Kenny v. Ambulatory Centre of Miami, Fla., Inc.
| Decision Date | 23 June 1981 |
| Docket Number | No. 80-1164,80-1164 |
| Citation | 400 So.2d 1262 |
| Parties | 26 Fair Empl.Prac.Cas. (BNA) 322, 26 Empl. Prac. Dec. P 32,079 Margaret KENNY, Appellant, v. AMBULATORY CENTRE OF MIAMI, FLORIDA, INC., et al., Appellees. |
| Court | Florida District Court of Appeals |
Robert M. Brake, Coral Gables, for appellant.
Roy B. Gonas, Coral Gables, for appellees.
Before HENDRY, SCHWARTZ and BASKIN, JJ.
Margaret Kenny, a registered nurse, brought an action against her employer, Ambulatory Centre of Miami, Florida, Inc., and its parent corporation, Ambucare International, Inc., pursuant to section 458.22(5), Florida Statutes (1977), 1 in which she sought reinstatement to her position as full-time operating room nurse, reimbursement for lost wages, compensatory and punitive damages, court costs and attorney's fees. She alleged that she had been demoted to part-time on-call status 2 for refusing to assist with abortions and that her demotion violated her right to be free from religious discrimination. At trial, the court rejected her arguments. Ambulatory Centre maintained that fiscal necessity, combined with the refusal of other nurses to exchange their duties and assignments with those of appellant, justified its actions. The court agreed and entered final judgment in favor of appellees. We reverse the decision of the trial court upon our holding that section 458.22(5) precludes disciplinary action for refusal to participate in abortions. In addition, we hold that appellees failed to sustain their burden of proving they would incur undue hardship if they were to accommodate Nurse Kenny's religious beliefs.
Appellant Kenny commenced work as an operating room nurse for the Ambulatory Centre of Miami in 1976. When she later objected on religious grounds to assisting in performing abortions, another nurse exchanged duties with her for a period of time. Thereafter she was unable to find employees who were willing to cooperate.
Appellant was asked to resign when she continued to avoid participating in the performance of abortions, but she refused. When another nurse was told by the Centre that she would be fired if she failed to assist in performing abortions, appellant advised that nurse that section 458.22(5) provided a right to refuse. Subsequently appellant was removed from full-time status and placed on part-time on-call status, thereby becoming subject to loss of fringe benefits.
The record discloses that at the time of appellant's demotion appellees employed both full-time and regularly scheduled part-time nurses. The Centre performed procedures involving plastic surgery 3, gynecology, ophthamology, and podiatry. At trial appellees contended that Ambulatory Centre's audit showed net losses in 1977 and 1978 requiring it to reduce fixed costs. 4 Appellant countered that gross revenues increased with the increase in the number of patients and number of procedures. The trial court received evidence that gynecological procedures constituted approximately sixteen percent 5 of the total procedures performed at the Ambulatory Centre during the period in question. The court ruled that appellant's demotion was justified by appellees' "policy decision and fiscal management" for which there was a "justifiable and compelling basis" and that a "decision made in good faith based on fiscal necessity, although having a spin-off color of discrimination must prevail in an atmosphere of free enterprise and unfettered management process." The court deemed it unnecessary that appellant's religious beliefs be accommodated in the absence of sufficient cooperation from her fellow employees. Finding that appellees had established undue hardship incurred in reasonable efforts to accommodate appellant's beliefs, the court entered Final Judgment and Amended Final Judgment in favor of appellees.
The interpretation of section 458.22(5), Florida Statutes (1977) presents a case of first impression. Section 458.22(5) states:
RIGHT OF REFUSAL. Nothing in this section shall require any hospital or any person to participate in the termination of a pregnancy, nor shall any hospital or any person be liable for such refusal. No person who is a member of, or associated with, the staff of a hospital nor any employee of a hospital or physician in which or by whom the termination of a pregnancy has been authorized or performed, who shall state an objection to such procedure on moral or religious grounds, shall be required to participate in the procedure which will result in the termination of pregnancy. The refusal of any such person or employee to participate shall not form the basis for any disciplinary or other recriminatory action against such person.
Appellant argues that her employer violated the provisions of section 458.22(5) by demoting her for exercising her religious beliefs. She claims her employer's actions stemmed not from financial demands but from a disciplinary motive. Her employer, she asserts, should have accommodated her unwillingness to participate. Appellees respond that the trial court's final judgment correctly observed that accommodation of appellant's religious beliefs constituted an undue hardship. In its ruling, the court cited Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 97 S.Ct. 2264, 53 L.Ed.2d 113 (1977). We therefore compare the federal Civil Rights Act as construed in federal cases such as Trans World Airlines, Inc. v. Hardison, supra, with the Florida statute examined in these proceedings. Our purpose is to determine the appropriate standard of conduct for an employer whose employee chooses to exercise a right under section 458.22(5). We make clear at the outset that questions relating to the right to conduct abortions are not at issue here; only the right of an employee to refuse to assist in performing abortions under section 458.22(5) is before the court.
The Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2, provides:
§ 2000e-2. Unlawful employment practices Employer practices
(a) It shall be an unlawful employment practice for an employer
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
In 1972, Congress amended Title VII to include the following definition of religion:
The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
42 U.S.C. § 2000e(j).
That amendment ratified the provisions of the 1967 EEOC guidelines construing 42 U.S.C. § 2000e-2.
29 C.F.R. § 1605.1 (1967) provides in pertinent part:
(b) The Commission believes that the duty not to discriminate on religious grounds, required by section 703(a)(1) of the Civil Rights Act of 1964, includes an obligation on the part of an employer to make reasonable accommodations to the religious needs of employees and prospective employees where such accommodations can be made without undue hardship on the conduct of the employer's business. Such undue hardship, for example, may exist where the employee's needed work cannot be performed by another employee of substantial similar qualifications during the period of absence of the sabbath observer.
(c) Because of the particularly sensitive nature of discharging or refusing to hire an employee or applicant on account of his religious beliefs, the employer has the burden of proving that an undue hardship renders the required accommodations to the religious needs of the employee unreasonable.
In Trans World Airlines, Inc. v. Hardison, supra, the United States Supreme Court interpreted these EEOC guidelines. The court held that an employer must make reasonable efforts to accommodate an employee's religious practices unless those efforts resulted in undue hardship for the employer. An employer, however, is not required to deprive one employee in order to accommodate another, cf. Huston v. Local 93 International Union, 559 F.2d 477 (8th Cir. 1977) (), nor is the employer required to bear more than a minimal cost. The Trans World Airlines court reviewed the applicability of Title VII to the discharge of an employee whose religion required him to observe his Sabbath on Saturday. The employee held a position in which he had sufficient seniority to avoid working Saturdays; he then sought and received a transfer to a job in which he lacked sufficient seniority to retain his Saturday Sabbath. The union was unwilling to violate collective bargaining agreements governing seniority and the employer argued that had the employee been permitted to work fewer days, it would have been forced to pay substitute employees overtime wages. The Supreme Court ruled that reasonable efforts short of undue hardship to the employer were necessary to accommodate the employee's religious needs but decided that violation of the collective bargaining agreements and permitting fewer work days were not mandated.
The federal statute protects religious observances or practices. Trans World Airlines, Inc. v. Hardison, supra; McDaniel v. Essex International Inc., 571 F.2d 338 (6th Cir. 1978). It places the burden on the...
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...adverse consequence for failure to comply with the conflicting employment requirement. [ See Kenny v. Ambulatory Centre of Miami, Inc ., 400 So. 2d 1262 (Fla. 3d DCA 1981) (under the predecessor of Fla. Stat. §390.0111(8) and Title VII).] §8:108 42 U.S.C. §1981 42 U.S.C. §1981(a)-(c), as am......