Job Bias Case Tests Religious Privacy Rights

Legal Times/July 19, 2002
By Jonathan Groner

A case percolating in federal court in Washington, D.C., poses a tangled question that few federal courts have ever grappled with: Can a worker's claim of job discrimination trump the First Amendment's guarantee of freedom of religion?

The unusual issue arises in a case in U.S. District Court against The Washington Times, which through various subsidiaries is owned by the Unification Church, founded by the Rev. Sun Myung Moon.

Pamela Johnson, a personnel specialist for the newspaper from 1989 until 1998, is alleging that she received a much lower raise than a co-worker who was a member of the Unification Church -- and then was fired when she complained to the Equal Employment Opportunity Commission about her treatment.

The Times says its editorial and business decisions are made independently of the controversial church. That assertion, in part, is what Johnson is challenging.

In order to find out whether there was a pattern of religious discrimination at the newspaper, Johnson's lawyers at the D.C. plaintiffs firm Cashdan, Golden & Kane say they need to know which employees were members of the church while Johnson worked there.

Last year, Johnson's lawyers subpoenaed the church and two officials of the newspaper, provoking a firestorm of protest from the defendants.

One church-related entity, the Unification Church International, objected that Johnson's counsel are 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 from the D.C. office of Baker & Hostetler, representing another church entity, 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.

The church also argues that since many people disdain so-called "Moonies," its members would be subject to public embarrassment and might even lose their jobs if their names were disclosed.

Johnson, the plaintiff, declines comment. But David Cashdan, one of her lawyers, says redressing job discrimination ought to take precedence over the church's claims.

"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," says Cashdan, who is pursuing the case along with partner Michael Kane and associate Meredith Francis.

"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," the Cashdan firm wrote in a brief.

U.S. Magistrate Judge John Facciola considered the competing claims in the Johnson case and, in an opinion last month, tried to come up with a workable compromise.

Facciola recommended that the Times designate a third party to obtain information about which of its employees were Unification Church members around the time of Johnson's complaints.

If any of those people received raises, this outside "designee" would compare those raises with the raises given to non-church members in the same departments and would furnish Facciola with a chart that omits the names of specific individuals.

Facciola wrote that by preserving anonymity in this way, he could locate a pattern of discrimination if one existed, while preserving the employees' 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."

Facciola noted that Mormons, Catholics and Jews have all faced prejudice in American history similar to what Unification Church members encounter today.

Like all magistrates' discovery rulings, Facciola's opinion is appealable to the U.S. district judge on the case, in this instance Judge Colleen Kollar-Kotelly.

"I appreciate that both sides may object to my solution," Facciola wrote. "I can only hope that, like any settlement, it displeases both of them equally."

That may prove to be the case. Both Cashdan and Baker & Hostetler's Frederick Chockley say they plan to raise objections before Kollar-Kotelly. No date has been set for the appeal to the district judge.

"The magistrate judge was sympathetic to the church's interests in free exercise and free association, but his order violates the First Amendment by requiring the church to provide information about the identities of its members in any form," says Chockley.

There appears to be no precedent on the issue from the U.S. Court of Appeals for the D.C. Circuit.

In his court papers, Chockley cites NAACP v. Alabama, a 1958 freedom-of-association case in which the U.S. Supreme Court unanimously held that the civil rights organization could not be forced by the state of Alabama to turn over its membership lists.

He also points to Baer v. Standard Oil Co., a 1976 case from a California district court. That court ruled that a Jewish employee claiming discrimination was not entitled to obtain data on the religious affiliations of company employees.

For his part, Cashdan says that the magistrate judge "may have used an overabundance of caution" in his proposal and that "there are cases in which courts have allowed religious identifications."

He cites cases such as EEOC v. Mississippi College, a 1980 ruling in which the 5th U.S. Circuit Court of Appeals upheld a subpoena to a church-related college that gave hiring preference to Baptists.

Ira Lupu, a constitutional scholar who has written extensively on freedom of religion, says Facciola appears to have struck the right balance.

"I think this is an excellent idea," says Lupu, a professor at the George Washington University Law School. "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."

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