Via Jessica at Cellar Door, I have been following the latest episode of the pharmacy wars. A pharmacist at a Target store in Fenton, Missouri allegedly refused on religious grounds to fill a 26 year old woman's prescription for emergency contraception and instead directed her to a Walgreen's. In response to a letter writing campaign protesting the pharmacist's acts, Target has claimed to have been the victim of inaccurate reporting, but has failed to provide details of what they claim actually happened (at least according to AmericaBlog). In addition, Target made the following statement, contained in a longer letter:
Target consistently ensures that prescriptions for emergency contraception are filled. As an Equal Opportunity Employer, we also are legally required to accommodate our team members' sincerely held religious beliefs as required by Title VII of the Civil Rights Act of 1964. In the unusual event that a Target pharmacist's sincerely held religious beliefs conflict with filling a guest's prescription for emergency contraception, Target policy requires our pharmacists to take responsibility for ensuring that the guest's prescription is filled in a timely and respectful manner. If it is not done in this manner, disciplinary action will be taken.
(As quoted and with emphasis added by AmericaBlog.)
It is not clear from this what Target's policy is. It sounds like they could be saying:
1) We require pharmacists with religious objections to contraception to find another pharmacist in house to fill the prescription.
2) We require pharmacists with religious objections to contraception to direct customers to another pharmacy.
I don't have a problem with the first option if it does not result in any appreciable delay to having the prescription filled. I do have a problem with the second option. As a customer, I demand that Target have available on-site a pharmacist to fill any prescription I may have. If not, I won't shop there anymore. As it stands now, I won't shop there until I have more information about their policy.
SO IS IT TRUE THAT TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 REQUIRES TARGET TO ACCOMMODATE PHARMACISTS WHO REFUSE TO FILL PRESCRIPTIONS ON RELIGIOUS GROUNDS?
Actually, yes -- to a degree. An employer must offer a reasonable accommodation to resolve a conflict between an employee's sincerely held religious belief and a condition of employment, UNLESS such an accommodation would create an undue hardship to the employer's business. It is very easy for an employer to show that a religious accommodation causes an undue hardship: the employer only has to show that the accommodation would impose more than a "de minimis" cost on the employer.
For example, in Cloutier v. Costco Wholesale Corp., 390 F.3d 126 (1st Cir. 2004), the court held that Costco had no obligation to accommodate an employee whose religion required her to display her facial piercings while on duty. (The employee was a member of the Church of Body Modification.) The court found that allowing the employee to display her piercings would impose an undue hardship on Costco because it would conflict with Costco's goal of presenting a "neat, clean, and professional image."
The 8th Circuit Court of Appeals (which has jurisdiction over cases brought in Missouri, where the Target kerfuffle occurred) has said, "Title VII does not require an employer to allow an employee to impose his religious views on others." Wilson v. West Communications, 58 F.3d 1337 (8th Cir.)(considering whether an employer could forbid an employee from wearing an anti-abortion pin she was wearing due to a religious vow she had taken).
So I think for Target to hide behind Title VII is a total cop-out if, in fact, Target is allowing its pharmacists to direct people to other pharmacies. If pharmacists acting on religious beliefs are angering and inconveniencing customers who are trying to fill legitimate prescriptions, Target can easily show that accommodating the pharmacist's religious beliefs would be an undue hardship. Consumers can demand that Target take this position and can help Target make its case of "undue hardship" by letter writing and boycotts.
If on the other hand, Target is simply allowing its pharmacists to hand off a prescription to another pharmacist who is immediately available and on-site, I think that's fine. The problem is that I see no indication in Target's statement that such is the case.
UPDATE: Lawyers, Guns & Money has an even punchier and pithier analysis on their site (with a shout-out to yours truly!)