to company managers. That route can consume hours of meetings and outside counsel time. Plus, these cases often lead to lost productivity, low morale, absenteeism, and health issues related to discrimination at work, and “it’s difficult to put a price value on that,” Grinberg says. Fueling this debate are conservative public interest law groups eager to do battle on behalf of aggrieved employees. More than a dozen of these well-funded organizations have been filing suits and amicus briefs on conservative causes — and suing employers over perceived religious bias. For example, the libertarian, nonprofit Rutherford Institute in Charlottesville, Va., challenges laws or actions that interfere with a person’s religious beliefs, especially in the workplace. It has an online form on its Web site for anyone seeking help. Attorney John Whitehead, president of the institute, says complaints about religious discrimination in the workplace have been increasing, especially over the past three years: “[The spike in complaints] is part of what’s happening out there. You are going to see more of it. It is a big, big issue.” Whitehead’s institute has thrown its support behind a bill, the Workplace Religious Freedom Act, which would require employers to accommodate religious beliefs unless doing so causes a severe hardship, as opposed to the lesser “undue hardship” now in place under Title VII. The proposed act — generally opposed by business — has been kicking around Congress for more than five years, but Whitehead thinks 2005 might be the right time to win the votes to make it law. The bill’s key sponsor, Senator Rick Santorum, R-Penn., is lining up support and plans to reintroduce the measure later this year, according to his press office. So at least for now, in-house counsel are drifting in legal limbo, especially when it comes to how much they must accommodate employees’ religious beliefs. But, fortunately, in the three areas where employment lawyers say workers are bringing the most litigated claims — cases involving appearance issues related to an employee’s religion, abortion, and gay rights — there are pending cases in federal court that may soon provide some answers. Multitattooed basketball star Dennis Rodman probably couldn’t get a job at a restaurant owned by Red Robin Gourmet Burgers Inc., even if he wanted to. The 253-restaurant chain, headquartered in Greenwood Village, Colo., prides itself on its clean-cut reputation, and that image precludes visible tattoos. Still, a Red Robin restaurant in Bellevue, Wash., hired Edward Rangel, Jr., in late 2001 as a food server, even though he had visible wrist tattoos. He worked there for over eight months without complaint, until a new manager saw the markings and objected. Rangel told the manager that he was a practicing Kemetic, a follower of a faith based on an ancient Egyptian religion; he contended that his religious beliefs forbade him from covering the tattooed Sanskrit scriptures on his wrists. Red Robin’s general counsel, John Grant, says it was willing to meet Rangel halfway, suggesting that he wear wristbands to conceal the markings. After several meetings between managers and Rangel, he refused; Rangel was fired in June 2002. The EEOC agreed with Rangel and sued Red Robin last May in Seattle federal court; a trial is scheduled for late fall. The situation puts GC Grant squarely in the middle. Speaking generally (he says he can’t comment directly on the case), he says the incident has him studying up on minority religions and on “preconceived norms about culturally acceptable expressions of religions in the workplace.” While tattoos might be fine on, say, an NBA athlete, he says they don’t always fit in with other settings. “Red Robin caters to families with children,” Grant says, and it seeks an image that is “family-oriented.” But Rangel’s attorney, Judith Krebs, says wanting a clean-cut image isn’t enough to trump an employee’s religious beliefs. “How important can image be,” she asks, to make it override a worker’s faith? Krebs, an associate at Schwerin Campbell Barnard in Seattle, believes Red Robin will have to prove that customers prefer its no-tattoo dress code in order to prevail. She calls the company’s image argument a “soft defense,” adding, “The image defense has not yet played itself out in the courts. This case may establish some clearer law.” In some cases, a clash over an employee’s beliefs can occur in the heat of the moment, making accommodation of the employee’s beliefs difficult. That was the case with Stephanie Adamson, an emergency medical technician for a Chicago ambulance service, Superior Air-Ground Ambulance Service Inc. In August 2003 she responded to a hospital’s call to transport a pregnant patient in distress to another facility that had an abortion clinic. Upon arriving at the hospital, Adamson refused to take the patient, citing her pro-life beliefs. A supervisor at Superior called Adamson and tried to talk her into transporting the patient, saying they could discuss her beliefs later. Adamson refused, and the supervisor fired Adamson on the spot. Adamson, supported by a conservative Washington, D.C.-based public interest law group, the American Center for Law and Justice, sued the ambulance service last May for religious discrimination. The suit also accuses the ambulance company of violating an Illinois law that allows a health care worker to refuse to perform a task if doing so violates her conscience. Most states have passed various forms of these so-called conscience laws. The Adamson case is in discovery, with a hearing scheduled in September. The ambulance service denies that any discrimination took place. Defense attorney Summer Heil says the company would have accommodated Adamson’s beliefs if she had simply asked. But, adds Heil, “the time to request accommodation is not when you’ve got a patient in danger in front of you.” Heil, a partner at Williams Montgomery & John in Chicago, says another ambulance crew had to be called in to transport the patient, who developed complications and was taken to an emergency room. Adamson’s attorney, the ACLJ’s Francis Manion, disputes that there was any emergency, or that it was too late for the company to accommodate her beliefs. Manion agrees that ideally, workers and managers should discuss how to accommodate religious beliefs in advance: “But if you are an EMT, it’s almost impossible to imagine a scene where you would be involved in an abortion situation. She never anticipated that.” Manion also thinks the Illinois law will also support Adamson’s claim, even though the company is seeking to have it declared overbroad and unconstitutional. In some cases, even when employers accommodate their employees’ beliefs, the workers still don’t think that’s enough. That was the case in an abortion-related decision in Minneapolis federal court last year. The case involved ultrasound technician Donald Grant, who was fired after he prayed with a pregnant patient considering an abortion and counseled her against it. The court found that his employer, Fairview Hospital and Healthcare Services, made a reasonable accommodation to Grant’s religious needs by allowing him to leave the room rather than examine patients who planned to terminate pregnancies. But Grant insisted on an additional right, to counsel patients against abortion. U.S. district court judge Joan Ericksen granted summary judgment to the hospital, saying that the law “does not require employers to allow employees to impose their religious views on others.” Fairview’s in-house counsel and chief compliance officer, George Chresand, wouldn’t discuss the case except to say that he agrees with the ruling, and that Grant did not appeal. Grant was represented by another conservative legal group, Liberty Counsel, based near Orlando. Mathew Staver, president and general counsel of Liberty Counsel, says the lesson of the case is that an employee must accept an accommodation if it is reasonable. Staver concedes, “The employer does still have some control over what an employee can say to a client or patient.” Accommodation can cut the other way, too, and ensnare a company that thinks it’s doing the right thing for a religious employee. That’s what happened at North Coast, the fertility clinic in Encinitas, Calif. A doctor refused to artificially inseminate Guadalupe Benitez, a lesbian. The doctor said that doing so would violate her faith. Benitez complained. North Coast said that the doctor was the only one able to do in vitro fertilization and referred the patient elsewhere. Benitez sued the medical group, as well as the doctor, for violating California’s law banning discrimination against gays. A lower court agreed with Benitez on that issue, ruling that a religious defense cannot be used as rationale for discrimination. North Coast is appealing that single issue because it is at the core of their defense; the case is pending. North Coast’s defense attorney, Robert Tyler, who works for the Scottsdale, Ariz.-based conservative legal group the Alliance Defense Fund, says cases like these put businesses in an impossible position. If North Coast fired the doctor, she could sue for religious discrimination; but by accommodating the doctor’s faith, North Coast is sued for discrimination by the patient. Tyler argues that “people should have the right to refuse to do certain services when it violates their faith � and a business should not have to be in this dilemma over it.” The patient’s attorney, Jennifer Pizer, senior attorney for the national Lambda Legal Defense and Education Fund, a gay rights group based in Los Angeles, agrees that companies should accommodate employees — up to a point. But as in the Benitez case, she argues that accommodation shouldn’t be “a blanket exemption” to corporate diversity rules or civil rights laws. A similar case at the Hewlett-Packard Company was decided last year. A computer technician at a Boise training facility objected to an HP poster extolling the company’s diversity policy that featured an openly gay employee. The technician, a self-professed devout Christian, put up Bible quotes in his work cubicle to protest the poster, including a quote from Leviticus that says, “If a man lie with a man � they shall surely be put to death.” When the employee refused several requests to remove the quotes, which could be seen by other employees and customers, HP, citing a violation of its harassment policy, fired him, and he sued. A federal court in Boise sided with HP and granted the company summary judgment. The 9th U.S. Circuit Court of Appeals concurred last year, saying HP has a right to enforce its harassment policy and civil rights statutes. The employee did not appeal. As the clash between diversity and religious beliefs continues to intensify, a new federal law could lead to even more conflict. Last December, President George W. Bush signed into law a general appropriations bill that included a religious discrimination amendment. It says that the federal government can cut funding to any entity that discriminates against a pro-life health care institution, or a health care worker who refuses to act against his beliefs. This so-called refusal clause protects any organization or individual that refuses to offer abortion-related services. The ambulance worker in Chicago, for example, might be protected under this law if the event had occurred this year. The clause sparked an immediate reaction. The pro-choice National Family Planning and Reproductive Health Association immediately filed suit in federal court in Washington, D.C., in December, claiming that the law is unconstitutional. And California Attorney General William Lockyer says he’s planning to sue to block the law because, among other things, it doesn’t make an exception for cases in which the mother’s life is in danger. Facing the triple threat of this new law, the proposed Workplace Religious Freedom Act, and the rising increase in claims and suits, general counsel will continue to struggle with how much control an employer has over the expression of religious opinion in the workplace. As Red Robin’s Grant puts it: “It’s going to remain a challenging topic for a long time, because we do have freedom of religion. And it’s hard to make everybody happy.”

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