The religious liberty wars come to the orchestra world

Even casual followers of employment law know that the issues around religious liberty and the employment relationship in the US are becoming more contentious; the Hobby Lobby Supreme Court decision and the case of Kim Davis, the Kentucky county clerk who refused to issue licenses for same-sex marriage, are only the most prominent recent examples. So it was likely just a matter of time before we had our own religious liberty case:

A professional South Carolina-based cellist claims she was terminated from her longtime job with the Asheville Symphony months after she was baptized as a Seventh-Day Adventist.

In a civil rights complaint filed in U.S. District Court for the Western District of North Carolina, Jacqueline Taylor states she was a tenured principal cellist with the group for 22 years and lost her job after requesting not to work on her Sabbath…

Taylor was baptized as a Seventh-day Adventist on Jan. 4, 2014. The faith observes the Sabbath during the 24-hour period from sunset Friday to sunset Saturday.

In March 2014, the orchestra failed to grant Taylor an excused absence or offer an accommodation for her “firmly held religious belief and practices,” the complaint states.

Subsequently, she was terminated and, according to the complaint, “lost a source of income, suffered irreparable damages to her professional career and experienced emotional distress.”

The symphony, in court papers and through its attorney Matthew Gilley, says it acted in accord with the law and couldn’t accommodate Taylor’s request without being put under an unreasonable burden.

In a letter written to Taylor’s agent on March 18, 2014, and filed as a court record, Whitehill says the orchestra respects her religious beliefs. But the time period she requests to be relieved of duties “encompasses two key rehearsals, including the dress rehearsal, and for concerts, the actual performance,” he wrote…

In the March letter, Whitehill wrote that the orchestra doesn’t have different shifts or the ability to swap positions, noting her request can’t be fulfilled “without significant and expensive hardship.”

“Ms. Taylor has worked very hard to be the principal of the cellists, but that requires that she be able to rehearse and perform with the cellists and with the orchestra,” Whitehill wrote in the letter.

Further on in the letter, he adds in reference to upcoming Masterworks concerts, “If Ms. Taylor is unwilling to attend the rehearsals on Friday and Saturday and perform at these concerts, then the ASO will have no choice but to seek a replacement for these concerts. Please also understand that if Ms. Taylor is unable to attend both Friday night and Saturday morning rehearsals on a regular basis for next season, the ASO will not be able to renew her contract for next season.”

I’ve not been able to access all of the court documents yet, but it appears that Taylor is claiming a violation of Title VII of the Civil Rights Act of 1964, which, among other things, requires an employer to “reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.”

The Asheville Symphony is a per-service orchestra with an annual budget of $1 million or so. The orchestra’s subscription concerts fall exclusively on Saturday evenings, and it appears from the employer’s response that at least one rehearsal, and perhaps two, for each concert fall between Friday sundown and Saturday sundown, which is when Seventh-day Adventists celebrate the Sabbath. It appears possible, in fact, that at least some of the concerts might infringe on that period as well.

This particular situation approaches the worst case, in that the religious exercise of the employee clashes so directly with the needs of the employer that there really is no “reasonable accommodation” that can be made, which is not always the case with Sabbath observance. “Reasonable accommodations” in those cases usually involve employees swapping shifts with other employees, or the employee finding (and paying for) a replacement. It’s entirely understandable that the orchestra’s management would regard the need to replace the principal cellist for two rehearsals – one of the them the dress rehearsal – for every concert as not a “reasonable accommodation.”

Interestingly, this is a situation in which the presence, or absence, of a collective bargaining agreement matters to the legal result. One of the keystone cases in this area was Trans World Airlines v. Hardison, decided by the Supreme Court in 1977, which was about a worker whose Sabbath observance couldn’t easily be accommodated under the seniority provisions of the collective bargaining agreement in place at the plant. In siding with the employer, the Court wrote:

It would be anomalous to conclude that by “reasonable accommodation” Congress means that an employer must deny the shift and job preference of some employees, as well as deprive them of their contractual rights, in order to accommodate or prefer the religious needs of others, and we conclude that Title VII does not require an employer to go that far.

It would appear that Jacqueline Taylor, the orchestra’s (former) principal cellist, will have a tough hill to climb in this case, although a court that doesn’t really try to understand the realities of the orchestral workplace could arrive at a result that would look workable in theory but would be very problematic in practice.

— Robert Levine

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