Here are two cases of apparent religious discrimination exercised by employees of the drugstore chain Walgreen’s. I’d like to know what readers think about the legality of these situations, which will probably be decided this fall by the Supreme Court.
According to several sources, including NBC News and USA Today, a Walgreen’s employee in Wisconsin refused to ring up condoms at the checkout counter, and a pharmacy employee at a different Walgreen’s refused to give a women her prescribed birth-control pills—both on religious grounds. Click below to see the two stories:
Click to read about Condomgate:
Below is a tweet by Nathan Pentz, who went to a Walgreen’s in Wisconsin and was embarrassed when the cashier wouldn’t ring up some condoms:
Nathan Pentz tweeted earlier this month that his partner, Jess, went to buy condoms at a store in Hayward because she forgot her birth control. He said when she went to the checkout, the cashier said he would not ring up the condoms, because of his faith.
Pentz also tweeted the couple’s customer service response to Walgreens, which said the employee “embarrass[ed] [her] in front of other customers because of her reproductive choices.”
The thread goes on, and includes an eyewitness who saw the whole thing:
We went to Hayward to get some groceries and a stop at @Walgreens because we had left Jess birth control at home. As Jess was checking out, cashier John told her he couldn’t sell her the condoms. “Oh I got them from over there.”
“We can, but I won’t because of my faith.” 1/x
— Nate Pentz (@natepentz) July 3, 2022
This refusal is apparently company policy:
In a statement to NBC News, a Walgreens spokesperson said its employee’s actions did not violate company policy.
“Our policies are designed to ensure we meet the needs of our patients and customers while respecting the religious and moral beliefs of our team members,” the spokesperson said. “The instances are rare, however when a team member has a moral or religious conviction about completing a transaction, they are required to refer the customer to another employee or manager on duty who will complete the transaction, which is what occurred in this instance.”
But what if there is no other cashier on duty? Sometimes I go to Walgreen’s to get milk on my way to work, and at about 5:30 there is only one cashier on duty. Or what if every employee refuses services on those grounds?
Now I suppose you could say that the employee was simply exercising his religious freedom. More on that below, but NBC News notes this:
Incidents of faith-based objections in business have received more attention in recent years. In the most prominent example, the Supreme Court ruled in 2018 in favor of a cake-maker who objected to baking a cake for a gay couple, though the court did not address the larger issue of whether businesses can refuse service outright on religious grounds.
In February, the court agreed to hear the case of a web design firm in Colorado that objected to providing services for same-sex marriages. That case will be heard in October.
Pillgate: This incident is even worse because it involves duplicity on the part of a pharmacy. Click to read:
TikTok user Abigail Martin said she has been using birth control for six years. She said she called in her prescription on a Saturday, only to receive a response saying that she was out of refills.
After waiting on hold and receiving no response, Martin said she went into a Walgreens location to talk to the pharmacist.
In a recent TikTok, Martin said the woman at the pharmacy, who she said was wearing two crosses around her neck, looked Martin up and down before saying she couldn’t refill the prescription.
“I said, ‘You won’t refill it or you can’t refill it?’ And she goes, ‘You just need to call your provider,'” Martin said.
After getting confirmation from her provider and a four-day delay on her prescription, Martin said she called Walgreens again and had her prescription filled.
The four-day delay was apparently imposed by Walgreen’s itself, who said the pills were “out of stock.” (That was surely a lie.) The woman who refused to provide the pills apparently does this regularly.
Here’s Martin’s TikTok describing the incident (she has nearly a million followers). Do watch it (she begins to break down at the end—the wages of discrimination):
@abigailmartiin i am so beyond pissed at our country right now. #roevwade #prochoice #womensrights #birthcontrol #vanlife
Below is Walgreen’s policy, which, as you see, allows religious people to refuse to sell certain items BUT the religious person must find someone immediately to sell the item. Pentz was rung up by a manager, but Martin wasn’t even informed of the company policy. They should at least force the woman wearing the crosses to tell the customer that they will find someone to fill the prescription. And what is Walgreen’s doing delaying the prescription for four days and lying about it being “out of stock”? Company policy should not allow lying.
Our policy allows pharmacists to step away from filling a prescription for which they have a moral objection. At the same time, they are also required to refer the prescription to another pharmacist or manager on duty to meet the patient's needs in a timely manner.
— Walgreens (@Walgreens) June 25, 2018
Now my question, and the question to the readers is “Is this kind of religious-based discrimination against customers/items legal”? After all, the First Amendment guarantees one the right to practice religious freedom. But that is not an unlimited permission: teachers, for example, are not allowed to pray in class because it violates the religious freedom of those who hear it, who might feel coerced. And there are “public accommodation laws”, as in Colorado, which forbids businesses serving the public to discriminate against customers, even on religious grounds.
That Colorado law was the reason why the Supreme Court had to decide a related case, when bakers at the Masterpiece Cake Company in Lakewood, Colorado, refused to bake a wedding cake in 2012 for a legally married same-sex couple, Charlie Craig and David Mullins.
The couple filed a lawsuit and the state court decided in favor of Craig and Mullins. As Wikipedia notes, “the cake shop was ordered not only to provide cakes to same-sex marriages, but to ‘change its company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers.”
Masterpiece appealed, and the appellate court upheld the state court decision: there could be no discrimination against customers, even though the bakery claimed that not making any wedding cakes, which they decided to do, cost them 40% of their business.
The next step was an appeal to the Supreme Court, which ruled, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (the vote was 7-2 with Ginsburg and Sotomayor dissenting), to uphold Masterpiece and strike down the appellate court decision. But the grounds, which did include First Amendment considerations, were not that the bakery discriminated against the customers’ homosexuality. Rather, they ruled that the Colorado Civil Rights Commission itself had shown hostility towards religion. I quote from the court’s majority opinion; bolding is mine:
The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.
The Commission was deemed “not neutral”, ergo a violation of the First Amendment.
Note that the court did not rule whether an individual business serving the public (including Walgreen’s in the cases above) could discriminate among customers based on the faith of the business’s employees. That, said the court, would be left to a future decision.
And that decision will be made this fall, almost surely in favor of allowing businesses to discriminate on religious grounds. Here’s the case that will be decided this fall:
The Supreme Court granted certiorari to 303 Creative LLC v. Elenis in February 2022, which again dealt with Colorado’s anti-discrimination laws as they apply to public businesses. The case concerns a Christian web designer who seeks to make wedding announcement websites for heterosexual couples only. She fears punishment under Colorado’s anti-discrimination law and thus aims to block the law as a violation of her First Amendment rights.
Does anybody doubt that the highly religious Supreme Court will allow this kind of discrimination? And in the case of Walgreen’s or other businesses, it could well rule that if Walgreen’s owner was religious, the entire company would not have to sell birth control to anyone based on religious grounds. They wouldn’t of course, as the public would simply boycott the company to death (there are already calls to boycott Walgreen’s). But this is possible for smaller businesses, and wasn’t settled in the Masterpiece case.
But suppose, for instance, that one’s “religion” allowed other forms of discrimination, say against sex or ethnicity? That would not be allowed under any construal of the Constitution, as it would constitute illegal practice. Why, then, would discrimination on the grounds of religion be permissible? Would restaurants be able to refuse to serve gay customers?
My own view is that if you serve the public, you have to serve them equally, and public good takes precedence over the religious beliefs of a business owner or employee. (Remember, we have a conflict between two constitutional “rights” here.)
As to whether a single employee, as in the condom case above, should be able to decline service but immediately get someone in the business to provide that service, I don’t know. There is no discrimination by the business, but by an employee, and in the end there was no discrimination in sales. Still, can’t a company require its employees, as a condition of employment, to serve all customers equally? Can it fire someone who doesn’t? Or does that requirement violate the First Aendment
These are issues that are legally unresolved, but will be this fall. And, I’m afraid, most of us won’t be happy with the decision.
The infamous Masterpiece Cake Shop:
h/t: Ginger K.
Remove the hot button issue of contraception from the debate. Would it be allowable for a customer service person to refuse to sell meat because of their religious beliefs?
I suspect the true answer is that employees should sell everything their employers stock, and if they choose to object to certain items then they should not be employed. There’s a belief that people can hold religious convictions at no cost to themselves, but there are personal costs.
#1 and #3 are both confused about the facts here. Walgreens is honouring religious objections among employees provided customers are not unduly inconvenienced and the company doesn’t lose a sale as a result. The employee is not demanding from her employer an accommodation it doesn’t already provide.
The aggrieved parties spoiling for a fight here are the customers who argue that Walgreens ought not to permit the accommodation. Meanwhile, the company does continue to serve ALL the public.
Hospitals do not compel an operating-room nurse to participate in abortions provided the nurse informs her employer of her objection in time to staff the OR with non-objecting nurses to get through that day’s list, and does not abandon a specific named patient needing care. The difference I suppose is that this accommodation is totally invisible to the hospital’s patients/customers. But it is a routine practice in all places where abortion is legal.
Whatever. The Courts will decide however they decide. There is, like abortion, little point in arguing what they ought to do based on one’s hostility to religion.
As it happens, there have been cases in the UK in which Muslim supermarket employees have refused to sell bacon or pork.
The first commandment for many “Christians,” aka American Taliban, is
Thou Shalt Be An Asshole
This has been the case for decades, got amped up when the Moral Majority self-proclaimed themselves the Better People, and continues unchallenged today.
My own complaint against Walgreens is that they fail to stock any kind of toilet paper other than the overly padded brands which, any plumber will tell you, pose a danger of clogging up the toilet. Maybe the store’s retailing decision here reflects a religious commitment to going soft on the rear end, as one way to honor the commandment cited above .
Herr doktor Freud will see you now, Jon. 🙂
If a business serves the public, it should have to serve ALL the public. If you are a religious fundamentalist then don’t take a job that is against your religious beliefs.
In the case of the web design company, the owner isn’t serving “the public.” He is only offering his services to heterosexual couples who are getting married.
Speaking as an atheist and (classical) liberal, I think he is wrong to do so. I would certainly not use his services and would encourage others to take their business elsewhere as well. I do not, however, see a role for the government in this case. The only thing the government can do is use force to either make him violate his conscience or close his business.
As an individual, it would be immoral for me to use force against the owner of this business to achieve either of those goals. It is no more moral if the government does it.
And the Heart of Atlanta Motel wasn’t serving “the public”; it was only offering its services to white Christians.
Care to distinguish the situations? Or (like some others who have coopted the classical liberal label) do you think the Civil Rights Act of 1964 was misbegotten?
To the extent that the Civil Rights Act eliminated government discrimination, e.g. school segregation and access to federal programs, it was necessary and important. Where it violated the freedom of association of individuals and businesses[*], it overstepped the federal government’s constitutional authority.
Again, at the end of the day, government is nothing but force. The usual argument goes like this: If you don’t think it is moral for an individual to put a gun to another person’s head to force them to behave in a certain way, it doesn’t magically become moral if a group of people calling themselves ‘the government” (or the Mafia or the Gypsy Jokers, etc.) do it. Preventing murder, rape, and robbery? Defensive force is justified. Compelling someone to make a cake they don’t want to make? Are you really willing to pull the trigger in that case?
[*] There is a long discussion to be had about incorporation and whether accepting the benefits incurs other responsibilities, but PCC(e) frowns on long screeds in the comments.
The Civil Rights Act of 1964 wasn’t needed to strike down school segregation or other forms of discrimination by state actors. SCOTUS had the authority do so itself under the Equal Protection Clause of the 14th Amendment — and did so as to school desegregation a decade before the CRA was enacted, in Brown v. Board of Education (1954).
Private discrimination in places of public accommodation certainly had an impact on interstate commerce, so was well within congress’s enumerated Commerce Clause authority to prohibit.
And whence arises this “freedom of association of individuals and businesses” of which you speak? I’ve looked through the pocket edition of the US constitution I keep with me and can find no more textual support for it than for the “right of privacy” observed in Roe v. Wade and struck down in Dobbs.
I take it you would have been cool with this non-textual “freedom of association” serving as the basis to perpetuate Jim Crow for another hundred years — or to perpetuate other forms of private discrimination, such as the restrictive covenants in land deeds that kept negroes and Jews and anyone else except white Christians out more desirable neighborhoods for a couple centuries?
Here’s a good discussion of the constitutional right to freedom of association: https://www.mtsu.edu/first-amendment/article/1594/freedom-of-association. Freedom of association includes, of course, the freedom not to associate.
Contrary to your suggestion, I would use freedom of association to destroy Jim Crow, and would do so without using force. The Civil Rights Act was required to explicitly prohibit state governments from supporting segregation. It was not required to allow the free market and private individuals to eliminate private segregation.
I notice you ignored my question. Are you personally willing to point a gun at a baker to require him to make a cake?
How exactly would you do that, Patrick, given that, in the 90 years between the end of Reconstruction and the CRA ’64, “the free market and private individuals” had failed to put a dent in Jim Crow?
As for your question, I think it hyperbole. I would be willing to use precisely the same amount of “force” to prohibit businesses that are engaged in public accommodation — businesses, that is, that take advantage of the infrastructure provided by the people (whether hotels, restaurants, butchers, bakers, or candlestick makers) — from discriminating on the basis or race, sex, religion, ethnicity, or sexual orientation as I would be willing to use to enforce any other duly enacted law..
“As for your question, I think it hyperbole. I would be willing to use precisely the same amount of “force” to prohibit businesses that are engaged in public accommodation — businesses, that is, that take advantage of the infrastructure provided by the people (whether hotels, restaurants, butchers, bakers, or candlestick makers) — from discriminating on the basis or race, sex, religion, ethnicity, or sexual orientation as I would be willing to use to enforce any other duly enacted law..”
Far from hyperbole, my question cuts to the heart of what a government does. It uses force. Let’s take the example of the wedding cake baker. He chooses not to bake a cake for a particular person for religious reasons. That is simply exercising his right not to associate, no force is involved. Now a government agent comes in and says that the baker must make the cake for that person. The baker refuses. Still no force. The government agent then attempts to arrest the baker. There is the first use of force — against the baker. If the baker defends himself, the government agent will escalate to the eventual use of lethal force.
This is exactly what you advocate when you say “There ought to be a law….” Far from hyperbole, it is a factual description.
So, are you willing to kill a man for not baking a cake? If you support these laws, you are.
I’m no more willing to kill a man for not baking a cake than I am for exceeding the speed limit, or for public intoxication, or for disturbing the peace.
I am, however, willing to see a fine imposed on such people.
There are likely towns in the US where Walmart or Walgreens is the ONLY pharmacy. If a religious objector refuses services, then the person likely has no other way to get the medication (or whatever) they need.
If someone cannot sell something to someone for religious reasons, then that person should not be in sales. Especially considering that the material is present in the store and that the store has rules about how those transactions must take place.
If a business sells something and has it in the store, then the business or the businesses representative does NOT have the ability to make a decision on who to sell or not sell a product to.
The government does this all the time. Whether they want to or not, a business may not sell alcohol to someone under 21. End of story.
Your example isn’t analogous because, in the case of alcohol, the law has been argued and decided that 21 is the legal age of consent to purchase, possess, and use it. We can argue about where the line should be, but we all recognize that there is a level of maturity before which one cannot enter into contracts or consent to participate in certain hazardous activities.
I strongly support boycotting companies that allow their employees to refuse service in this manner. I equally strongly oppose the government getting involved in private business like this. What I would really like to see, especially post Roe, is more options for mail delivery of prescriptions and contraceptives.
And when states that prohibit abortions make the receipt through the mail of such prescriptions and contraceptives a felony — what then, Patrick?
Last summer I read The Man Who Hated Women: Sex, Censorship and Civil Liberties in the Gilded age by Amy Sohn. It was a wild ride. Will we see the emergence of a new Comstock, setting up stings and personally going in to homes and arresting women and men for receipt of ‘obscene’ materials? I would hope not, but. I was also wondering what your thoughts were on the Mann Act and whether it could be used to stop women from travelling for health care. I believe the original use included an ‘travelling for immoral activity’ or something similar provision.
Well, then I guess I’ll become a felon, if that’s what it takes to provide women with reproductive choice. They might be able to block a few companies sending contraceptives, but if a group of us volunteer to forward the packages, they’ll never know which deliveries to check.
Government is not divinely ordained. When the people that make it up act immorally, they earn our resistance.
You’ll do nothing of the sort. Dr. Henry Morgantaler went to prison for openly doing abortions illegally but at least he was making good tax-free money off it. Before you become an unpaid volunteer felon, I hope you will listen to your wife and children telling you to stop talking crazy shit.
If you have no one in the world depending on you and want to risk prison for some pregnant strangers who will cheerfully rat you out in return for immunity, knock yourself out. Don’t forget that everyone else in the abortion business is making money. Why should you be the volunteer mule?
The state isn’t interested in punishing women after they’ve already had an abortion. Their target is the industry and its enablers. Take them down and you prevent hundreds or thousands of abortions. Being a human shield is pointless if Shieldguy is actually the target.
Time to install self-checkout scanners. Remove the morality police from the equation altogether. Which raises another scenario: What happens if you are denied purchase of condoms at a self-checkout scanner? Then it’s obviously a corporate policy and a whole ‘nuther thing altogether.
If it were a corporate policy not to sell condoms then the item would not be stocked in the store and it would be a non-issue regarding self-checkout scanners.
This is the simplest solution all around, although it is pretty clunky. As far as i know, a pharmacist must handle a prescription drug, but if they object on doing the actual ringing of the cash register on religious grounds, then they can hand over the bagged Rx to the customer and direct them to the self-check-out. What is critical is that the customer does get to complete the purchase, even if they are short-staffed.
In at least some chain retail chains, condoms are kept on a shelf behind glass and under lock and key, since they are frequently shoplifted. (Hell, even when I was a kid, condoms were sometimes subject shoplifting by underage boys with great expectations but no fake IDs.) And most birth control pills have to be obtained from the pharmacist window rather than off the shelf.
So I’m not sure self-checkout scanners would provide a panacea.
The key question here is does Walgreens have a duty to stock and supply these items in the first place? In the UK, a “pharmacy” must be registered and does indeed have a legal obligation to provide certain services. So they’re at fault if they don’t (though which employee they assign the task of doing so to is up to them).
We would all accept a vegan owning a shop that doesn’t sell meat, and presumably we’d all accept a kosher or halal butcher not selling pork, wouldn’t we? It’s generally up to a business to decide what services it offers to the public. So, unless the pharmacy had a legal obligation to supply certain items, then there is no problem if they choose not to.
How is that the key question? A duty or not, Walgreens does stock condoms and birth control pills. Employees of Walgreens refused to sell these items to customers.
It’s the key question because, in general, there is no obligation on a store to sell any item. If McDonalds just decided that today they will not sell hamburgers (even though they had plenty in stock), just because, then they are within their rights to do so. Aren’t they?
Paraphrasing Prof. Coyne above, the key question is that if a business serves the public, does it have to serve customers equally? Furthermore, does public good takes precedence over the beliefs of a business owner? Or an employee?
Yes, they should serve all customers equally. But the identity of the customer was irrelevant here; any other customer would have met the same response.
Does “public good” require a shop-keeper to make a sale? No, it doesn’t. There’s no general obligation on shops to sell stuff.
I agree with you that shop-keepers do not have an obligation to sell stuff. However,I don’t think we’re referencing the same article. I am commenting on the WEIT July 24, 2022 • 9:15 am post. It is about Walgreen employees refusing to sell condoms and birth-control meds because of their religious beliefs. My apologies for the misunderstanding.
But if they don’t have an obligation to sell condoms and birth-control meds in the first place then their reason for not doing so is irrelevant.
If I go into a kosher butcher and ask for pork, and they say they do not supply pork owing to their religious beliefs, then that is their right.
As an analogy, what if a cashier at a bookstore refuses to ring up the purchase of a book that describes and endorses contraception because of a religious objection. Would this be allowed by the Supreme Court? My guess is yes. If so, employees become censors.
Related to this, would it be legal for an employer to require a prospective employee to sign a contract that requires the employee to sell any and all products stocked in the store regardless of religious or other objections? Failure to do so would result in immediate termination.
That is the appropriate solution. Inform people before they are hired that they are expected to sell all items the company offers. If they can’t do so in good conscience, they shouldn’t take the job.
If a company voluntarily chooses to accommodate employees’ beliefs, however irrational, they are taking the risk of losing customers.
There is no need for government involvement in any of these decisions.
Immediate termination (or not hiring) can be a costly thing these days. I just got back from my local pharmacy. Two people running it, and they were really strapped since they were super busy.
In the UK, generally, yes, an employer can indeed expect an employee to fullfil all the normal tasks of their job.
An employee can ask that an employer make reasonable adjustments to accommodate their religious beliefs (there have been cases, for example, of a supermarket cashier not wanting to handle alcohol for religious reasons), but the duty on the employer is only to make “reasonable” adjustments. If the request causes difficulty for the employer then they can decline the request.
A religious top health authority could decide not to release the vaccine against monkeypox.
Weird. Once, in Florida I was walking through one of these stores. Some packages looking like chocolade candies caught my eyes. Looking closer I saw to my amazement that they were bullet cartridges for firearms. Probably any kid could buy them, or stick them in his rear pocket.
To me, this is not exercising religious freedom, it’s forcing religious beliefs on strangers.
Worse, forcing religious beliefs on six-year olds, which is brainwashing and in my view a crime.
With all this controversy around religion tearing the country apart why does not a god of some kind make an appearance? Come on gawd dammit make an appearance!
She hasn’t got the balls to do that.
I dunno about the whole legality thing (I’m disgusted by the employee’s refusing to give birth control – just another example of Why Religious Faith Sucks).
But…I definitely stumbled over TikTok user Abigail Martin’s video, where she started out “I’m a woman with a uterus.”
At first I thought it was a bit of a snarky joke on her part. But then I quickly realized, no, it was serious woke-speak.
My god, is this really how women are supposed to describe themselves, by reference to their uterus?
It really feels like we are living in some Ben Stiller-written dystopian-future comedy.
I took “woman with a uterus” to mean Ms. Martin had not had a hysterectomy, rather than “woke-speak.”
Hmm…if if that was the message, it doesn’t actually seem like a particularly necessary caveat, does it? Especially if she’s talking about herself looking for contraceptives.
It suggests in referring to myself as a “man” I should say something like “Man with a working c*ck” or some such thing. 😉
What if, after the cashier refuses to ring up an item, the customer just walks out with it without paying?
If s/he’s Black in a Blue city, nothing. Although if her boyfriend comes behind the cash and tries to rough up the clerk he might get stabbed. In any normal place, shopkeeper’s privilege applies and the thief could be held until the police arrive.
Theft is theft. Even atheists have to pay for stuff.
How is it shopliftiing? They offered to pay and their payment was rejected.
If the payment is rejected by the seller’s agent, the contract is not fulfilled and the goods remain the property of the seller. I’m sure you know that.
If you put your house up for sale and I make an offer which you reject, I don’t thereby own your house, do I.
The goods don’t become theirs until the transaction is completed. There is no federal law that obliges a business to sell you something even if you offer them “legal tender”. This came up the other day on this very website with the man paying for an item with hundreds of pennies.
In these case, it didn’t even get to that point: the cashier refused to make the sale before payment had even been offered.
I’m surprised that it took all the way until No. 12 for the obvious to be suggested (by j a higginbotham). And I find Leslie MacMillan’s response incomprehensible. As well as pointlessly sexist.
If I were that customer, I would take out the requisite amount of cash, place it on the counter in front of said clerk, and walk out. If there were other customers in line, I would LOUDLY announce what I was doing, and why. I would also pull out my phone and video the entire encounter for later use.
Now, I understand. While I ALWAYS carry a small trove of $10, $5, and $1 bills (having been caught out w/o necessary change too many times), not everyone does that. Maybe they only have plastic. In that case, I would video myself OFFERING payment to the clerk, again, loudly for the benefit of witnesses, and then walk out without paying. Daring the clerk to call security. What, precisely, would be the charge in those circumstances? Failure to FORCE the clerk to accept payment?
Yeah, you’re the civil lawyer around here, BF, but if I recall my 1L contracts class correctly, the pharmacy is offering condoms for sale, and the customer accepts the offer by tendering the money (which is to say, there is an exchange of “consideration”). Hence, once the customer puts the money on the counter, there is a tacit consummated contract. In any event, I can’t imagine any business seeking to prosecute a customer who does so for shoplifting. Matter of fact, I double-dare them to.
Plus, what’s the religious zealot working the counter gonna do, refuse to put the money in the register ’cause it’s got condom cooties on it?
Ken, I guess I wasn’t clear. I agree with you absolutely; my point WAS to “double-dare” them.
In the larger scheme of things, this confirms my suspicion that when Alito said that Dobbs bore no implications for other rights, he was completely full of shit–just as much as Barrett and Goresuch were in their confirmation hearings.
They are most DEFINITELY coming after Griswold and Lawrence. This isn’t Alito’s court–it’s Thomas’s court.
He can probably rest easy that they’ll leave Loving alone. For a while, at least.
I got your point, BF, and was agreeing with it. I guess I was the one who should have been more clear in that regard. (The “yeah,” was meant to signal agreement; the “but” was meant to signal that I was stepping outside my field of expertise into contract law.)
I don’t know about US contract law, but in the UK:
A shop putting stuff on shelves with prices amounts only to advertising “I might be willing to sell this stuff for this sort of price”.
A customer approaching a cashier is offering a contract: “I offer to buy this stuff, and I am willing to accept the price you have advertised”. That itself does not form a contract.
No contract is in force until the cashier/shop-keeper then does something that amounts to accepting this contract, such as ringing up the total (thus effectively striking the bargain).
Brujo was proposing to steal the condoms, not leave money on the counter for them. Of course the pharmacy would not accuse shoplifting if the customer left adequate cash.
No, Brujo wasn’t:
It was j a higginbotham who was advocating theft.
Yes, Brujo was. In his third paragraph he said that if he didn’t have cash he would loudly offer his credit card and then if it was refused he would walk out without paying.
Sounds like just the type of customer I want more of.
Optionally, the customer could simply place the money on the counter and walk out.
This may be different between Britain and America, but AIUI here (UK), pharmacists have a professional standards association, which they must be a member of “in good standing” in order to practice as a pharmacist. And refusing to fill a prescription for a non-medical reason would be an act of professional irresponsibility that would quite likely get them struck off the register of pharmacists (probably on a second occurrence ; warning on the first). Subsequent unemployment. Join our beloved ex-PM in a ditch.
Hmmm, I’ll have to remember to ask [trainee pharmacist friend], if the French club ever re-starts.
I suppose if I worked at Walmart I would appreciate a policy that allowed me to refuse to sell AR-15s to people due to my moral (I can’t call them religious) convictions. I wonder if there have been any such cases?
(OK, just saw that Walmart doesn’t sell them anymore. So strike Walmart and replace it with some other store.)
If you take the job, you do the job. A cashier rings things up. That’s the job. Don’t take the job if you won’t do it with every product sold at the store you work for.
Abigail Martin exhibits a patience I do not have for this kind of religious stuff imposed on people.
I agree. I’m more willing to be accommodating if an employee has a personal, medical, or mental health reason than I am for an objection on principle. A cashier with a dog phobia, say, who asks that other employees check out the person buying dog-related items, or a victim of violence who can’t bring themselves to handle the firearms being sold. This, though, can blend in to a Matter of Conscience.
When it comes to religion a religious employee might be able to bend the law by claiming that faith is a disability. I don’t really see them doing that.
After Kennedy, I don’t know that this is the case anymore. Any attorneys want to weigh in and quell my fears?
Question for all religious people everywhere, to which I have never gotten a straight answer: Why is it when someone does it to you, it’s discrimination, but when you do it to someone else it’s exercising your religious freedom?
L
All clashes of rights are framed that way, Linda. Nothing special about religion.
Since Walgreen’s is a private company, the US constitution wouldn’t come into play in such a scenario, though civil-rights statutes and ordinances would. This is why it took a federal statute — the Civil Rights Act of 1964 — to end the system of private discrimination in places of public accommodation that went by the name “Jim Crow,” even though, under the constitution, SCOTUS could, and did, prohibit de jure discrimination by “state actors,” such as public employees.
The arrogance of these religious zealots thinking they can dictate the private sexual practices of a business’s patrons. They may not have God on their side, but they’re likely to have the theocratic wing of SCOTUS — and, unlike the former, the latter actually exists and involves itself in the affairs of human beings.
Ken, I would think the Constitution’s Commerce Clause applies here, but I haven’t seen you or anyone else in this forum mention it. Your thoughts?
The Commerce Clause is in Article I of the Constitution and is, thus, an enumerated power belonging to congress. SCOTUS has upheld congress’s authority to enact civil rights laws under the Commerce Clause (this was the holding in Heart of Atlanta Motel, Inc. v. United States). But federal courts have no authority of their own under the Commerce Clause to strike down discrimination by private actors in the absence of such congressional legislation.
Were it otherwise, the nation would have had no need for the Civil Rights Act of 1964.
Thanks!
This whole thing is a cluster. Unfortunately, I think that the Supreme Court will rule that people are allowed to exercise their conscience in the workplace—meaning that this type of discrimination will continue. While I believe in the first amendment, I do not believe that first amendment protections are being violated in the first place. Store workers are free to *not* work at establishments that require them to sell condoms, contraceptives, sex toys, etc. No one is being forced into compulsory speech or acts. If you don’t want to sell condoms, or tampons, or mascara to men, work somewhere else—such as a candy store. This is a slippery slope that has no end.
But the Supreme Court will allow this sort of discrimination. One partial remedy is for businesses who discriminate to be required to post their policies on such matters in a public place—like gas stations are required to post their prices on signs large enough to see from the street. Of course, this isn’t a solution, but it might prevent a customer from having to deal with an embarrassing situation at the cash register.
Like many other commenters, Norman, I think you have missed the point. The employer is willing, by written policy, to accommodate the employee’s wish not to handle contraceptives as long as the customer can still be served by someone else. They have made a business decision in the interests of staff harmony and retention. There is no conflict with the employees. No customers are being discriminated against on the basis of their religion or on any other ground..
The conflict is generated by a trouble-making customer who wants to compel the company to end its policy of accommodation. This will benefit no one except to fuel the customer’s sense of entitled grievance, who should get a life.
I would be very surprised if Walgreens didn’t win this one.
That seems not to have been the case, Leslie, with regard to the two incidents at Wallgreens recounted in Jerry’s post above. What you propose works only if the employer has a policy of always having at least one employee on duty who is prepared fill birth control prescriptions and/or sell condoms. Are you aware of the Wallgreens chain enforcing a requirement that all its stores have such a policy in place?
PS — I don’t believe there is any “case” yet for Wallgreens to win. The case that’s pending before SCOTUS next term, 303 Creative LLC v. Elenis concerns a graphic designer who wants to do wedding announcements, but not for betrothed gay couples. That case may or may not have some impact on the Wallgreens-type situation, depending upon how broadly SCOTUS rules.
>I don’t believe there is any “case” yet for Wallgreens to win.
Oops. Missed that. Got imprinted on the headline of the post but I agree the issues are different between this employee-accommodation dust-up over a class of products and the case where the employer-business wants to deny service to a class of customers.
Every time I’ve gone into a Walgreens the past few years, there’s one cashier in front, maybe one in beauty (usually only when the cashier in the front has 4+ people in line), and 1 in pharmacy. So if the cashier up front won’t ring up the disputed item because of their beliefs, what then? Pay for the other stuff there, put it all in the cart and then hope one of the other cashiers are available to ring up the one item the first one wouldn’t? Or, put it all back in the cart and march to the opposite end of the store to get everything else rung up again by a different cashier? It’s always fun waiting for a manager to (after putting out 2 or 3 fires) finally get to the front while the line of customers gets longer and longer in case they end up being the ones to finish up your transaction.
Besides, wouldn’t that type of behavior by the denying cashier piss off the other ones who now have their workload increased (with the added bonus of having to deal with the pissed off person that the first cashier created in the first place)? I don’t see it going over well with other employees who have to pick up the slack. Grocery stores with different departments you might be able to get away with that. Not some small drug store or dollar store, though.
I don’t see the problem as long as another salesperson can accommodate the customer’s needs. Similarly, I would have no problem with a Quaker, say, refusing to sell a customer a gun based on their religious beliefs as long as some one else at the store could sell the gun. In either case, the inconvenience to the customer doesn’t stack up against respect for the salesperson’s conscience. I’m guessing the Supreme Court will take a similar line of reasoning.
“In either case, the inconvenience to the customer doesn’t stack up against respect for the salesperson’s conscience.”
No? That’s just your opinion (and it may well be the opinion of SCOTUS). But sorry, why should I have any respect for a salesperson’s “conscience”. What does that even mean? Conscience is such a mutable word, there is nothing consistent or meaningful in the word to make a case that it’s more important than an inconvenience or that I need to respect it. Inconvenience is a physical reality in the real world (like having to wait 4 days for a prescription refill); respect for someone’s conscience because someone says that’s their conscience is absurd.
“respect for someone’s conscience because someone says that’s their conscience is absurd.”
And yet this has been the refuge of every conscientious objector in this country since the Revolutionary War.
Refuge? You mean for people like me?
See you around, pal.
I was replying to Mark R. and certainly meant no disrespect for conscientious objectors by the word “refuge.” I simply meant that respect for individual conscience is the basis of this country’s long tradition of honoring conscientious objection.
It was Mark R who said “respect for someone’s conscience because someone says that’s their conscience is absurd”. mirandaga seemed to me to be defending the idea of respecting somebody’s conscience.
Mark R does seem to have later decided that some forms of conscience are deserving of respect and some are not. Personally, in this case my respect is diminished because, if your conscience tells you condoms are illegal, you shouldn’t take the coin of the company selling them. I am sceptical of the sincerity of the shop assistant.
“respect for someone’s conscience because someone says that’s their conscience is absurd.”
And yet the principle you call “absurd” is the basis for this country’s respecting the individual conscience of every conscientious objector since the Revolutionary War.
So, I see you rephrased your comment as to circumvent Jerry’s reply.
Regardless, conscientiously objecting to kill a person in a conscripted and active war is a lot different than (to me, I know this is personal) objecting to stopping a pregnancy (as if that’s a given) in the first place. Total disconnect. Your comment also suggest that conscientious objectors were just rubber-stamped: you conscientiously object to war and killing?, fine, go have fun. Here’s what a simple googly revealed re. the Revolutionary War.
In addition, many would not take the oath of loyalty, considering this as part of their witness for peace. The Revolutionary authorities responded by imprisoning conscientious objectors, occasionally for as long as two years. Some active opponents to the war were handled roughly.
I doubt “conscientious objectors” in other conscripted wars were handled more gently. So whatever the authorities may be, when it comes to conscripted war, they have no respect for someone’s conscience.
I see you have clarified your position somewhat compared to the post that mirandaga responded to.
You said “respect for someone’s conscience because someone says that’s their conscience is absurd”. How was mirandaga to know that you were excepting conscientious objectors? Could you give us a list of the cases where we should respect peoples consciences and the cases where we don’t need to?
My personal position is to afford respect until it has been shown not to be deserved. I don’t think it’s deserved in the case where somebody objects to contraceptives on religious grounds but is still prepared to work for a company that sells them. That strikes me as hypocrisy.
It is a careless argument and I was misleading. List will be forthcoming. My point is simply: humans give too much credence to conscience. That’s an opinion and I’ll stick with it.
Employment tribunals address exactly that question of what’s on the list of what must be respected, which will vary for different workplaces. Ordinary atheist customers don’t need to trouble themselves: it’s not about them.
The civil rights laws in the relevant jurisdiction (Wisconsin in this case) govern the “reasonable accommodation” the employer must make for the employee’s “creed” (as Wisconsin puts it.) That process of accommodation determines what is “deserved” in the workplace. The customer’s views about the employee’s bona fides simply don’t count here. The customer can’t compel the employer to hire only people who don’t request accommodations (for creed, disability, etc.) even if that would make the shopping experience more convenient.
And if X states that not only does their religion prevent them selling contraceptives it also prevents them referring the person to someone who does? Not entirely hypothetical as it is an argument put forward by anti-abortion doctors.
Oew.. so… if I work in book store I should be able to refuse to sell a bible because of the firth, violence, sexism etc.?
I had a friend who worked in a bookstore and suffered agonies every time he had to ring up some crappy New Age alternative mystical magical pseudoscience book. It took real effort to refrain from grabbing the customer by the shirt collar and lecturing them on science while reiterating “.. and this is garbage — GARBAGE.”
As an atheist, he couldn’t claim a religious objection (“… this is the work of SATAN”) and it turned out that these books were all big sellers. So he had to lump it, which is undoubtedly correct.
Zooming out to look at the big picture, I call your attention to this NYT piece by Linda Greenhouse, in which she predicts that this SCOTUS is set on allowing, even encouraging, Christian teaching to be woven into public policy (might be behind the paywall, sorry).
Religious Doctrine, Not the Constitution, Drove the Dobbs Decision
https://nyti.ms/3znndnQ
My concern about this kind of action is that MANY women are put on ‘birth control’ for reasons OTHER than preventing pregnancy and NO one should make these deadly assumptions based on ignorant fantasies: https://spoonuniversity.com/healthier/13-reasons-women-take-birth-control-other-than-pregnancy-prevention#:~:text=Here%20is%20a%20list%20of%20reasons%20why%20women,Birth%20control%20can%20help%20to%20…%20More%20items
If they don’t care about abortions to save the life of the mother — even if the fetus will die anyway — I have trouble imagining they’d care about medical reasons for birth control.
Who doesn’t care about abortion to save the life of the mother?? Only a few backward countries like Honduras, Nicaragua, and Madagascar prohibit abortion even when the mother will die without it.
You may be confused by Alexandria Ocasio-Cortez who claimed to be afraid to travel in parts of America where she would be left to die if she had an ectopic pregnancy. Absolute disinformation.
The Idaho GOP? They overwhelmingly voted against including a life of the mother exception in the platform.
Show me a law. Any idiot can write a platform.
I am aware from Pew Research on attitudes toward abortion that not everyone agrees that maternal life ought to be an exception. This just means that some people ought not to be listened to by legislators, and aren’t.
Hi Leslie,
The post I was responding to said:
To which I replied with an example of a group of people who don’t care about abortion to save the life of the mother. Not just any ‘idiot’ group. The ruling party of a state that will undoubtedly pass a full ban very, very shortly. Nothing would please me more than to be wrong, and for you to be correct. But I live out here in the west, and smell the winds of change.
Some hospitals in states with strict new laws are asking doctors to wait until rupture to treat an ectopic pregnancy. Others are asked to delay misarrange care until no fetal electrical activity can be detected, taking on average 9 additional days of suffering and medical risk (very severe) to the mother. This is happening, and it isn’t good.
I won’t dispute your no-doubt well-founded concerns, Yazikus. You live out there, I don’t. But Chapter 6, Idaho Code, even as amended by the trigger provisions of 2020 specifically states that nothing in Chapter 6 is intended to apply to the management of ectopic pregnancy. Since my main objection was to AOC’s disinformation about it, I’ll leave it at that.
I am disappointed to learn that the platform committee voted against a woman’s life. I remain optimistic that it’s just political posturing and that no U.S. state will enact a law that puts it in the same bucket as Nicaragua and Madagascar.
“This just means that some people ought not to be listened to by legislators, and aren’t.”
Not in Idaho…that state is quickly becoming a right-wing crazed theocratic/militia state. It will be no surprise if a law is passed that mirrors their platform.
No laws (as yet) but at least a few Republican politicians have argued for No Abortion, No Exceptions. That includes Herschel Walker, running for Georgia senate.
My guess is that some Republicans will argue the point hoping to shift the Overton Window and “compromise” on whatever they wanted in the first place.
I see a clear difference between the cake shop and the pharmacy issues. The pharmacy has the items on hand, for the sole purpose of selling them to customers. It should be a condition of employment that the employees be willing to sell the items in inventory to customers. If I were an Orthodox Jew, I would not seek employment in a BBQ restaurant, then refuse to serve the pork ribs.
The cake shop, as I understand it, was willing to sell the cakes on hand to anyone who came in. They did not already have cakes decorated with Satan sodomizing Jesus or whatever, but were refusing to sell them to certain classes of people.
The cake people were being made an example of, by activists who only entered the store because they had a goal of asking the baker to produce something that he would refuse, and justify their case.
Of course, the activists might have approached other bakers or artists, in ways that might have generated less popular sympathy. A Black baker might not have been willing to make a fancy cake for a Klan meeting. That would not be a religious objection, but a justifiable moral one. In my opinion.
Jerry asked us to ponder a couple of questions which I don’t see directly answered anywhere.
1) “I’d like to know what readers think about the legality of these situations,”
A: It’s legal until a judge says it isn’t But it’s a customer service/HR issue, not a legal problem.
Naturally the company shouldn’t endorse lying about the birth control pills being out of stock but you don’t give us any evidence that it was a lie, other than than the customer’s version of events. If the employee is undermining the accommodation policy Walgreen’s needs to respond, given that the other employee seemed to be aware of it. If it was me, I’d complain directly to Walgreen’s, in writing, not make a weepy TikTok video. No business wants to alienate customers, especially due to a rogue employee violating a written employment policy for her own ends.
2) “But what if there is no other cashier on duty? . . .Or what if every employee refuses services on those grounds?”
A: Walgreens policy ought to cover this possibility. In the Pentz case, a manager rang in the sale. If I was the boss, I’d write the policy to stress that the accommodation extends only insofar as the customer’s lawful needs can still be met. The employer has the right to expect that the workforce on duty can do the stated functions of the job, which includes customer service in a way that does not harm the interests of the employer. If the employee is a regulated profession, like a pharmacist, then there may be additional obligations imposed by the regulator. Again, this is a customer service/HR issue. There is no legal right to buy anything the store sells. But it is not in the company’s interests to let all its employees refuse to sell its stock to willing buyers.
3) “Still, can’t a company require its employees, as a condition of employment, to serve all customers equally?”
A: That depends entirely on civil rights law in Wisconsin, which every employer must know cold.
Note first that here the objecting employee was indeed serving (or in this case refusing to serve) all customers “equally”. He was not selling condoms to some customers and refusing others based on their race, sex, creed (religion), national origin, disability, sexual orientation, or a few other criteria which are all prohibited grounds for discrimination against members of the public under Wisconsin law. :”Wanting to buy condoms” is not a prohibited criterion for refusal of service.
https://dwd.wisconsin.gov/er/civilrights/discrimination/publicaccommodation.htm
So, with that out of the way, let’s look at the rights the employees have:
https://dwd.wisconsin.gov/er/civilrights/discrimination/
The same criteria prohibited for discrimination in providing a service to the public are also prohibited grounds for discrimination in the workplace (plus a few others.) For creed, and others that can impair the ability to do the job, the employer must make reasonable accommodation.
What is reasonable depends on case law in Wisconsin which of course I know nothing about. Presumably Walgreen’s ran their policy past their lawyers who gave the opinion that it was reasonable. If the employer tried to rescind the reasonable accommodation policy because of customer complaints from Pentz and others about it, I predict the religious employees would win if they made a complaint to whatever employment tribunal hears these in Wisconsin. The company would have to develop a communication plan to deal with the resulting boycott stressing that its policy, formerly voluntary and based on goodwill for staff harmony in a religiously observant part of the country, was now mandated and out of its control.
They should be transparent. Have a little sign adhered under their name tags that says “Because of my beliefs, I will not sell you X, Y, or Z items.”
Or, if you really wanna screw with these people who insist on not selling you condoms, tests, etc., go crazy with shopping (at a place where you know the cashier is a “won’t sell” person. When you get to the register and you’ve got over $100 worth of stuff, put the item on the counter and when they say that they won’t sell to you, just say you don’t believe in others policing my purchasing habits and then decide not to buy what you put up there & leave. They’ll have to put all that shit back (and get it voided out, which will show how much sales were lost in the report at the end of the day, which will get brought up later).
My economics teacher told me about something like that that happened in Galveston or some other tourist city down here in the late 90s. They got super strict with parking and the tickets were getting outrageous. You had tourists getting hundreds of dollars worth of stuff and then going back to their vehicles to see the tickets on their windshields. They marched right back in the stores in anger and returned their items. When businesses began to lose out because of city rules, they brought it up at city council. Parking laws were eased up and the angry returns stopped.
Clever, but your guerrilla activity doesn’t change the company’s legal obligation to make reasonable accommodation to an employee’s creed. If the company’s accommodation policy was causing major staff disruptions and customer resentment, stirred up by shit-disturbers like you, the company might come to believe that it had to rescind its policy because it was now damaging its business, and hope for the best. All clerks had to sell everything or be fired. Yay! You won!
But not so fast. Employees can fight, too. The religious employee could complain to whatever state agency adjudicates accommodation/discrimination complaints in the workplace. The employer would have to respond with details of why it changed the policy, arguing the accommodation had become unreasonable. The tribunal might side with the employee, finding that the new sell-everything policy was not adequate reasonable accommodation. It could order the company to reinstate the old policy, and reinstate the employee if it had fired him.
(Note that what was reasonable accommodation in Wisconsin might not be reasonable where you live, even if your state or province used identical wording in its law. But this case occurred in Wisconsin.)
Now what? The company would communicate to its customers and staff the reason for the policy reversal—the government says we must—and would undertake to make it work for all who are willing to co-operate. The employee would still not be selling contraceptives.
And the company would ban you from the store for the disruption you caused with your little staff-abusing stunt at the checkout counter. Some customers just aren’t worth the trouble.
Unless your religion or belief system–in writing–stipulates that no one is allowed to touch or mess with birth control in any capacity (beyond vague references in the bible folks can point to if they know where to look), then it’s just a preference. I don’t like cigarettes. Watched too many people in my family die from them. I hate the smell. I hate that folks buy them. But if I’m a cashier and they ask for them, I’m going to sell them if they have the proper ID.
I’m not going to hold them back and explain that since they’re killing themselves slowly and I’d feel like an accomplice if they died, and because I don’t believe in assisted suicide, I’m not going to sell them.
Cashier doesn’t want to sell the product? Have ’em do another job in the store. Be in photo, be in stocking, whatever. People get things for a variety of reasons, and then you get the old “won’t sell you birth control now let me lecture you about going to hell because of premarital sex,” pharmacists not doing their job. People get things for a lot of reasons. If they want to make it clear, they can have a sign on the door saying “our employees can refuse to sell you something if it conflicts with their beliefs” and be done with it. Employees knew that was the case; customers didn’t. So yeah, go into a place, waste your time shopping and not allowed to get everything you need. Not a case of being low on money, just a gatekeeper at the register. What is the customer supposed to do? Drive to another location, waste more time looking for the item, hoping the next cashier doesn’t have a problem with it? And if you’re in a small town where the driving distance is time-consuming and annoying, it’s just gatekeeping with a sense of moral superiority. That doesn’t need to be there. Someone can’t or won’t do the job, ensure they have another spot they can work instead. Of course the customers get pissed–most of them are working multiple jobs like everyone else and already trying to shop in between shifts and can’t afford to waste time. On those days, some gatekeeper is gonna send you over the edge. Yes, employees should be treated well and paid well, but should reserve the moralizing for off the clock.