When an employee will not comply with his employer’s policies and procedures intended to ensure compliance with state law, can the employer suspend that employee for noncompliance? If the employee states a religiously-motivated reason for the noncompliance, possibly not. In Vandersand v. Wal-Mart Stores, Inc., No. 06-3292, the U.S. District Court for the Central District of Illinois found that a pharmacist could pursue an action for religious discrimination claim because his employer suspended him for refusing to sell emergency contraception.
On April 1, 2005, Illinois enacted an administrative rule requiring pharmacies, upon receipt of a valid prescription, to dispense contraceptive devices, including emergency contraception, without delay. Ill. Admin. Code tit. 68, § 1330.91(j). A few months after the rule became permanent, Ethan Vandersand, a licensed pharmacist at the Wal-Mart in Beardstown, Illinois, received a phone call from a woman identifying herself as a nurse practitioner. The nurse practitioner asked Vandersand if he would dispense emergency contraceptives to her patient. Vandersand replied that he would not.
Vandersand informed his supervisor of the incident, stating that he violated the rule because of his religious beliefs. Wal-Mart allowed Vandersand to choose between being terminated immediately or being placed on unpaid leave of absence. Vandersand chose unpaid leave of absence and subsequently filed a lawsuit claiming religious discrimination in violation of Title VII of the Civil Rights Act of 1964 and a violation of the Illinois Health Care Right of Conscience Act, 745 Ill. Comp. Stat. 70/1 et. seq.
Generally, a plaintiff in a religious discrimination case must prove: (1) the person engaged in a religious observance or practice that conflicts with an employment requirement; (2) the person called the religious observance or practice to the attention of the employer; and (3) the religious observance or practice was the basis for the employer’s adverse employment action against that person. Vandersand claimed that Wal-Mart discriminated against him based on his religion because: (1) his opposition to emergency contraception is part of his religious belief; (2) Wal-Mart knew he refused to dispense emergency contraception because of these religious beliefs; and (3) Wal- Mart took an adverse employment action against him because of his religious beliefs.
In response to Vandersand’s Title VII claim, Wal-Mart argued that it could not be held liable for discrimination because it was simply complying with the Illinois rule requiring that it immediately dispense emergency contraception. However, the court found the rule does not require each individual pharmacist to comply with the rule; rather, the rule only requires that each pharmacy comply with the rule. The court reasoned that Wal-Mart might have complied with the rule without requiring Vandersand to dispense the emergency contraception by asking another Wal-Mart pharmacist to fill the prescription.
In response to Vandersand’s Illinois Right of Conscience Act claim, Wal-Mart argued the Act is limited to those professionals and institutions listed in the Act (physicians, nurses, paraprofessionals, or health care facilities), or alternatively, only to those that can be classified as “health care personnel.” The court dismissed this argument. Instead, the court broadly defined the Act to find it covers”[a]ny person, including Vandersand, who refuses to participate in any way in providing medication because of his conscience is protected by the right of conscience act.” (emphasis added).
Because of the court’s denial of Wal-Mart’s motion to dismiss the Complaint, the case can now proceed to trial for the court to determine whether Vandersand has in fact been discriminated against. Even though any fact issues in the case have not been resolved, this decision does provide some helpful insight as to how the court views a conflict between an employee’s religious beliefs and related state law or company policies. First, because the court found that compliance with the Illinois rule may be achieved by utilizing different employees who are not religiously opposed to the rule, employers should closely scrutinize their handling of such conflicts to determine if an accommodation can be made without unduly burdening the company. Second, because the court found that the Illinois Right of Conscience Act protects not just those in the health-related or medical profession, but rather protects any person who refuses to participate in any way in providing a form of health care services, employers should not limit religious accommodations to those employees who directly provide health care services. Under the court’s reading of the Act, even the cashier conducting the final sale of an emergency contraception might be protected when he or she refuses to complete the sale for religious reasons.