Religious Employer May Fire Worker for ‘Inappropriate’ Speech

Friday, May 17, 2002

Page 3

Religious Employer May Fire Worker for ‘Inappropriate’ Speech—S.C.

By a MetNews Staff Writer

A religiously affiliated hospital did not violate public policy by firing an employee for talking about his faith at work, the California Supreme Court ruled yesterday.

“Although there is a clear, constitutionally based state policy against religious discrimination in employment,” Justice Carlos Moreno wrote for a unanimous court, “...there is also a countervailing policy rooted in the free exercise of religion clause of the First Amendment to the United States Constitution, as well as the comparable California constitutional right...that permits religious organizations to define themselves and their religious message.”

The ruling overturns a judgment of $6,300, plus an attorney fee award of more than $155,000 under the private attorney general statute, in favor of Terence Silo against CHW Medical Foundation. The foundation is a nonprofit public benefit corporation organized by three orders of Catholic nuns, and operates hospitals as part of the orders’ religious mission.

Silo was a file clerk at the Sacramento facility prior to his 1993 firing. His termination notice said that, despite three prior warnings, he had continued to violate the hospital’s anti-proselytizing policy by “preaching” about his religious conversion experience.

Silo originally sued under both the Fair Employment and Housing Act and the public policy against religious discrimination. Sacramento Superior Court Judge Faith J. Geohegan denied the motion, holding that because the foundation was a nonprofit public benefit corporation and not a religious corporation, there was a triable issue of fact as to whether FEHA’s religious exemption applied.

The foundation raised the exemption again on appeal, but the Third District affirmed. The Supreme Court, however, sent the case back two years ago after it ruled in Kelly v. Methodist Hospital of Southern California that the religious-entity exemption was broader than the Court of Appeal had held.

On remand, the Court of Appeal ruled that the religious exemption—which has since been narrowed by statute—applied, but that the foundation was liable for terminating Silo in violation of fundamental public policy.

But Moreno said that where the employer is a religiously affiliated organization, public policy allows it to retain control of the religious activities of its employees during the hours of their employment. This is true, he said, regardless of whether the task for which the employee was hired is religious or secular.

“Although article I, section 8 of the California Constitution expresses a fundamental policy against religious discrimination in employment and requires reasonable accommodation of employees’ religious practices, the state and federal free exercise and establishment clauses give religious organizations some degree of latitude to choose their employees in order to define their religious mission,” Moreno wrote.

The case was argued in the Supreme Court by Stephen W. Parrish of Foley & Lardner for CHW, Jeffrey A. Berman of Sidley Austin Brown & Wood for a group of religious organizations supporting CHW as amici, and Anthony J. Poidmore of the Sacramento firm Matheny, Sears, Linkert & Long for Silo.

The case is Silo v. CHW Medical Foundation, 02 S.O.S. 2352.