707 P.2d 1274 (Or.App. 1985), CA A31186, Black v. Employment Div.

Docket Nº:84-AB-161; CA A31186.
Citation:707 P.2d 1274, 75 Or.App. 735
Opinion Judge:BUTTLER, J.,
Party Name:Galen W. BLACK, Petitioner, v. EMPLOYMENT DIVISION, Raymond P. Thorne, Assistant Director, DHR, and Adapt, Respondents.
Attorney:David Morrison, Oregon Legal Services Corp., Roseburg, argued the cause and filed the brief for petitioner. Jeffrey Bennett, Assistant Attorney General, Salem, argued the cause for respondent Employment Division. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain,...
Case Date:October 16, 1985
Court:Court of Appeals of Oregon

Page 1274

707 P.2d 1274 (Or.App. 1985)

75 Or.App. 735

Galen W. BLACK, Petitioner,


EMPLOYMENT DIVISION, Raymond P. Thorne, Assistant Director,

DHR, and Adapt, Respondents.

84-AB-161; CA A31186.

Court of Appeals of Oregon, In Banc.

October 16, 1985

Page 1275

Argued and Submitted Oct. 31, 1984.

Resubmitted In Banc June 6, 1985.

Page 1276

[75 Or.App. 736] David Morrison, Roseburg, argued the cause and filed the brief for petitioner.

Jeffrey Bennett, Asst. Atty. Gen., Salem, argued the cause for respondent Employment Div. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Eldon F. Caley, Roseburg, filed the brief for respondent ADAPT.

[75 Or.App. 737] ROSSMAN, Judge.

Claimant appeals an Employment Appeals Board order which disqualified him from receiving unemployment compensation. 1 Because EAB failed to consider claimant's principal argument, we reverse and remand for reconsideration.

Beginning in September, 1982, claimant was employed by a drug and alcohol treatment clinic as a resident assistant. He has a history of substance abuse but has been drug and alcohol free since early 1982. Employer's personnel rules provide that misuse or abuse of alcohol or other mind-altering substances may constitute grounds for suspension. Claimant signed a copy of those rules on his second day of employment. Employer contends it also was understood that, for recovering alcoholics and drug addicts, any use of drugs or alcohol was considered abuse. During the course of his employment, claimant was promoted twice, the last time to a counselor position in June, 1983.

Claimant is a member of the Native American Church and attends services weekly. At the hearing, he indicated that he first came in contact with the church through his job. He began attending regularly around March, 1983, approximately six months after he began working for employer. In September, 1983, as part of a Native American Church ceremony, claimant ingested a small amount of peyote, a cactus "button" containing the hallucinogen mescaline, which is illegal in Oregon. ORS 475.005. He took it for spiritual reasons, as a communion. There was testimony that the amount was too small to produce any hallucinogenic reaction. Before participating in the church ceremony, claimant consulted with friends and co-workers about the advisability of ingesting peyote, given his history of drug and alcohol abuse. Claimant testified that he was not required by the church to take peyote, but that it was a personal decision.

When employer learned of claimant's actions, he was asked to submit to an evaluation by a professional social worker, who recommended that claimant be placed in a [75 Or.App. 738] residential care facility for an intensive program of personal counseling. Claimant refused to follow the recommendation because he disagreed with employer's opinion that his religious practices were a sign of relapse. Thereafter, he was terminated for intentional violation of employer rules.

Claimant's initial application for unemployment compensation was denied. Pursuant to his request, a hearing was held, and the referee allowed his application after concluding that claimant's use of peyote was an isolated instance of poor judgment. OAR 471-30-038(3). Employer requested review by EAB, which issued an order that denied benefits. The order provided:

"FINDINGS OF FACT. (1) The employer is a non-profit organization which engages in operating various programs for the treatment and prevention of alcohol and drug abuse. (2) The claimant was employed by this employer from June of 1983 until October of 1983 as a drug and alcoholism rehabilitation counsellor. (3) He was recovering from alcohol and drug addiction during this period of time, and had refrained from the use of alcohol and/or drugs.

"(4) The employer's rules and policies specify that employees will avoid substance abuse which involves alcohol and drugs. (5) Those policies and rules also provide for a suspension and termination if a staff member misuses alcoholic beverages and/or other mind altering drugs.

Page 1277

(6) The claimant was aware of those employer rules.

"(7) On approximately September 10, 1983 the claimant attended a native American religious ceremony and ingested peyote as part of the ceremony. (8) Peyote is an illegal substance and the claimant was aware of its status. (9) The use of this drug during the ceremony was not required and was optional among the participants. (10) Prior to ingesting the drug the claimant spoke to others about the advisability of partaking in this portion of the ceremony. (11) After consulting with others, the claimant decided to ingest the drug. (12) He does not deny doing so.

"(13) When this came to the employer's attention he was asked to submit to an evaluation by a professional social worker. (14) He was placed on an indefinite mandatory sick leave and vacation beginning September 19 and did not work after that date. (15) On approximately October 3, 1983, the employer received the evaluation from the social worker [75 Or.App. 739] which recommended that the claimant be placed in a residential inpatient care facility for alcohol and drug abuse, or that he undergo an intensive program of personal counselling. (16) The claimant refused these options. (17) When the claimant refused these various treatment options he was terminated for violation of the employer's rules as set out above.

"CONCLUSION AND REASONS: We disagree with the referee and find that the claimant was discharged for misconduct in connection with his work. The Administrative Rule cited by the referee sets out that misconduct is a wilful violation of the standards of behavior which an employer has the right to expect of an employee and is an act that amounts to a wilful disregard of the employer's interests.

"We find in the instant case that the claimant's actions constitute misconduct as defined above. He knew the employer's rules prohibited the use of drugs and alcohol and also recognized that he could be terminated if he violated those policies. Although the use of an illegal drug was optional during the religious ceremony, the claimant wilfully made the choice to ingest those drugs. He did so even after he was advised by others that such a choice would perhaps be incorrect or improper. Considering the seriousness of the claimant's conduct in violating the employer's rules we find the exculpatory provisions of the Rule cannot come into play."

Claimant argued before EAB, as he argues here, that his ingestion of peyote is a constitutionally protected religious act which cannot constitute the basis for disqualification. He presented evidence to support that argument. Nevertheless, EAB's "findings of fact" and "conclusions and reasons" are not sufficiently responsive to claimant's constitutional claims. The case must be remanded for reconsideration. See Wasson v. AFSD, 59 Or.App. 634, 640, 652 P.2d 358 (1982); Hillcrest Vineyard v. Bd. of Comm. Douglas Co., 45 Or.App. 285, 608 P.2d 201 (1980). We turn now to a discussion of the nature of EAB's inquiry on remand.


The question in this case is whether the denial of unemployment compensation benefits based on claimant's use of peyote in a Native American Church ceremony is an unconstitutional intrusion on his right to free exercise of religion.

[75 Or.App. 740] The initial responsibility for answering the question falls on claimant. Because he invokes the protection of Article I, sections 2 and 3, of the Oregon Constitution, and the Free Exercise Clause of the First Amendment to the United States Constitution, 2 he must establish that the act in

Page 1278

question is a religious expression and that it is being substantially burdened by state law or action. If he establishes that, then the responsibility for resolving the question shifts to the state, which can only justify a burden placed on the religious expression by demonstrating that it is the least restrictive means of achieving a compelling state interest. 3 Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963).

Thus, three separate and distinct issues emerge. Each must be addressed before the ultimate question in this case can be decided:

(1) Was claimant's ingestion of peyote a religious act?

(2) Was the denial of benefits a substantial burden?

(3) Has the state demonstrated that the denial of benefits serves a compelling state interest by the least restrictive means?

Because we are able to resolve the latter two issues on the record before us, without the necessity of remand, we will address them initially.

First, we hold that the denial of unemployment benefits constitutes a substantial burden. In Sherbert v. Verner, supra, a sabbatarian was discharged for refusing to work [75 Or.App. 741] on Saturday. Her refusal eventually resulted in her disqualification from unemployment benefits. The Supreme Court reversed the denial, holding that there was a significant coercive effect on the practice of religion, because the claimant was forced to choose between state benefits on the one hand and following her religious beliefs on the other. "Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." 374 U.S. at 404, 83 S.Ct. at 1794. In Thomas v. Review Bd., Ind. Empl. Sec. Div., 450 U.S. 707, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981), the Sherbert rationale was...

To continue reading