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US Pharm.
2007;32(8);49-53.
Is it a good
and noble thing to stand up for your beliefs and refuse to do activities that
you fully and honestly think are wrong, evil, or even sinful? What if your
refusal to do something negatively affects somebody else who does not share
your values--is it still okay to follow your conscience? Or, as a licensed
pharmacist who swears to uphold our code of ethics, do you have to look first
to the welfare of your patients even if doing so results in having to do
something you understand to be morally wrong? Another way of looking at these
dilemmas is to ask where the boundaries of law and ethics intersect and ask
which of these forms of behavioral conduct takes precedence. If the law
demands you do one thing and your ethical beliefs mandate you do something
else, you may find yourself in a massive moral/legal quagmire.
Like it or not, this exact problem
has infiltrated the practice of pharmacy and is widely examined in the mass
media regarding the issue of dispensing oral contraceptive medications. Some
of our kindred souls sincerely object to the practice of birth control. There
are those who will refuse to take part in any activity that supports or
furthers individuals who have no ethical difficulty doing whatever they want
to determine the kind of lifestyle they wish to pursue, including when or
whether to have a child.
This clash of principles is not
hypothetical. A series of cases and public discourse have made the issue of
conscientious objection to birth control by pharmacists an international
concern.1 This column has also focused on different aspects of the
debate.2 A recently decided legal case will help elucidate the line
between personal ethics and legal obligations.3
Facts of the Case
A pharmacist
looking for some extra work disclosed to a temporary staffing company that he
refuses to fill prescriptions for birth control medications. The pharmacist
was required to provide prospective employers with a written statement of this
fact because his state's board of pharmacy had limited his license in an
earlier case after a complaint was filed with that agency when he refused to
fill a birth control prescription for a young woman and refused to transfer
the prescription to another pharmacy as she requested.4
A Wal-Mart store in Wisconsin that
does a high level of pharmacy business was in need of a temporary pharmacist
in July 2005, and the staffing company recommended this individual. At this
location, the pharmacists and the pharmacy technicians share customer-service
duties, including assisting walk-in patients at the counter and answering
telephone inquiries from patients, physicians, hospitals, clinics, insurance
companies, and other pharmacies. The technicians enter data into a computer
system and verify insurance information, whereas the pharmacists check all
prescriptions and labels and hand the medication to patients while counseling
as necessary. Approximately 10% of this pharmacy's volume relates to
contraception prescriptions, inquiries, and associated matters.
Before working at this store, the
pharmacist provided a written statement to the acting pharmacy supervisor for
Wal-Mart, explaining his religious convictions and stating that he would
"decline to perform the provision of, or any activity related to the provision
of, contraceptive articles," including "complete or partial cooperation with
patient care situations which involve the provision of or counsel on
contraceptive articles."3
The pharmacy supervisor understood
these limitations to mean that the temporary pharmacist would not fill
prescriptions for birth control. To accommodate this limitation, the
supervisor relieved the pharmacist from "filling prescriptions for birth
control, taking orders for birth control from customers or physicians, handing
customer's birth control medication, and performing checks on birth control
orders." The supervisor also arranged for birth control prescriptions to be
sorted into a separate basket so that the pharmacist would not have to touch
the items and ensured that someone would be available to fill orders and
respond to customer inquiries concerning birth control.
Within a few days, the supervisor
realized that these accommodations still did not satisfy the pharmacist
because he refused to do anything related to patient care duties if it even
remotely involved birth control. For example, when the pharmacist answered the
telephone and the caller asked for a refill on a contraceptive prescription,
he would put the caller on hold and not tell any other pharmacy personnel that
there was a call waiting. When a patient came to the pharmacy counter and
asked for a birth control prescription refill or asked for advice about
anything related to the use of birth control products, the pharmacist would
just walk away and again not inform the other staff that someone was waiting
for assistance. He rationalized this behavior, stating that if he had to talk
to anyone asking about birth control, he would always counsel against using
contraception.
The supervisor then attempted to
mollify the pharmacist further by offering to have him assist only individuals
who came to the counter who were males or women not of childbearing age. Due
to the high volume of telephone traffic, the pharmacist would still have to
answer the phone. The pharmacist refused these further attempts of
accommodation unless walk-in patients and phone calls were first prescreened
by someone else to assure him that he would not have to deal with any birth
control inquiries. The supervisor tried to placate the pharmacist by agreeing
he would not have to talk to any walk-in patients but he would still have to
take phone calls and refer the objectionable ones to someone else.
On the fifth day of employment at
this pharmacy, it became clear that the pharmacist would not accept the
accommodations proposed by the supervisor. Therefore, the supervisor
terminated the pharmacist's employment. But the pharmacist refused to leave
the store, and he began to vocally preach to customers in the pharmacy area
that Wal-Mart was discriminating against him for his religious beliefs. The
police were summoned, and he was physically carried out of the building.
Remember the article published in the prior edition of this column? This
gentleman was quite familiar with this treatment because he had done the same
thing just a few months earlier in a pharmacy in Minnesota where he had worked
as a pharmacy intern. In that case, he was charged with (and convicted of)
criminal trespass and interference with legal process.
Lawsuit
The pharmacist
initiated a "pro se" (meaning he represented himself without an attorney)
complaint in a federal district court sitting in Wisconsin against the state
of Wisconsin, the temporary staffing agency that placed him in the pharmacy,
and Wal-Mart, claiming that his religious freedoms as established by the Civil
Rights Act of 1964 were being compromised.5 The claim against the
state was that it failed to adopt a Board of Pharmacy rule that would allow
him to refuse to participate in any activities involving any aspect of birth
control. The claims against the two corporate defendants were that they failed
to provide reasonable accommodations to protect his religious practices.
Upon the request of the three
defendants, the trial court judge dismissed the entire complaint. The judge
ruled that he did not have jurisdiction to hear complaints of this sort
against the state. He also found that the temporary staffing company did
nothing whatsoever to violate the civil rights of the pharmacist because it
did nothing but recommend him to Wal-Mart. The charges against Wal-Mart were
dismissed because the judge determined that it did act reasonably in offering
him extensive accommodations.6
Appeal
Unhappy with this
result, the pharmacist appealed his case to the United States Court of Appeals
for the Seventh Circuit. Once again, he represented himself without the aid of
an attorney. His primary claim was that a jury hearing the case could find as
a matter of fact that the defendants were not reasonable in refusing the
accommodations that he requested. The three-judge panel reviewed the
complaint, the undisputed facts, and the legal proceeding of the district
court and unanimously affirmed dismissal of all charges.
In doing so, it acknowledged that
the Civil Rights Act does require employers to make reasonable accommodations
for the religious beliefs and practices of its employees. However, the law
does not require employers to make accommodations that would create an undue
hardship. The court noted that an accommodation that requires other employees
to assume a disproportionate workload (or divert them from their regular work)
is an undue hardship as a matter of law. It went on to state: "Even assuming
that the technicians could promptly answer all incoming calls from customers
and health professionals, the diversion of technicians from their assigned
duties of data input and insurance verification would impose the undue cost of
uncompleted data work on Wal-Mart." The court concluded that relieving the
pharmacist from counter and telephone duties would have resulted in
substantial costs and shifted responsibilities to other employees who were
already working at capacity. On this point, the court stated: "Wal-Mart was
under no obligation to rearrange staffing and incur such costs to accommodate
an inflexible employee."3
The court also dismissed the claims
relative to the staffing agency that placed him at Wal-Mart. That organization
did not have anything to do with what the pharmacist claimed was
discrimination with respect to his religious beliefs.
As to the charge that the state of
Wisconsin discriminated against the pharmacist by not adopting a "conscience
clause," an administrative rule to protect pharmacists from discrimination by
employers who do not respect their religious beliefs and practices, the court
held that the state is immune to these kind of claims pursuant to the 11th
Amendment to the U.S. Constitution. The only exceptions are when the state is
the employer of the employee making the anti-discrimination claim or when the
state voluntarily consents to the jurisdiction of a federal court
proceeding. As
neither exception applied to this case, the state was also dismissed from the
lawsuit.
Analysis
Everyone is
entitled to act or refrain from acting according to their own beliefs, and the
law provides protection from those who discriminate against those beliefs or
practices. But the extent to which an employer must go to accommodate
religious expression is not unlimited and is never carried out to extremist
measures. In this case, a pharmacy manager practically bent over backward to
accommodate this pharmacist's desires to be free of any activities involving
contraception. But, said the courts, there are limits on how far an employer
must make those accommodations. Here, the pharmacist pushed the limits way
beyond the mandates of the law when he demanded that he be protected from any
inquiry, no matter how trivial, concerning any form of contraception.
It is highly doubtful that this case
would have come out any differently if the state had adopted a conscience
clause. Such laws also limit accommodations to those that are reasonable under
the circumstances of employment. Demands for altered work assignments that go
beyond reasonable accommodation will not be forced upon employers, including
those involved with health care services.
As pharmacists, we have an
obligation to provide professional service to our patients and others involved
with their care. Walking away from the counter or putting phone callers on
hold without asking someone else to provide service or answers is simply not
acceptable. It is easy to understand that a conscientious objector might think
that helping somebody to find others willing to help them is just as bad as
doing the acts they object to. But individual pharmacists cannot pick and
choose who they want to assist. The law will protect people who object to
certain practices, but if the objectors demand too many concessions from their
employers, they should not be surprised when the law will not step in to
mandate unreasonable accommodations. Indentured servitude no longer exists in
this country, and no one is forced to accept employment where practices they
object to go on. The better alternative is to find employment or conditions
where you will not be expected to do something unconscionable.
This is not meant to put down those
of our ranks who do not approve of some behaviors. It is just meant to educate
pharmacists on the extent that laws protect your beliefs. If you don't think
the law is right, work to change it, but not in the pharmacy where you want
the employer to change practices, and certainly not where you complain openly
to patients in the pharmacy when you have pushed the employer to the limits of
tolerating your demands. Even more so, do not be so belligerent that the
police have to come and haul you away. As this case points out, your soapbox
is on the public streets, not in a pharmacy that you do not own.
References
1. See, e.g.,
Pharmacist Resists Illinois Rule on Contraceptives. Available at:
www.foxnews.com/story/0,2933,166426,00.html published on August 22, 2005 and
accessed June 19, 2007; Should Pharmacists' Moral Codes Trump Professional
Duties? Some Pharmacists Have Triggered Legal Battles By Refusing to Fill
Contraceptive Prescriptions, at
abcnews.go.com/Health/LegalCenter/story?id=701109 published on May 3, 2005 and
accessed June 19, 2007; and World Health Organization: Oral Contraceptives and
Menopausal Therapy at www.abortionbreastcancer.com/news/050831/index.htm (with
no publication date), copyrighted in 2005 and accessed on June 19, 2007. See
also Vock DC. FDA ruling puts pharmacists in crossfire, Pew Forum on Religion
and Public life; Religion News, September 6, 2006,
pewforum.org/news/display.php?NewsID=11242. Accessed June 19, 2007.
2. Vivian JC.
Intervention or unwanted intrusion? US Pharm. 2006;31(8):90-94.
Available at:www.uspharmacist.com/index.asp?show=article&page=8_1827.htm.
Accessed June 19, 2007. Vivian JC. Obstruction of process, trespass, and
disorderly conduct. US Pharm. 2007:32(7):57-59. Available
at:www.uspharmacist.com/index.asp?show=article&page=8_2069.htm. Accessed June
19, 2007.
3. Noessen v.
Medical Staffing Network, Slip Op No 06-2831 (May 2, 2007), 7th Cir Ct
App, 2007 US App Lexis 10687. The individual involved in the case published
here last month is the same as the one involved in this case.
4. Forster S. Reprimand
advised for pharmacist; beliefs, duties clash; he refused to fill birth
control order, JS Online, Milwaukee Journal, March 1, 2005.
5. Title VII 42 USC §
2000e-2.
6. United States
District Court for the Western District of Wisconsin. No. 06-C-071-S. John C.
Shabaz, Judge. Noesen v. Medical Staffing Network, Inc., 2006 U.S.
Dist. LEXIS 36918 (W.D. Wis., June 1, 2006).
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