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Brian L. McDermott and Brett E. Buhl, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The Seventh Circuit Court of Appeals' first religion-based case in December 2009 began when the Milwaukee County sheriff invited a religious group to speak at the sheriff's department leadership conference.  Milwaukee Deputy Sheriffs' Ass'n v. Clarke (7th Cir. 2009).  A group of officers took offense to the Christian-focused presentation.  When the sheriff allowed the same group to speak at a number of mandatory employee meetings, the officers complained about the group.  When the presentations continued, two Milwaukee County sheriff's deputies, along with their union, sued under 18 U.S.C. § 1983, alleging a violation of the Establishment and Free Exercise Clauses of the First Amendment.  The district court granted the plaintiffs' motion for summary judgment on their Establishment Clause claim and the defendants appealed.

The Seventh Circuit Court of Appeals agreed with the lower court's decision and concluded that the Milwaukee County sheriff violated the Establishment Clause.  The court held that the group's presentations during mandatory employee gatherings gave, at the least, the appearance of endorsement by the sheriff's department.  Furthermore, the Seventh Circuit held that the invitation to the religious organization did not create a public forum for free speech purposes.

Four days later, on December 8, 2009, the Seventh Circuit Court of Appeals issued its second religion-based ruling of the month.  Patterson v. Indiana Newspapers, Inc. (7th Cir. 2009).  James Patterson and Lisa Coffey were employed as editorial writers for The Indianapolis Star.  Coffey resigned from the paper and Patterson was discharged.  Coffey quit after the paper wanted to reassign her to the copy desk.  Patterson was discharged for alleged deficiencies in his writing-a persistent problem of making factual errors that required the newspaper to print corrections and apologies.

Both Patterson and Coffey filed suit against The Indianapolis Star alleging that the newspaper engaged in systematic discrimination against "traditional Christians" who hold the religious belief that homosexual conduct is sinful.  Specifically, Coffey and Patterson maintained that The Indianapolis Star's top editors opposed public or workplace expressions of religion and discriminated against those who were opposed to homosexual conduct.  The plaintiffs claimed that The Indianapolis Star published "hordes of news articles" designed to portray homosexuality in a positive light, "softened" its editorial opposition to same-sex marriage, promoted employees who were homosexuals or "homosexual sympathizers," sought to purge the news and editorial operations of the paper of "traditional Christians," and otherwise exhibited animus toward Christians who opposed homosexual conduct.

The Seventh Circuit Court of Appeals ruled that plaintiffs could not prevail on their claim of religious discrimination grounded on their self-identification as "traditional Christians" who were opposed to homosexuality.  The Seventh Circuit affirmed the district court's decision to grant summary judgment to the newspaper.

The court determined that neither plaintiff had established a prima facie case of discrimination, in that they were unable to prove they were meeting the newspaper's legitimate performance expectations or that a similarly-situated employee who did not share their religious beliefs was treated more favorably.  The court focused on the deficiencies in Patterson's performance, documented over a long period of time, as the basis for his termination.  Similarly, Coffey's abuse of overtime in violation of the newspaper's rules, continuing even after the problem was brought to Coffey's attention, merited any alleged adverse treatment.

Employers should take note of the increased impact that religious beliefs have on the workplace.  Employee training on religious discrimination must be updated to reflect the broad array of religious beliefs, with an underlying focus on tolerance and equality. 

Brian L. McDermott and Brett E. Buhl are attorneys in the Indianapolis, Indiana, office of the national labor and employment law firm of Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and can be reached at 317.916.1300 or brian.mcdermott@ogletreedeakins.com or brett.buhl@ogletreedeakins.com.