Employers generally have to accommodate their employees' religious beliefs as long as the cost is a minimal one. Walgreens Drug Stores, for example, had a policy that allowed pharmacists who objected to dispensing certain contraceptives on moral or religious grounds to decline, as long as the prescription could be filled by another pharmacist in the store, or at a nearby pharmacy. A fairly straightforward and reasonable accommodation that apparently imposed acceptable costs on Walgreens.
Enter the over-reaching and politically correct state government of Illinois. In April 2005, Illinois required pharmacies to dispense any contraceptive for which the customer had a valid and lawful prescription, and coupled it with letters to individual pharmacists and physicians explaining that the change in the law was due to individual pharmacists objecting to filling prescriptions for the so-called “morning-after pill”, a form of contraception. Following up, and to make sure that everyone was clear on the intent of this regulation, the governor sent a letter to a political action committee indicating that individual pharmacists who refused to fill birth control prescriptions would subject their employers to significant penalties.
In September, 2005, the state department responsible for licensing pharmacists began filing disciplinary actions against Illinois pharmacies, including Walgreens, for having in their employ individual pharmacists who refused to dispense certain contraceptives. Individual pharmacists who were suspended by Walgreens under this state policy, and Walgreens itself, sued alleging federal constitutional violations, as well as a violation of Title VII.
An Illinois federal court has now refused to dismiss these complaints. The court noted the specific focus of the rule change on individuals and the fact that pharmacists who raise a religious objection are subject to having their employment terminated because their pharmacies will be subject to disciplinary action. Although states may generally promulgate neutral laws of general applicability, even where they conflict with individual religious requirements, a state law or regulation that is designed to discriminate against individuals because of their religious practices is subject to strict scrutiny and requires a compelling state interest.
Based on the statements made by Illinois political leadership, it appears that the pharmacists/plaintiffs in this case can make at least a colorable claim that these regulations were aimed at them as individuals. The court acknowledges this in its opinion, noting the comments made by the governor that the regulations were enacted in response to the acts of individual pharmacists, and the failure by the state to provide pharmacies with a way of accommodating the objections of their employees. The court also found that the individual pharmacists had a valid claim that the state violated Title VII because there is no basis for accommodation of religious beliefs in the state regulations. The targeting of individual pharmacists by requiring their employers to suspend them is a sufficient basis to find that the state is trying to force the employer to not accommodate the pharmacists' individual religious beliefs.
I suspect that this case may well settle with the state backing off its absolute position that pharmacies cannot employ pharmacists with religious or moral objections to dispensing these contraceptives. A common sense approach would simply be to allow Walgreens and other pharmacies to continue what they had been doing. However, at least in Illinois, the importance of pandering to specific interest groups typically trumps common or legal sense, at least initially. A problem that had been dealt with quite adequately by the private sector gets pulled into federal court once the state intervenes with an unworkable requirement.