# Appendix — Sports & Health Club, Inc. v. Minnesota ex rel. Gomez-Bethke

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0276%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1015

## Text

85-532.

No.

IN THE

Supreme Court of the Cnited States
OCTOBER TERM, 1985

SPORTS AND HEALTH CLUB, INC., d/b/a ST. LOUIS
PARK SPORTS AND HEALTH CLUB, et al.,
Appellants,
Vs.

STATE OF MINNESOTA, By MARILYN E. McCLURE,
and her successor, IRENE GOMEZ-BETHKE, Commis-
sioner, DEPARTMENT OF HUMAN RIGHTS,

Respondent.

On Appeal from the Supreme Court of Minnesota

APPENDIX TO THE APPELLANTS’
JURISDICTIONAL STATEMENT

CLYDE F. ANDERSON
STEVEN D. JAMAR
2250 IDS Center
80 South Eighth Street
Minneapolis, Minnesota 55402
(612) 338-0661

Of counsel:
LAURA S. UNDERKUFFLER

1985—Northwest Brief Printing Co., 3010 2nd St. No., Minneapolis 55411—588-7506

APPENDIX INDEX

Appendix A—Opinion of the Minnesota Supreme Court,
TU NE Rc a 6S slewe ev ieee ethene bees A-1

Appendix B—Findings of Fact, Conclusions of Law,
Orders and Memorandum of the Hearing Examiner
GE PAE SBD 6 ko che bee dsneecneepes A-72

Appendix C—Letter dated May 9, 1984, from Hearing
Examiner with Corrections to April 26, 1984, Find-
ings, Conclusions, Order and Memorandum ....A-205

Appendix D—Order of the Hearing Examiner Certify-
ing classes and directing notice to potential class
members, dated April 27, 1984 .............. A-212

Appendix E—Orders and Memorandum by Hearing
Examiner dated May 1, 1984, regarding Motion to
Stay Effect of Hearing’s Examiner’s Orders..... A-227

Appendix F—Order of Minnesota Court of Appeals
dated May 18, 1984, denying Motion to Stay Effect
of Hearing Examiner’s Orders ...............: A-238

Appendix G—Order of the Minnesota Court of Appeals
dated May 21, 1984, granting Motion to Stay Effect
of Hearing Examiner’s Orders ............... A-241

Appendix H—Order of the Minnesota Supreme Court
dated August 29, 1984, Granting Appellants’ Petition
for Accoterated Review .. *s* *”

°For instance, the Clubs use a “book” system for sales. Some of the fea-
ures of the “book” system imposed are: “cold” calls to solicit potential
members; a requirement to obtain a certain number of “referral” ap-
pointments (for prospective members) each week; requirements for
the logging of “cold” calls and “referral” appointments; that each
service of a member be recorded; that lists of clients and prospects be
updated; that the members’ programs be periodically updated; and
recording of the periodic weighing and measuring of the members.

A-7

spirit” and “disciplined lifestyle,” which the owners main-
tain are more important than a technical background in
saies, exercise and/or nutrition.

Appellaiits assert the sincere belief that their practices
were proper and lawful exercises of the rights of free
speech. free exercise of religion and freedom of association
guaranteed by the First Amendment to the United States
Constitution and Article 1, Section 16 of the Minnesota
Constitution. This assertion forms the main contention in
this case

Despite all the discrimination allegations asserted in
this case Sports and Health has employed, and continues
tc employ, married persons, male and female unmarried
persons, and divorced males and females of various races.
The Sports and Health clubs have also employed, and con-
tinue to employ, persons of various religious faiths—Jews,
Roman Catholics, Protestants of various denominations,
and others—so long as such other persons are not of-
fended by the cwners’ faith, are not antagonistic toward
the Christian gospe! and will comply with management’s
work rules in a cheerful and obedient spirit.

(1) We address first the pending motions to dismiss.

(a) The Commissioner contends that Sports and
Health’s appeal from the hearing examiner’s orders (C4-
84-771) should be dismissed with respect to liability and
class certification because the appeals are not from orders
fr.m which an appeal may be tuken since they are not
final within the meaning of Minn. R. Civ. App. P. 102.03.
We need not address the issue in this case. We choose to
grant discretionary review of the issues raised by Sports

A-8

and Health’s appeal because this is one of those “appro-
priate cases where the interest of justice requires imme-
diate review of liability determinations before the issue of
damages has been litigated.” In re Commodore Hotel
Fire & Explosion Case, 318 N.W.2d 244, 247, n.2
(Minn. 1982), see also Sigler v. First American National
Bank 325 N.W.2d 136, 137, n.1 (Minn, 1982). Sport
and Health’s appeal is before this court because we granted
accelerated review. Ruie 118 of Minn. R. Civ. App. P.,
providing for accelerated review, incorporates by refer-
ence the discretionary review found in Rule 117. The is-
sues have been fully briefed in ar adversarial proceeding.
The interest of justice, in deciding all issues arising from
the hearing examiner’s order in cne proceeding, compels
us to the conclusion that discretionary review should be
granted, and, accordingly, the Commissioner’s motion
to dismiss is denied.

(b) Sport and Health contends the Commissioner's ap-
peal (Case CX-84-936) should be dismissed because the
Commissioner did not file her brief within 30 days as re-
quired by Minn. R. Civ. App. P. 131.01. In fact the Com-
missioner has never filed the re!ator’s brief in that appeal.
However. the Commissioner did brief issues she raised in
her appeal in her brief responding to the brief of Sports
and Health in appeal C4-84-771. We note that Sports and
Health’; dismissal motion is technically meritorious. Minn.
P.. Civ. App. P. 142.02. However, this court did grant the
Commissioner’s petition for accelerated review and con-
solidation of her appeal (CX-84-936), with Sports and
Health’s appeal (C4-84-771) and ordered counsel on oral
argument to be prepared to discuss the substantive issues
raised in each appeal. In fact, counsel did discuss all issues

A-9

on oral argument, and, pursuant to leave of the court,
Sports and Health did file a brief responding to issues
raised by the Commissioner. Because no rights have been
prejudiced, and since the parties have been given an op-
pertunity to brief and argue the issues raised by the Com-
missioner, we will grant discretionary review of those is-
sues in the interest of justice. Jn re Commodore Hotel
Fire & Explosion Cases, supra.

(2) Turning to the merits, we address first Sport and
Health’s contention that the findings of fact, conclusions
of law, and orders of the hearing examiner are “unsup-
ported by substantial evidence in view of the entire record
as a whole.” Minn. Stat. § 14.69 (1982). In examining
that contention, we are not permitted to substitute our
view of the evidence for that adupted by the hearing ex-
aminer if substantial evidence in the record supports his
decision. See Dakota County Abstract Co. v. Richardson,
312 Minn. 353, 356, 252 N.W.2d 124, 126-27 (1977).
The test for determin:ng whether a specific finding is sup-
ported by substantial evidence is whether the evidence,
considered in its entirety, is (1) more than a scintilla of
evidence: (2) such that a reasonable mind might accept
it as adequate to support a conclusion; or (3) more than
“some evidence” and more than “any evidence”. Taylor v.
Beltrami Electric Cooperative, Inc., 319 N.W.2d 52. 56
(Minn. 1982). Where the evidence is conflicting or more
than one inference may be drawn from it, the findings of
the hearing examiner must be upheld. City of Minneapolis
v. Richardson, 307 Minn. 80, 88. 239 N.W.2d 197. 202
(1976).

In a contested case such as this, the Commissioner
must make a prima facie showing of discrimination as de-

nT

A-10

fined by Minn. Stat. 363.03 (1982). The employer then
has the burden to establish legitimate nondiscriminatory
reasons for the actions taken. The Commissioner then has
the burden of establishing that the reasons stated are a
mere pretext for discrimination. Hubbard v. United Press
International Inc., 330 N.W.2d 428, 441, n.12 (Minn.
1983).

In this case there are numerous charging parties In
examining the claim of each charging party, the hearing
examiner meticulously followed the procedure outlined in
Hubbard. Several of the charges alleged that Sports and
Health in its hiring practices violated the statute by mak-
ing inquiry as to religious beliefs and practices and mari-
tal status. Other charges alleged that in promotion practices
the same statutorily prohibited conduct occurred, while
still others charged their employment was terminated be-
cause of their marital status and refusal to partake in re-
ligious classes at the place of business. Finally, one com-
piainant, who was of the Jewish religious faith, alieges
that she was forced to give up her membership in one of
thie clubs run by Sports and Health because Sports and
Health, through its insistence upon displaying fundamen-
talist Christian religious literature in the literature racks
and on the walls of the sports club, engaged in conduc:
that was offensive to her. In considering each complaint,
the hearing examiner found a prima facie showing of dis-
crimination. Sports and Health then presented evidence in
an attempt to establish a legitimate and nondiscriminatory
reason for the action taken. Sports and Health proterred
evidence that the employees who were terminated had
trouble with the “book system” (the basis of the clubs’

"A charging party is a person who claims he or she was illegally discrimi-
nated against by the employer.

A-11

membership solicitation efforts); that they had a bad and
uncooperative attitude, that they had violated rules such
as the use of intoxicants on the premises or the unauthor-
ized “borrowing” of money from certain club funds; or
that they did personal business while on the job, con-
trary to company rules; as well as other claims of rule vio-
lations. In each instance, the hearing examiner held that
Sports and Health had advanced legitimate and nondis-
criminatory reasons for the discharges. Sports and Health
likewise offered evidence articulating reasons why certain
complainants were not hired such as their rejection of re-
ligion, their “bad attitude”, or that their personality was
not such as to demonstrate an ability to get along with
people.” The hearing examiner found that these reasons
for Sports and Health’s actions were generally legitimate.
However, in considering both the claims of promotional
discrimination and hiring discrimination, the hearing
examiner found the articulated reasons for the actions
taken were pretextual and the real reasons related to the
employees’ or applicants’ religious beliefs, or lack thereof,
and/or their marital status. Had we been the fact finder,
we might have arrived at a different conclusion in some
of these cases, but the record is replete in demonstrating
that each of the charging parties had been questioned
about marital status, religion, and, indeed, in several in-
stances “preached at” by officers of Sports and Health
at the time of their termination or application denial. We
recognize that in order to make informed and intelligent
employment decisions, employers must be permitted some
leeway to question an employee or applicant about his

*One or two of this group, after being queried about attitude toward
religion or marital status, did not pursue an employment application.

A-12

or her background, upbringing and perspective.’ In this
case, however, Sports and Health, in some instances, went
far beyond legally permissible bounds in questioning ap-
pl'cants and employees. The evidence clearly substantiates
the findings of the hearing examiner that questioning
concerning religious beliefs, practices and concerning mar-
ital status permeated the employment process and were
the true reasons for the actions taken by Sports and
Health.”

(3) We come then to the crucial issue: do the findings
of fact, conclusions of law and orders of the hearing ex-
aminer unconstitutionally infringe upon Sports and
Health’s freedom of speech, free exercise of religious be-
liefs. and freedom of association as provided by the First
Amendment to the United States Constitution and Article
1, Section 16 of the Minnesota Constitution?”

(a) We address first a preliminary matter. The Com-
missioner, in her brief to this court, for the first time in
this litigation raises the issue of whether Sports and
Health has “standing” to raise the freedom to exercise re-
l'gion issue. It is well settled that an issue not litigated be-
lcw may not be asserted for the first time on appeal. Mat-

*See e.g. 29 C.F.R. § 1604.7, 1605.3, 1606.6 (1984).

Justice Peterson, in dissent, argues that the discrimination claim predi-
cated upon questioning of employees and applicants on cohabitation of
unmarried persons is not a ground under the statute for finding dis-
crimination. Even though we agree with his contention, yet the record
appears clear to us that Sports and Health went far beyond permissible
bounds in questioning employees and applicants in areas clearly pro-
hibited by the act.

“Both parties to this action have discussed in briefs and argument these
three claims together. Although they are three distinct and separately
guaranteed rights, the exercise of free speech in this case was pursuant
to a deeply held religious conviction and the associational freedom thai
was exercised by Sports and Health was motivated by the same deeply
held religious beliefs.

A-13

ter of Welfare of K.T., 327 N.W.2d 13, 16-17 (Minn.
1982); Republic National Life Insurance Co. v. Lorraine
Realty Corp., 279 N.W.2d 349, 355 n.2 (Minn. 1979).
However. an objection to want of “standing” goes tc the
existence of a cause of action, is jurisdictional, and may
be raised at any time, Matter of Welfare of Mullins, 298
N.W.2d 56, 61 n.7 (Minn. 1980). In this case, however.
we conclude that Sports and Health (the corporatiun) has
“standing” to assert its constitutional arguments. The is-
sue here is not whether a corpuration has “standing” to
liiigate, but rather whether Sports and Health has
“standing” to assert the first amendmeut as a defense to
the claims of discrimination. The Commissioner’s conclu-
sory assertion that a corporation has no constitutional
right to free exercise of religion is unsupported by any cited
authoritv. Though not precisely on point, the United States
Supreme Court has permitted employers, corporate as well
as individuals, to assert first amendment rights. See e.g.
First National Bank of Boston vy. Bellotti, 435 US. 765
‘1978 )O >O

A-30

Owens believes, not surprisingly, that a person’s religion—
if any—‘“permeates, motivates, and directs every thought
and action of that person’s life,” private and public.

It is undisputed that no person will be initially employed
in or subsequently promoted to a manageriai position un-
less he or she is a “born again” and “growing” Christian.
Unlike non-managerial employees, attendance at Bible
study sessions is mandatory. Owens’ Scriptural basis for
this standard is in St. Paul’s words of counsel to members
of the church in Corinth:

Do not try to work together as equals with unbelievers,
for it cannot be done. How can right and wrong be
partners? How can light and darkness live together?
How can Christ and the Devil agree? What does a
believer have in common with an unbeliever?

2 Corinthians 6:14-15.

The religion-related standards for managerial employees
are the most pronounced and conspicuous of those found
by the examiner as violative of the anti-discrimination
statute. Common sense and common law, however, should
make them the least subject to sanction. All employees, to
a lesser or greater extent, have a fiduciary relationship to
their employers, Restatement (Second) Agency §§ 1, 2, 13
(1957), with a duty to act in the interests of the employer
and not as an adversary. This principle has been greatly
diminished in the decades following the enactment of mod-
ern labor relations laws, but it is most significant that
those statutes uniformly exempt managerial employees

—

astic will find the scales tipped in his favor. And a man of second-rate
ability with enthusiasm will often outstrip one of first-rate ability without
enthusiasm.” (emphasis in original); The Dale Carnegie Course 66-67
(Dale Carnegie Publishers, Inc. 1955).

A-31

from adversarial collective bargaining relationships. The
federal Labor-Management Relations Act, 29 U.S.C. §
152 (1976), in its definition of “employee,” expressly ex-
cludes “any individual employed as a supervisor.” Although
the statute makes no mention of “managerial employee,”
it is construed, a fortiori, to exclude them as well. See
N.L.R.B. v. Bell Aerospace Co., 416 U.S. 267 (1974). As
stated in N.L.R.B. v. Yeshiva Un'versity, 444 U.S. 672,
682 (1980), both exemptions grow out of the same con-
cern: that an employer is entitled to the undivided loyalty
of its representatives. The Minnesota Labor Relations Act
does not contain a specific definition, but in Minn.
Stat. 179.16, subd. 2 (1984), provides that “[s]upervisory
employees shall not be considered in the selection of a
bargaining agent.” Paul W. Goldberg, the present director
of the Minnesota Bureau of Mediation Services, and his
predecessor, Peter E. Obermeyer, confirm that units of man-
agerial employees have never been certified for collective
bargaining purposes with a private employer in Minnesota.
The common sense of these statutes, and common sense
without statutes, is that no business person would wish or
should be required to be associated at the critical man-
agerial level with a person who rejects the basic operation-
al objectives and philosophy of the business enterprise.

The point just stated can be illustrated by the hypo-
thetical example of two not-so-hypothetical business cor-
porations that sell books and other publications but that
have radically different business ph'losophies. Corporation
A operates stores selling predominantly religious publi-
cations, openly displayed in sections bearing such descrip-
tive signs as “Bible Commentaries,” “Bible Stories for
Children,” and “Theology”: corporation B operates stores

A-32

selling only secular books and magazines, including a large
number of so-called “adult” books and magazines. 1 pose
what are to me self-answering negative answers to these
questions: Should corporation B be required to employ an
Evangelical Christian as a clerk who would find that work-
ing environment offensive? Should corporation A be re-
quired to hire an atheist who would find its working en-
vironment at least uncomfortable and who very prob-
ably would be reluctant to read any such books for the
purpose of discussing and answering inquiries from in-
terested customers? It is absolutely unthinkable that cor-
poration B should be required to employ a branch or gen-
eral manager who would be in a position actually to dis-
courage the sale of materials he or she thought porno-
graphic, just as corporation A should not be required to
employ in a managerial position one who would convey
his or her disinterest or disdain to the customers, This be-
ing so, it makes absolutely no sense to forbid the asking of
a religion-related question that would disclose these basic
incompatibilities, unless the even more absurd answer were
to be that the person should be hired first, without such in-
quiry, and only later discharged for nonperformance of
the duties of loyalty and performance owed the employer
at either place of business.

The Propriety of Religious Discipleship in a Secular Society

The examiner’s disposition of the basic issue in this case
was as sweeping as it was superficial: Owens’ religious be-
liefs are sincere but, when put into practice in a commercial
service business, simply irrelevant." To say, as the examiner

“The attorney general’s declaration that “extreme bigotry” and “extreme
intolerance” are the essence of this case is not only irrational, but
cynical. “Bigotry” is defined by Webster’s Dictionary as “obstinate and

A-33

said, that “[t]he essence of the employer’s business is not a
‘discipleship for Christ’ * * * but rather the operation of
an exercise emporium” is impermissibly to substitute the
examiner’s business judgment for Owens’ business judg-
ment. The examiner, at the same time, decrees a dichotomy
between Owens’ beliefs and practices, divorces the sacred
from the secular, does not distinguish praying on one’s
knees on Sunday from preying on other persons in the
marketplace on Monday, and nerceives no significant dif-
ference between the commitment of conviction and the
detachment of a possibly more casual Sabbath ceremony
or community convention.

The examiner’s view seems to reflect what Harold J.
Berman, James Barr Ames, Professor of Law, Harvard
University, calls “[t]he fundamental changes that have
taken place in our legal institutions during the past two
generations [as] part of a transformation of the entire

estern legal tradition, marked particularly by its discon-
nection from the religious foundations upon which it was
built.” He concludes:

[A]s a matter of historical fact the legal systems of
all the nations that are heirs to the Western legal
tradition have been rooted in certain beliefs or pos-
tulates: that is, the legal systems themselves have
presupposed the validity of those beliefs. Today those
beliefs are postulates—-such as the structural integ-
rarity of law, its continuity, its religious routs. its
transcendent qualities--[which] are rapidly disap-

unreasoning attachment to one’s own belief * * * with intolerance of
beliefs opposed to them.” If Owen’s Christian conviction is “bigotry,”
the same may be said of Orthodox Jews. Muslims, Hindus, and others
who believe theirs is the true religion. Still worse, it comes close to
defaming Jesus for saying, “I am the way, I am the truth, I am the life;
no One goes to the Father except by me.” John 14:6.

A-34

pearing not only from the minds of philosophers,
not only from the minds of iawmakers, judges, law-
yers, law teachers, and other members of the legal
profession, but from the consciousness of the vast ma-
jority of citizens, the people as a whole; and more
than that, they are disappearing from the law itself.
The law is becoming more fragmented, more subjec-
tive, geared more to expediency and less to morality,
concerned more with immediate consequences and
less with consistency or continuity.”

Contemporary theologians of national scholarly stature
address more cogently the premise advanced in this Pari
I, preliminary to reaching the fundamental constitutional
issue in all these cases.

Martin E. Marty, Ph.D.,” wrote in U.S. News & World
Report:

We tend to underestimate the power of religion in
people’s lives, because for many years in America
religion had become a private affair. * * * I do not
believe in turning schools into churches, but our
children would be well served by courses teaching
about the role of religion in human life. Schools
should teach reality, and media should cover reality;
yet we’ve largely screened out the reality of religion
in society. A youngster can watch 15 years of
children’s TV and learn about the mailperson and

*Religious Foundations of Law in the West: An Historical Perspective,
1 Journal of Law and Religion 3, 3, 41-42 (Summer 1983).

*8Dr. Marty is an ordained Lutheran clergyman and a professor of Modern .
Church History, University of Chicago. He is publisher of Context, a
commentary on religion and culture, and associate editor of Christian
Century magazine. See also infra note 18 and accompanying text.

ee

A-35

the grocer but never see a rabbi, monk or minister.
* * * The group I would regard as the next frontier
for religion is that huge class of young adults—the
high-rise, high-tech people—who devote tremendous
energies to their careers and take the pressure off
through a kind of hedonism. There are religious stir-
rings among them, yet few of them are attracted to
established churches. This group and millions of
other Americans are likely to pursue religion entirely
privately, which can be a fine expression of personal
freedom but a problem when it comes to reaching
people and reforming society.

U.S. News & World Report 46 (Sept. 24, 1984).
Peter J. Gomes, Ph.D.,” writing in the Minneapolis Star
and Tribune, Oct. 12, 1984 (Commentary) at 19A, wrote:

In what we like to describe as our secular and
pluralistic republic, our problem is with those who
now appear unwilling to leave well enough alone
in the business of religion. The “problem” with re-
ligion, of course, is the religious, those who take it
seriously, those who are unwilling to be among Swift's
“Anythingarians.” They know what Edmund Burke
meant when he wrote, “Nothing is so fatal to religion
as indifference, which is, at least, half infidelity.”
To such as these, a general religion is no religion at
all.

“Dr. Gomes is an ordained clergyman in the American Baptist Church.
He is Plummer Professor of Christian Morals, Harvard University, and
Minister of Harvard’s Memorial Church. Time Magazine, Dec. 31, 1979,
at 67, listed him among its selection of the seven greatest preachers in
the United States

ee

A-36

James Hitchcock, Ph.D.,* in an October 1984 address at
Hillsdale College, reported in its February 1985 issue of
Imprimis, said:

In recent years there has been a coming together
of Catholics and Evangelicals motivated by a grow-
ing recognition of the threats to Christianity itself
posed by both the secular culture and by liberal
Christianity.

Liberal Christianity can be defined as the assump-
tion that religion is under an obligation to adapt it-
self completely to changing cultures. Ultimately, it
does not believe in transcendent divine revelation but
conceives religion as born of the on-going “religious
consciousness” of the human race. Virtually every-
thing in religion, including finally even God, is re-
garded as a human creation, which human beings
therefore can, and even must, change in order to meet
changing human needs. By contrast, orthodox
Christians believe that the source of their religion
is God’s self-revelation of Himself to His people.

It is at this point * * * that the widest gulf exists
in contemporary Christianity. It is not a gulf which
runs between denominations, but cuts across prac-
tically all denominations, running through the mid-
dle of many.

Richard John Neuhaus,” interviewed in the Nationa!
Catholic Register (reprinted in The Presbyterian Layman

**Dr. Hitchcock is Professor of History, St. Louis University, A Jesuit
school. He chairs the Catholic League for Religious and Civil Rights.
> is past president of the Fellowship of Catholic Scholars and former
ibd of Communio.
"Mr. Neuhaus is a Lutheran clergyman, commentator. avd civil rights
activist.

oe

A-37

10 (Nov./Dec. 1984)), gave this answer to the question,
“How can Christians instill Biblical values into a pluralis-
tic society?”:

What we need in this society more than anything
else, is exemplary communities of Christian virtue,
both private and public. Secondly. Christians should
be uninhibited in articulating their beliefs in the
public arena. The third task, which is terribly im-
portant, is to find points of agreement with those who
are not motivated by the same biblically based values
that motivate us.

Orthodox Judaism, no less than Christianity, has no
sterile dichotomy like that imposed by the examiner as
dispositive in this case. Milton Steinberg,” in his excellent
book for non-Jews, Basic Judaism, writes:

Judaism, being more than a church, is broader in its
interests than theology and ethic. It is, in fact, no
less than a full way of life. Wherefore it seeks to
mold not only the beliefs, morals, and worship of the
Jew, but his every act, his eating, drinking, work
and play. Ritual is the instrument designed to -this
end, carrying the Jewish religion into every nook and
cranny of his being until nothing he does is un-
touched by Judaism.

M. Steinberg, Basic Judaism 136 (1947).
The above-quoted views of professionals occupying pres-
tigious positions in academia and pulpits in the United

‘Rabbi Steinberg received his Master's Degree in Philosophy from Colum-
bia University and an honorary degrce of Doctor of Hebrew Letters
from the Jewish Theological Seminary of America. He was Rabbi at the
Park Avenue Synagogue in New York until his death in 1950.

A-38

States are confirmed by parishioners in the pews of Min-
nesota churches. The Institute of Ecumenical and Cul-
tural Research, located on the premises of St. John’s Uni-
versity, Collegeville, Minnesota, recently undertook a 5-
year, $200,000 study “to learn how Christian faith af-
fects the lives of church members in Minnesota, in order
to gain information concerning the internal condition of
the churches and their relation to society.” The nature
of the study and its extensive findings were published in
a 1983 book entitled Faith & Ferment: An Interdiscipli-
nary Study of Christian Beliefs and Practices (hereinafter
Faith & Ferment), edited by Robert S. Bilheimer, a Pres-
byterian minister and executive director of the Institute.
The study consisted of questionnaires sent to some 2,000
church members and ministers in various denominational
churches in demographically representative counties, fo!-
lowed by intensive personal interviews with, among others,
several of those who had responded to the questionnaires.
The study was an interdisciplinary collaboration, with the
design of the inquiry developed by a professional group of
anthropologists, sociologists, and psychologists from the
University of Minnesota.” Sister Joan D. Chittister, O.S.B.,

“To obtain a random sample of active church members, the project em-
ployed a two-stage sampling design to determine which members should
receive questionnaires. The first stage used the same seven geographical
regions employed in the reporting of state vital statistics; for the second
stage, two adjacent counties within each region were selected at random
to serve as sampling domains for the study. Churches within these coun-
ties were then chosen randomly from phone lists in such a way to as to
ensure representation from each region proportional to its population.
In all, 210 churches were selected and the pastor at each was asked to
select 10 members of his or her congregation. When the initial solicita-
tion failed to elicit a sufficient number of replies, an additional solici-
tation was mailed to 210 alternate churches that had been chosen from
the telephone directories in anticipation of such a contingency. These
alternate churches were selected from a different sct of 14 counties
chosen in the manner previously described. Jd. at 334-35. In addition

| ee ee

A-39

Ph.D., the project coordinator and a professional con-
sultant to religious organizations, prepared a unified pre-
sentation of the project’s major findings, which appears in
the first part of Faith & Ferment. The next part of Faith
& Ferment presents a historical and theological analysis
of the data by Dr. Martin E. Marty, a co-producer of the
project, followed by a third part made up of supple-
mental essays by lay and clerical members of the com-
mission. Veteran religion reporter Willmar L. Thorkelson,
a lay member of the Faith & Ferment project, said,
““Monumental’ is the word that journalists would use to
describe [it].” Faith & Ferment at 273. It is a study that
has not been replicated in any of the other states.

The most inportant finding, as reported in Faith & Fer-
ment:

In the minds of these respondents, work and faith
are clearly interrelated. More than three-fourths of

to questionnaires, 101 personal interviews were conducted. A portion
of the interviewees were drawn from those who returned questionnaires
and others were drawn from those who expressed interest. Jd. at 12-13.

The survey therefore obviously was not based upon a more exact
statistical sampling, a in a Gallup Poll, and the answers of respondents
may be skewed by the nature of the questions asked in the in-depth
interviews. Nonetheless, designers of the project concluded that “[t)he
data presented * * * provide a reliable base upon which to achieve the
stated aim of Faith and Ferment (sic): ‘to produce hypotheses of weight
concerning the dimensions, the problems and promise of the present
situation’.” Id. at 337.

The Gallup Poll annually surveys church attendance by adults in five
selected weeks—asking the question, “Did you, yourself happen to
attend church or synagogue in the last seven days?”—using a statisti-
cally more valid sample of the adult population within four regions of
the United States but without illuminating more than the single fact of
attendance. The most recent poll, released December 20, 1984. showed
these percentages and attendance: South, 44; Midwest, 42; East, 38:
West, 33. The Faith & Ferment project concentrated on the attitudes of
those who were identified as churchgoers, but added more information
concerning the extent of their attendance: “[h]alf of them report that
they go [to church] at least once a week * * * [a]lmost half (49%)
said that they watch religious programs on TV at least twice a month.
These are not people who describe the value of church without going
to any.” Jd. at 79.

ii i I Ne |

A-40

them (79%) see their work as being in harmony with
their Christian faith. Some (13%) say that the work
they do for a living has little or nothing to do with
their faith. Few (7%) believe that what they do to
earn their livelihood conflicts with their faith. But
regardless of their answers, most of them see faith
as an acceptable and intelligent guide in the market-
place. It directs their conduct in their daily work.
Many (81%) try to be an example for Christ while
at work. And in a society that urges people to keep
a proper distance between their religious convictions
and their public activities, faith requires a surprising
number (39%) to tell others on the job about
Christ. * * * [OJne thing is all but certain: what-
ever is going on in the American marketplace is per-
ceived by Christians in Minnesota to be within the
purview of faith.”

"Faith & Ferment at 133-35. There were other specific findings that are
relevant to the issues discussed at various points in this opinion, includ-
ing Part V, among them these:

[T]he church members who participated in this study claim that fam-
ily worship at home is a regular and even frequent part of their lives.
Over two-thirds (67%) pray at meals “most always.” Almost half
(48%) say they worship at home as a group every single day by
reading Scripture or some spiritual book, with the rosary, or in family
night prayer. Twenty-five percent reported that they never pray as a
family or, if they do, make it a practice only on holidays. * * * For
most Catholics, Evangelical Covenant members, Lutherans, and Bap-
tists in the sample (51%-68% ), family worship is reportedly a daily
exercise.
Id. at 26.

Almost every respondent (95%) said that the Bible is in some
authoritative sense the Word of God and that this is a necessary
belief for all Christians. It was not surprising, then, to find that a
large portion of the Christian community (77%) felt strongly that
reading the Bible is important for the development of their spiritual
lives. Almost all respondents (92% ) credited the reading of the Bible
as having at least some importance for their spirituality. Even 59%
of the Roman Catholics, for whom Bible Study has not been the

A-41
II.

The Statutory and Constitutional Focus of the Human
Rights Act

Minn. Stat. § 363.03 (1984)—subject to a prefatory
exception for bona fide occupational qualifications—con-
tains a statutory subdivision declaring the following em-
ployment practices of an employer to be unlawful and
prohibited discriminatory acts: requiring an applicant for
employment to furnish information that “pertains” to re-
ligion, sex, or marital status (subdivision 1(4) (a)); re-
fusing to hire an applicant for employment or maintaining
a system of employment which “unreasonably” excludes a
person seeking employment because of religion, sex, or
marital status (subdivision 1(2) (a)); and discharging an
employee or discriminating against an employee with re-
spect to upgrading of position because of religion, sex, or
marital status (subdivision 1(2) (c)). Minn. Stat. § 363.03,
subd. 3, additionally prohibits denying full and eqnal

focus of spiritual formation, were convinced that the Bible is essential
to their personal spiritual development.

s-* * *
Forty-one percent of the respondents surveyed believe that in the
Bible “people report verbally what God said and that the Bible in
the original text contained no errors.”

*s* * *

In general, then, these Christians believe that God is present in
time and that their lives are marked and managed by a divine love
and will, that prayer and Scripture link the mind of God and the
matter of life, and that the Christian message is determinative for
the salvation of the world. * * *

Consequently, perhaps, their sense of personal accountability is
high.

Id. at 66-77. Jerome P. Theisen, O.S.B., S.T.D., Abbot of St. John’s
Abbey, Collegeville. Minnesota. echoed similar observations by others
of the members: “What is particularly striking in the data is the high
incidence of the practice of prayer and the remembrance of God. * * *
God is active in the very midst of work and leisure, love and anxiety,
decisions and problems. * * * One fact is clear: the Christians of
Minnesota want and expect to be involved in matters that extend beyond
the walls of the church building.” Jd. at 296-99.

A-42

enjoyment of the facilities of a place of public accommo-
dation because of religion or sex, and a violation of this
subdivision is declared to be a misdemeanor. Minn. Stat. §
363.101 (1984) .The test of these provisions, in relevant
part, is set forth in the margin.”

The Minnesota Constitution deals in direct terms with
the validity of the Human Rights Act, both in its text and
as applied in this case. Declaring in its Preamble that it
was ordained and established in gratitude to God for our
civil and religious liberty and to secure its blessings for
posterity, it guarantees in article !, section 16, every per-
son’s freedom from “control of or interference with the
rights of conscience.” By article 1, section 3, it guarantees

*°The Minnesota Human Rights Act, by the following clauses of Minn.
Stat. § 363.03, subd. 1 (1984), forbids the following:
Except when based upon a bona fide occupational qualification,
it is an unfair employment practice:
*>es ©

(2) For an employer, because of race, color, creed, religion,
national origin, sex, marital status, * * * disability, or age,

(a) to refuse to hire or to maintain a system of employment which
unreasonably excludes a person seeking employment; or

(b) to discharge an employee; or

(c) to discriminate against an employee with respect to his hire,
tenure, compensation, terms, upgrading, conditions, facilities, or
privileges of employment.

ses es €

(4) For an employer * * * before a person is employed by an
employer * * * to

(a) require the person to furnish information that pertains to
race, color, creed, religion, national origin, sex, marital status * * *

Minn. Stat. § 363.03, subd. 3 (1984), prohibits the following:

It is an unfair discriminatory practice:

To deny any person the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, and accommodations of a
public accommodation because of race, color, creed, religion, dis-
ability, national origin or sex. * * *

Minn. Stat. § 363.101 (1984) provides:
In addition to all other remedies provided under this chapter, every
person who commits an unfair discriminatory act as set forth in
section 363.03, subdivision 3, or aids, abets, incites, compels, or
coerces another to do so, shall be guilty of a misdemeanor.
(emphasis supplied).

A-43

the right of all persons to freely speak their sentiments on
all subjects. The full text of these two sections of the Min-
nesota Bill of Rights is set out in the margin.”

The three-part factors of Constitutional analysis

The state acknowledges that a three-step analysis should
be undertaken when a statute is challenged as infringing
upon these fundamental interests, namely: (1) whether
the statute imposes a burden upon the free exercise of
those rights; (2) if so, whether the imposition of that burden
is justified by a compelling and overriding government in-
terest; and (3) even so, whether the challenged statutory
proscriptions are the least restrictive means to achieve the
state’s objectives.

The function of the examiner was a schitzoid one, which
accounts for the unbalanced result in this case. On the one
hand, section 363.11 of the Human Rights Act, in its in-
terpretation and application, directs that the provisions
of the Act “shall be construed liberally for accomplish-
ment of the purposes thereof,” and section 363.12, subd.
1, declares it to be the public policy of this state “to secure

“Minn. Const. art. 1, § 3, provides:

The liberty of the press shall forever remain inviolate, and all
persons may freely speak, write and publish their sentiments on all
subjects, being responsible for the abuse of such right.

Minn. Const. art. 1, § 16, provides:

The enumeration of rights in this constitution shall not deny or
impair others retained by and inherent in the people. The right of
every man to worship God according to the dictates of his own
conscience shall never be infringed: nor shall any man be compelled
to attend, erect or support any place of worship, or to maintain any
religious or eccesiastical ministry, against his consent; nor shall any
control of or interference with the rights of conscience be permitted,
or any preference be given by law to any religious establishment or
mode of worship; but the liberty of conscience hereby secured shall
not be so construed as to excuse acts of licentiousness or justify prac-
tices inconsistent with the peace or safety of the state. nor shall any
money be drawn from the treasury for the benefit of any religious
societies or religious or theological seminaries.

A-44

for persons in this state freedom from discrimination.” Re-
sponsive to that mandate upon the administrative agency
—and without power to determine issues of constitutional
law—the examiner, by his findings, conclusions, and or-
ders, interpreted the statute not only in a “liberal” fashion
but in a remarkably extravagant way.

On the other hand, the three-factor constitutional analy-
tical framework has the opposite mandate, for its imposes
restrictions against intrusion upon fundamental and over-
riding civil liberties. The examiner acknowledged, as to
the first factor, that the sincere religious beliefs of Owens
were burdened by the Act, but with respect to the second
and third factors, he did no more than make the un-
critical declaration that the burden was justified by a com-
pelling state interest, without less restrictive alternatives
of interpretation or enforcement.

The statutory and constitutional facts are not in all re-
spects neatly separated, and they tend to coalesce. The
greater the magnitude of the individual’s liberty interest,
the more compelling must be the state’s interest sufficient
to override the individual’s. Similarly, the greater the in-
dividual’s interest, the greater must be the state’s search
for less restrictive alternatives of interpretation and -en-
forcement. Among such alternatives, constitutionally-of-
fensive provisions of a statute may effectively be read out
of the statute to save the statute or, conversely, safeguard-
ing provisions may be read into the statute to salvage it.
As we declared in State on Behalf of Forslund v. Bronson,
305 N.W.2d 748, 751 (Minn. 1981):

It is well established that if a statute ‘s ambiguous,
the corstruction which avoids constitutional conflict
is preferred although such construction may be less

—

A-45

natural. If the act is reasonably susceptible of two
different constructions, one of which would render it
constitutional and the other unconstitutional, we must
adopt the one making it constitutional. Additional-
ly, in the interpretation of statutes, the courts are re-
quired to discover and effectuate legislative intent, to
consider objects which the legislature seeks to accom-
plish by the statute and the mischief sought to be
remedied, and to avoid the result which would be
absurd or would do violence to the language of the
statute.

(citations omitted).

A pervasive issue, significant in both a statutory and
constitutional sense, is both illustrative of this coalescence
and important to all the employment-related complaints
of discrimination: are the statutory prohibitions uncom-
promisingly absolute and are the stated exceptions, par-
ticularly the general prefatory exception for “a bona fide
occupational qualification,” just as uncompromisingly nar-
row? There are other general and specific exceptions that
give negative answers to these really rhetorical questions:

(a) A rule of reason is incorporated in section
363.03, subd. 1(2) (a), which prohibits a system of
employment which “unreasonably” excludes a person
seeking employment.

(b) An exception is made by section 363.03,
subds. 3 and 4, which require physical accommoda-
tions for disabled employees, if, because of size or
type of operation of the employer’s business or the
cost of compliance, the employer would suffer a hard-
ship.

A-46

(c) An exemption from the provisions with regard
to age is made by section 363.02, subd. 7, for per-
sons in the summer youth employment program.

(d) An exception is made by section 363.02,
subd. 1(2), for a “religious or fraternal corporation,
association, or society with respect to qualifications
based on religion, when religion shall be a bona fide
occupational qualification for employment.”

(emphasis supplied).

The examiner missed the opportunity to apply his sa-
cred-secular dichotomy to the exception for religious and
fraternal corporations, neither of which is defined in the
Act. Consulting Webster’s Dictionary, he narrowly defined
“religious corporations, associations or societies” as only
those “whose primary purpose is ecclesiastical, which is
defined as ‘of or relating to a church, especially as a for-
mal and established institution’ or ‘of or relating to the
formal and established institutions or government of any
religion.’ ”*” Based on this definition, the examiner dis-
missed Owens’ claim for ai exception, stating that the fact
that Owens sperates the club ia a manner based on his
religious convictions is incidental to the primary purpose
of the business.

The examiner’s stated reason for rejecting Owens’ claim
for a religious corporation exception encounters substan-
tial problems of inconsistency when applied to the statutory

??Minnesota Statutes ch. 315 governs the organization of religious corpo-
rations. Both the YMCA and the YWCA are, by sections 315.44 and
315.49 (1984), incorporated under this chapter. They do not, however,
meet the examiner’s definition of a religious corporation. association,
or society — but each does, in substantial part, fit his label of “oxercise
emporium.” This indicates, in any event, an expansion of the -
liefs, attitudes and practices of its members (persons whose
religious beliefs, attitudes and practices were viewed by
the Respondents to be incompatible with theirs), it is pro-
tected by the Human Rights Act.

There is no dispute that Ms. Larsen was competent as
an associate membership director. Her sales record was
good and she was never warned that her job was in jeop-
ardy until the day she was discharged. Like Carnahan,
she was popular with and influential on her co-workers.
She had also assumed some of the training duties of Nancy
Albertson, the woman co-manager whose position had
been vacant since the fall of 1976. On October 3, 1977,
Larsen made remarks critical of Owens’ practices of re-
quiring that Bible studies be part of management meet-
ings, saying that she probably would not be “Christian”
enough for him to be a manager. These remarks followed
an inquiry by Crevier as to whether she was interested in
management, and Larsen’s acknowledgment that she was.
These circumstances create a reasonable inference that
Larsen was qualified for a management post. Her dis-
charge on October 4. 1977, of course. removed her from
such consideration. The final element of a prima facie
case exists, as it does with respect to all the Charging

eee

A-12

Parties, because the Respgndents have admitted that they
have a rapid turnover in personnel and are always look-
ing for qualified people. The fact that Carnahan was
asked about management some eight months after Lar-
sen’s discharge further establishes that the Respondents
continued to seek qualified potential managers.

Respondent Crevier told Larsen that she was being dis-
charged for being a “negative influence” in the Club. He
specifically accused her of creating unhappiness among
three junior staff members. He also testified that Larsen
was never considered for management because she did
not get along well enough with the staff, had difficulty
with the clerical responsibilities of the job, and did not al-
ways “program” the members properly.

It is the Hearing Examiner’s conclusion that the Com-
plainant has successfully rebutted the employer’s business-
related reasons for Larsen’s non-promotion and discharge
and shown them to be pretextual. Ms. Larsen’s testi-
mony that she told Crevier, on the day before she was dis-
charged, that she was probably not “Christian” enough
for Mr. Owens to be considered for management and that
she would be happy to work in management if Mr. Owens
did not pressure or push her into being his kind of Chris-
tian, was never rebutted. This establishes two things-——(1)
that Larsen was a candidate for elevation to management,
and (2) that she was similarly fired after voicing a reli-
gious opinion. It is, therefore, concluded that the Com-
plainant has established directly (under the Burdine-Lamb
standard) that an i'legal discriminatory reason, religion,
was the more likely basis than any other for the Respond-
ents’ actions (denial of her promotion and discharge).
Under applicable law, pretext has been proven by a pre-
ponderance of the evidence.

Se eh tn alt nail iy

ae Niece nd ik Nk Metical aeiel T dalealilk Te re ee bm

a aly ll ir DE es

:
-
2

A-i21

Another establishment of pretext (an indirect showing
unde; Burdine and Lamb) was made by the testimony
of Faith Kiehl, one of the women (along with Debra
Watermoeilen and Ann Stewart) that Crevier alleges had
been “negatively influenced” by Larsen. Kiehl’s testimony
was that Ms. Larsen helped and encouraged her, never
caused her any trouble and that Kiehl never told man-
agement, or anyone else, that the Charging Party had
been a “negative influence” on her. In addition, Kiehl’s
testimony also establishes that Debra Watermoellen, with
whom Kiehl worked closely, had never, to Kiehl’s knowl-
edge complaintd about Bev Larsen or told Kiehl that
Larsen had been mean to her. Although Marc Crevier’s
testimony on this general subject tends to contradict
Kiehl’s, the Hearing Examiner found Faith Kiehl to be
an entirely credible witness. Her testimony casts sufficient
doubt on the Respondents’ proffered reasons for the ac-
tion they took against the Charging Party to further prove
pretext by a preponderance of the evidence. The Com-
plainant has proven that Beverly Larson (Matha) was dis-
charged because of religion and discriminated against with
respect to the upgrading of her explovment within the
meaning of Minn Stat. § 363.03, subd. 1(2).

Robert (B) Severin

Bob Severin is not now, and never has been a “Born-
Again” Christian. A Catholic who believes religious ac-
tivities should be kept out of the work place. Severin was
pressured by the Respondents to attend Bible studies
throughout the entire period of time (about one year) after
Crevier and Larson, and Jeff Penney, their Club manager,
took direct charge of the Midway Sports and Health Club

A-122

from Jim Chapman. He always declined to participate in
the Bible studies. His non-attendance at those studies and
belief that people should not engage in religious practices
at work places Severin in a class of employees whose re-
ligious beliefs and practices are different from those of the
Respondents, a class protected from discrimination based
on religion within the meaning of Minn. Stat. § 363.03,
subd. i(2). His 18-year tenure with Sports and Health,
during which he was successful at sales and developed a
reputation as an excellent body-building instructor, is am-
ple evidence of his capability to perform as an associate
membership director. He was discharged from employ-
ment, and, since the employer is always looking for per-
sons qualified to be associate membership directors, a
prima facie case of discrimination based on religion has
been established.

- Several weeks after receiving a generally favorable em-
ployment evaluation from the Respondents, Mr. Severin
was discharged within one hour of stating, at a staff meet-
ing with Club manager Jeff Penney present, that the mo-
tivation and enthusiasm showed in the Club when Jim
Chapman was manager seemed to be lacking. The Re-
spondents’ proffered reasons for discharge were that Se-
verin was lacking in enthusiasm, had been unwilling to
conform to the “book work” system imposed by manage-
“aent after Chapman departed, and that he, as a senior
employee, was setting a bad example for the rest of the
staff. The Hearing Examiner has concluded that these
-easons are pretextual.

Severin’s unrebutted testimony was that Jeff Penney
fired him after Penney had called Marc Crevier and dis-
cussed what to do about Severin’s remarks in the staff
meeting. There is no evidence that Severin had been

PE ee a ee ET eT ee

eT

A-123

warned before that time that his job was in jeopardy and
a “lack of enthusiasm” or a repeated tendency to ignore
recordkeeping duties are matters that require observation
over a period of time. Examination of Severin’s last job
performance review shows that Jeff Penney may have
observed these qualities in Severin, but this, standing alone,
fails to prove that Severin was informed that his employ-
ment status was precarious. It is reasonable to believe
that an employee with 18 years of seniority in an organiza-
tion would have been told if he was in danger of losing
his job because of his work habits, and would have been
given a chance to change them, but the record fails to es-
tablish that such was the case regarding this Charging
Party. Although Severin acknowledged on cross-examina-
tion that no one in management ever directly told him that
he would lose his job if he did not attend Bible studies, or
told him that he had lost his job because of non-attendance
at them, the Hearing Examiner is persuaded that the fact
that Owens, Crevier, Larson and Penney had been asking
Severin to go to Bible studies throughout the year after
they took over the direction of the Midway management
establishes pretext by a preponderance of the evidence.
This is so because he is persuaded that Severin’s religious
views more likely initiated the Respondents’ decision to
discharge Severin than any of the business-related
reasons offered for the termination. Therefore, Mr. Severin
was discharged in violation of Minn. Stat. § 363.03, subd.
1(2) (b), which prohibits discharge because of religion.

Marilyn Crosby

Marilyn Crosby’s employment interview was terminated
by Marc Crevier when she revealed to him that she was

re

A-124

an unmarried woman who lived with her boyfriend, a
member of the opposite sex. Since Crosby was not hired,
is a member of a protected class (single persons), was in-
disputably capable, due to her record at Spa Petite and
Grecian Health Spas, of performing the job of associate
membership director and the Respondents continued to
seek qualified persons to fill their vacancies, the Com-
plainant has established a prima facie case of discrimina-
tion because of marital status under the Act. Moreover,
the Charging Party’s unrebutted testimony that Crevier
told her she could have the job if she moved out of the liv-
ing arrangement with her boyfriend is direct proof of dis-
crimination because of marital status.

The Respondents’ reason for not hiring Crosby, or any
unmarried woman who lives with a member of the op-
posite sex, is their refusal to support persons who violate
Minn. Stat. § 609.34, which reads:

“When any man and single woman have sexual in-
tercourse with each other, each is guilty of fornica-
tion which is a misdemeanor.”

The Hearing Examiner, for reasons stated below, does not
conside1 advancement of this defense to be a showing on
the part of the Respondents of a legitimate non-dis-
criminatory reason for not hiring Marilyn Crosby.

The record establishes that Ms. Crosby, a single woman,
lived with her boyfriend at the time of the employment
interview in question, but fails to establish that she is a
fornicator. This is because there is no evidence that she
has had sexual intercourse with a man to whom she is not
married, or of her sexual experience at all. The Hearing
Examiner took notice on the record of the fact that many

ree ee ee

A-125

persons in today’s society live with persons of the opposite
sex but do not engage in sexual relations. However, the
inference is strong that a young woman who moves into a
dwelling with her “boyfriend” is engaging in sexual rela-
tions with him, so the Hearing Examiner has nct relied
on the fact that the record does not technically establish
fornication to resolve this charge.

The proffered reason is not “legitimate” in Minnesota
within the meaning and intent of the Human Rights Act
and the cases interpreting it because the Legislature did
not intend to make an exception excluding fornicators
from protection against discrimination in employment
because of their marital status. It is so reasoned because
Minn. Stat. § 609.34 was last amended in 1971. The pro-
visions of Minn. Siat. § 363.03, subd. 1, prohibiting dis-
crimination in employment based on marital status were
not enacted until 1973. The Legislature made no exception
denying protection of the Human Rights Act to single
persons engaged in fornication when it passed the law to
prohibit discrimination in employment based on marital
status, and it has not dore so since. The inference is that
the Legislature intends the fact that a single job applicant
is guilty of fornication to be immaterial to the question
of whether she has been the victim of illegal discrimin-
ation in employment because of marital status.

Because a woman’s marital status is relevant to whether
she can be guilty of fornication (she must be single), the
law making fornication a crime is irreconcilable with the
subsequently passed law prohibiting employment discrimi-
nation based on marital status. That is, the Human Rights
Act may be viewed as requiring employers to “subsidize”,

A-126

through employment, persons who are engaged in criminal
behavior.
Minn. Stat. § 645.26, subd. 4 reads:

“When the provisions of two or more laws passed at
different sessions of the legislature are irreconcilable,
the law latest in date of final enactment shall pre-
vail.”

Under the above-quoted law, the Human Rights Act, pro-
visions making discrimination based on marital status il-
legal must prevail over an employer’s unwillingness to
“subsidize” fornication.

The Respondents argue that their refusal to hire or re-
tain persons they believe or know to be fornicators is con-
stitutionally protected as a free exercise of their religion.
The general “free exercise” defense will be discussed under
a later heading in this Memorandum. However, for the
reasons stated under this subheading, the Complainant has
proved by a preponderance of the evidence that the Re-
spondents violated Minn. Stat. § 363.03, subd. 1(2) (a)
by refusing to hire Marilyn Crosby because of marital status.

Linda Perkins

Ms. Perkins’ charge is similar to Marilyn Crosby’s. She
is single, has demonstrated capability to work in the Re-
spondents’ organization because of her two years as a
child-care supervisor for a similar business, she was not
hired, and the Respondent continued to seek qualified
persons to perform the work Perkins sought after refusing
to employ her. The final element of a prima facie case
has been inferred from the unrebutted testimony of Perk-

A-127

ins to the effect that, although Mr. Owens told her the
Respondents were not intending to employ child-care
people at the Tonka Club, he continued to interview her
in order to ascertain whether she was qualified to work
elsewhere in the Company and/or in some other capacity.
The above-noted facts establish a prima facie case that
Perkins was the victim of illegal discrimination based on
her marital status.

Owens’ termination of Perkins’ employment interview
as soon as he learned that she lived with her fiance was an
act of discrimination against her with respect to hiring
because of her marital status. This action was taken by
Owens for the same reason Crevier refused to hire Marilyn
Crosby, and the action violated Minn. Stat. § 363.03, subd.
1(2) (a) for the same reasons as stated above with respect
to Ms. Crosby.

Steven Bruhjell

Mr. Bruhjell, a perscn whose religious beliefs and prac-
tices conflicted with those of Arthur Owens, is a member of
the same class of persons entitled to protection under §
363.03, subd. 1(2) as Robin Carnahan, Beverly Larsen
(Matha) and Robert Severin. He is not, and never has
been, a “Born-Again” Christian. On several occasions, he
was informed that the reason he had not been promoted
into the Respondents’ management was because of his re-
ligious beliefs. Jim Chapman testified that he had recom-
mended Bruhjell for management because he was a good
worker and qualified for promotion, and that Mr. Owens
then told him “I won’t have anybody in management
who isn’t a Christian.” Also, Bruhjell’s sales record was
very good. This establishes that Bruhjell was otherwise

A-128

qualified for promotional upgrading of his employment
and that he was not upgraded. Since he was passed over
for promotion on more than one occasion, the final re-
quired element of a prima facie case of discrimination
(that the employer sought people with similar qualifica-
tions to fill the position) is also met.

The Respondents have come forward, through the tes-
timony of Mr. Owens and Vicki Owens (Stanley), a
former co-worker of Bruhjell’s and Mr. Owens’ daughter,
with evidence to the effect that Bruhjell was not pro-
moted because of his personality, which Arthur Owens
and his daughter (one of the persons promoted to man-
agement instead of Bruhjell) viewed as argumentative and
rebellious. Owens testified that he told this to the Charging
Party at their last meeting, and that he suggested to
Bruhjell that, in order to change his personality, he should
first accept Christ as his Savior.

The Hearing Examiner concludes that the reasons ad-
vanced by Sports and Health for Steven Bruhjell’s non-pro-
motion are pretextual. This is so because the Complainant
has proven by a preponderance of the evidence that re-
ligious reasons more likely initiated the Respondents’ re-
fusal to promote Mr. Bruhjell than the reasons advanced
by Mr. Owens and his daughter. Owens’ own testimony is
that religion was one reason for not promoting Brubjell.
This is consistent with the fact that Owens had decided to
elevate only “Born-Again” Christians to management at
east 18 months before Bruhjell resigned. Bruhjell testified
that Owens told him that his religious beliefs were the
only reason he had not been promoted. In addition, Jim |
Chapman’s testimony that Owens responded “I will not have
anybody in management who isn’t a Christian” is evidence

i a taal

A-129

from a third party that the likely motivation for not promo-
ting Bruhjell was the Charging Party’s religious beliefs. The
record also contains a written statement from Craig Dahlin
(one of the Respondents’ Club managers) to the effect that
Bruhjell was not promoted because of religion.

It is unlikely that Mr. Bruhjell would have been re-
tained in the Respondents’ employ as an associate mem-
bership director for 3-1/2 years if he was argumentative
and rebellious to authority. The Hearing Examiner so con-
cludes even though the last period of Bruhjell’s employ-
ment was spent under the managership of Jim Citapman,
because Owens’ own testimony was that he still felt that
Bruhiell was rebellious and argumentative and told him
so in late 1976. The record shows that Owens had decided
to purge his organization of such employees long before
that time, so the fact that he had not fired Bruhjell by De-
cember of 1976, and did not do so during their final
meeting, casts doubt on whether Bruhjel!l was not upgraded
for any reason other than his religious views. The Hear-
ing Examiner is persuaded that it was more likely
Bruhjell’s religious views that caused his non-promotion
and not any other reason advanced by the Respondents,
so the Complainant has. by a preponderance of the evi-
dence, directly proven that the other reasors are pre-
textual. See, Texas Department of Community Affairs v.
Burdine, supra, at 255 and Lamb vy. Village of Bagley,
supra, at 510. The Respondents’ actions in not promoting
Steven Bruhjell violate Minn. Stat. § 363.03, subd. 1(2)
(c), which prohibits an employer from discriminating
against a person with respect to the upgrading of his em-
ployment because of religion.

A-130

Katherine Lamannsky

The elements of a prima facie case that Katherine La-
mannsky was not hired as a receptionist/associate mem-
bership director by the Respondents because of her marital
status (“divorced”, and therefore, single at the time of the
interview) were established by the Complainant because
(1) the Charging Party was divorced, and thus in a pro-
tected class because a currently “divorced” person has a
marital status of being single, (2) she was rejected for the
job, (3) the Respondents continued to seek qualified per-
sons for the position, and (4) she was capable to perform
the work. Element 3 was establishea because Respondent
Crevier did give Ms. Lamannsky an employment interview.
The final element, capability, was established because it
was unrebutted that Lamannsky had an extensive back-
ground in dance, that she continuously kept in good
physical condition by riding, bicycling, working out and
a variety of other physieal training, and Crevier did not
terminate the interview except when she refused to answer
detailed questions about her divorce. In addition, she meets
the Respondents’ criterion that she possess a “disciplined
lifestyle” because she was holding down both a full-time
(Staff Plus Temporaries from 8:00 a.m. to 4:30 p.m.) and
a part-time (First Minneapolis Bank from 5:00 to 10:00
p.m.) job at the time she was interviewed.

Marc Crevier testified that Lamannsky was not hired be-
cause he felt she did not have the outgoing, friendly per-
sonality and pleasant appearance necessary for a reception-
ist in one of the Respondents’ Clubs. Although Crevier nev-
er said this to the Charging Party, and the Respondents have
advanced no other reason for not hiring Lamannsky, their

= 4

a

A-131

reasons are legitimate, business-related and sufficient, given
the context of the job for which she was considered, to
shift the burden of proof back to the Complainant. For
the reasons stated below, the Hearing Examiner concludes
that the reasons advanced for not hiring Lamannsky are
pretextual.

Lamannsky was never told that she could not work for
Sports and Health because of her appearance and/or her
personality. Most of the job interview consisted of an in-
terrogation by Crevier into the reasons why Lamannsky
had gotten her divorce. Her divorce was still the focus of
the “interview”, which by that time had become almost a
lecture, when Crevier told the Charging Party that he did
not think she was fit to work for the Respondents and she
departed. Crevier’s testimony does nothing to refute the
Charging Party’s recollection of the conversation. It is pos-
sible (under the Burdine-Lamb approach) to indirectly es-
tablish pretext if the Hearing Examiner is persuaded that
the employer’s proffered reasons for not hiring a person
are unworthy of credence. Given this, the Hearing Examin-
er would be left to determine from his own observations of
Lamannsky at the hearing whether she possessed a person-
ality and appearance appropriate for functioning as one
of the Respondents’ receptionists. He is unable to make
that judgment because, although the witness seemed to
be uncomfortable at the hearing, had to be prompted to
speak louder and was reticent in her manner of speaking,
there is no way to tell what sort of image she projected
at a job interview three years prior to the hearing. It is also
impossible to judge how the witness behaved or appeared
before Crevier began questioning her about a personal
matter related to her marital status—the circumstances of

A-!32

her divorce, Given the interrogation to which Crevier sub-
jected her on that subject, it is understandable that La-
mannsky may not have appeared pleasant or outgoing.

It is concluded that the Complainant has established that
Lamannsky’s status as a divorcee was what cost her the
job because Crevicr spent most of the interview time on
that subject and was still attempting to draw her out on
the subject when he told Ms. Lamannsky that she was not
fit for employment at Sports and Health. From this, the
Hearing Examiner concludes that Lamannsky’s marital
status was more likely the reason for her not being hi:ed
than her appearante or personality. Therefore, the Com-
plainant has proved directly, by a preponderance of the
evidence under the Burdine-Lamb standard, that the Re-
spondents’ proffered reasons for not hiring her are a pre-
text for discrimination. With respect to Katherine Lamann-
sky, the Respondents have violated Minn. Stat. § 363.03,
subd. 1(2) (a) by refusing to hire her because of marital
status.

Joseph (Joe) Williams

At the time Joe Williams told Marc Crevier that he was
interested in working for the Sports and Health Club or-
ganization, and Crevier told him that, in order to do so, he
would have to be a “reborn” Christian, the Respondents
violated Minn. Stat. § 363.03, subd. 1(4) (a), which pro-
hibits an employer from requiring a person to furnish
information pertaining to religion before that person is
employed. Williams’ testimony to this effect has not been
challenged. What his testimony fails to show is that Crevier
directly asked Williams if he was a “reborn” Christian, or
whether Williams revealed the information, but the Hear-

ee nile in Crt toy,

A-155

ing Examiner concludes that these factors are immaterial
to whether this subsection of the Human Rights Act has
been violated. This is because Crevier’s statement put the
Charging Party in a position of being required to furnish
the information (identification of his religious status),
which obviously pertains to religion, before he could be
employed. Maing that requirement alone is sufficient to
violate the subsection.

Crevier testified that Williams did not pursue an appli-
cation for employment because he (Williams) could not
write, and, after Williams told him of this disability, Cre-
vier discouraged the application because the job required
a great deal of recordkeeping. Williams contends that he
told Crevier at the beginning of the discussion that he was
slow at reading and writing, that he wanted a job working
directly with people with a minimum of paperwork, and
that Crevier then discussed the job with him and still of-
fered him an opportunity to apply. Testimony regarding
the rest of the conversation reveals that the two men
then discussed the “religious” aspects of working at Sports
and Health, including the requirement that Williams be a
“reborn” Christian in order to be considered for employ-
ment. From these circumstances, it is concluded that Wil-
liams was “interviewing” for possible employment at the
time he was required to reveal information pertaining to
religion, so a violation of Minn. Stat. § 363.03, subd. 1
(4) (a) has been proven.

STATUTORY CHARGES - PUBLIC ACCOMMODA-
TIONS

Minn. Stat. § 363.03, subd. 3 (1978) states in relevant
part:

A-134

“Public accommodations. It is an unfair discriminatory
practice:

to deny any person the full and equal enjoyment of the
goods, services, facilities, privileges, advantages and
accommodations of a place of public accommodation
because of ... religion...”.

Minn. Stat. § 363.01. subd. 18 (1978) states that for
purposes of the Minnesota Human Rights Act, the term:

“ ‘Place of public accommodation’ means a business,
accommodation, refreshment, entertainment, recre-
ation, or transportation facility of any kind, whether
licensed or not. whose goods, services, facilities, privil-
eges, advantages or accommodations are extended,
offered, sold or otherwise made available to the pub-
lic.”

The Original Complaint in this matter, issued by Com-
missioner McClure on October 21, 1981, alleged that the
Respondents Sports and Health Club, Inc., provides pub-
lic accommodations within the meaning of Minn. Stat.
§ 363.01, subd. 18. In their Answer to the Complaint
filed on November 17, 1981, the Respondents admitted
that allegation of the Complaint. The parties’ positions
with respect to the question of whether the Respondents’
Clubs are public accommodations as defined above re-
mained unchanged until one week prior to the hearing
when, in response to the final Amended Complaint, made
by Commissioner Gomez-Bethke on July 1, 1983, the Re-
spondents filed an Answer interposing the defense that the
public accommodations portion of the Human Rights Act
was unconstitutionally vague and overbroad.

A-135

The parties are aware that the Hearing Examiner is re-
stricted from making a decision striking down the consti-
tutionality of a statute, but he can dismiss a charge if the
statute on which the charge is based has been declared
unconstitutional by a reviewing court. The basis for the
Respondents’ Motion to Dismiss is the June 7, 1983, rul-
ing by the United States Court of Appeals for the Eighth
Circuit in the case of The United States Jaycees v. State of
Minnesota, by McClure, et al., 709 F.2d 83 (8th Cir.
1983), which they allege strikes down the “public accomo-
dations” portion of the Minnesota Human Rights Act re-
lied on by the Complainant as the basis of her charges
herein. The Hearing Examiner cannot agree and, there-
fore, denies the Motion to Dismiss.

The Respondents’ Motion is denied for two reasons:
(1) The Eighth Circuit’s ruling is not final. The State of
Minnesota has appealed the June 7, 1983, decision to
the Supreme Court of the United States, which granted
certiorari and heard oral arguments on April 18, 1984;
and (2) A close reading of the majority opinion makes it
clear that the Eighth Circuit has left intact Minn. Stat. §§
363.03, subd. 3 and 363.01, subd. 18. as they apply to
the Respondents within the context of this action.

At p. 12. of the Court’s Slip Opinion No. 82-1493, the
Eighth Circuit Panel declares that “the Jaycees is a gen-
uine membership organization, whose members govern its
affairs and decide its policies, not just a vehicle for the de-
livery of commercial goods and services”. Nothing in this
record indicates that the members of Sports aid Health
Clubs govern its affairs and decide its policies—in fact, it
is. essential to the Respondents’ constitutional defenses
herein that Respondents Owens, Crevier, and Larson

A-136

govern those affairs and control those policies. In addi-
tion, the “delivery of services” (exercise facilities, instruc-
tion in exercise and nutrition) is the basis of the Re-
spondents’ operation. The Respondents are also in busi-
ness for the purpose of making a profit.

On pages 25 and 33 of the Court’s Slip Opinion, it is
made clear that only the threshold membership policies
of the Jaycees are affected by the Court’s holding, and the
“public accommodations” charges in this case only relate
to alleged denials of the services, facilities and privileges
to persons who were already members. The majority op-
inion closes, on p. 37 of the Slip Opinion, by stating:

“Our holding is a narrow one. The law (§§ 363.01,
subd. 18 and 363.03, subd. 3) will continue to apply
with full vigor to all business and commercial ac-
tivity in the usual sense of those words—to busi-
nesses, for example, that sell goods and services to

the public . . . It is only the law’s interference that we
hold invalid under the First and Fourteenth Amend-
ments.”

The charges in this case regarding Minn. Stat. §§ 363.03,
subd. 3 have nothing to do with what classes of persons
can or cannot contract for Sports and Health Club mem-
berships. They relate instead to allegations of illegal denial
of services that are sold to the public. The Respondents
have admitted on numerous occasions throughout this pro-
ceeding that they are a health and exercise service busi-
ness, in operation to make a profit by selling those ser-
vices, The Eighth Circuit has made it clear that the laws
in question still applv “with full vigor” to such operations.
The consideration of whether other applications of the

Dit dah thee nade Simtel citithe

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———

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public accommodations portion of the Human Rights Act
apply to the Respondents is not before the Hearing Ex-
aminer because the Respondents have never raised the
question. The Hearing Examiner believes it is unnecessary
to decide such matters because the Eighth Circuit has
made it clear that its decision does not reach the issue,
under Minnesota Law, of whether the Jaycees are a public
accommodation. The Eighth Circuit’s decision deals with
threshold membership policy, not with the operator’s em-
ployment practices or how it treats members it has already
admitted. And. no claim before the Hearing Examiner in-
volves denial of membership based on sex.

It is clear from the record that the Respondents make
the operational decisions at Sports and Health Club, Inc.,
not the “members” who are, in effect, customers who have
purchased the services, facilities and privileges of using
the Respondents’ Clubs. Since the situations involved in
this case are unrelated to those considered by the Eighth
Circuit, the Hearing Examiner is not herein bound by its
opinion.

The Court states, at page 23 of its Slip Opinion, that
the question of whether the Jaycees are a “vehicle for the
delivery of commercial goods and services” is not before it.
The implication is that the Court believes businesses that
offer commercial goods and services to be public acccm-
modations are clearly within the Minnesota Human Rights
Act, and that it would uphold the constitutionality of ap-
plying the public accommodations statute to such busi-
nesses.

The Hearing Examiner believes the only ques-
tion he has to decide under the authority of the United
States Jaycees v. State of Minnesota case is whether the
Respondents’ Clubs sell goods and services to the public.

a

A-138

And, since the Respondents have admitted that “service”
is the major product they offer to the public, they are a
“public accommodation” covered by the appropriate pro-
visions of the Minnesota Human Rights Act.

In resolving the question of whether the Respondents’
Clubs are “public accommodations” under Minnesota
Law, the Hearing Examiner has considered the Respond- |
ents’ argument in reliance on the case of Selobohm v. Spa |
Petite Inc., 326 N.W.2d 920 (Minn. 1982) and finds it
to be inapposite. The Schlobohm case turns on whether a
clause in a health club member’s membership contract was
unenforceable as against public policy, and the Supreme
Court’s decision was based, in part, om the fact that the
contract was not void as against public policy because |
health clubs are not a regulated itidustry. The Hearing |
Examiner concludes that the Court’s: holding has no ap-
plication here. In this case, the Legislature by passing the
public accommodations sections of the Human Rights Act,
has provided a regulatory scheme against which the Re-
spondents’ conduct must be judged. Therefore, the Re-
spondents’ arguments that the Hearing Examiner cannot
decide the charges respecting Williams, Cameron and Or-
mond have been rejected. Each charge is separately con-
sidered below.

Joseph (Joe) Williams

The Minnesota Supreme Court has yet to issue an opin-
ion defining an unfair discriminatory practice in the area
of public accommodations. Minn. Stat. § 363.03, subd. 4,
which outlaws unfair discriminatory practices in the ac-
cess to or full utilization of public services (public facili-
ties or agencies) for of all the same reasons that are pro-

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A-139

hibited under the “public accommodations” subdivision,
including religion, has been construed in a light which
provides guidance here. In the case of City of Minneapo-
lis v. Richardson, 307 Minn. 80, 239 N.W.2d 197 (1976),
two Minneapolis policemen called a 12-year old black
youth that they had just arrested a “nigger”. In resolving
that case, the Court adopted the following standard to de-
fine an unfair discriminatory practice:

“A finding that an unfair discriminatory practice has
occurred may be made when the record establishes
(1) an adverse difference in treatment with respect to
public services of one or more persons when com-
pared to the treatment accorded others similarly sit-
uated except for the existence of an impermissible
factor such as race, color, creed, sex, etc., or (2)
treatment so at variance with what would reasonably
be anticipated absent discrimination that discrimina-
tion is the probabie explanation. We emphasize that
we adopt this standard as a guide to the evaluation
and review of evidence in discrimination cases.”

239 N.W.2d at 202.

With respect to part (2) of the above-quoted test, the
Court stated:

“When such a showing has been made, it is reason-

able to require an opposing party to respond with
evidence of a permissible basis for the distinction be-
ing made.”

239 N.W.2d at 202.

The Human Rights Act does not specifically define
“discriminate”. The City of Minneapolis y. Richardson

A-140

Court does this, however, at 239 N.W.2d 201. The Court
first noted that Minn. Stat. § 363.01, subd. 10 defines
“discriminate” as “The term ‘discriminate’ includes segre-
gate or separate.” It then adds:

“ _. The ordinary meaning of discrimination is well
expressed in (two dictionary definitions):

‘DISCRIMINATION .. . In general, a failure to
treat all equally . . . Black Law Dictionary (Rev.
4 Ed., p. 553).’

‘Discriminate . . . 2: to make a difference in treat-
ment or favor on a class or categorical basis in dis-
regard of individual merit . . .. (Webster’s Third
New International Dictionary, 1961, p. 648).’

The concept articulated in the above definitions is dis-
tinction in treatment of individuals based upon im-
permissible or irrelevant factors such as race, color,
creed, sex, etc.’ ”

The Complainant has attempted to prove that Mr. Wil-
liams lost his membership in the Sports and Health Club
because he got into an argument with Marc Crevier con-
cerning the alleged requirement that employees go to Bible
studies. This argument has two bases—(1) the close prox-
imity in time of the argument with Crevier to Williams’
being denied use of the Clubs for non-payment of mem-
bership dues, and (2) Williams’ expulsion from member-
ship even though he had paid up his current arrearages.

For the purposes of this discussion, the Hearing Ex-
aminer will assume that Williams and Crevier did, in fact,
argue over a requirement, stated by Crevier, that employees

SA Lea RINE CaO RE LM Nes

A-141

attend Bible studies. He is aware that Crevier-has never ad-
mitted that he said any such thing to the Charging Party
or that the two men argued over the issue, but Williams’
testimony to that effect is unrebutted and has been ac-
cepted as fact by the Hearing Examiner. However, there is
no evidence contradicting the testimony by Crevier and
Owens regarding the arrearage and collection policies of
the Respondents, and the Hearing Examiner finds the Re-
spondents’ rebuttal evidence regarding those issues to be
credible. The relevant policies are that a member who
is over three months delinquent in his dues will be referred
to the North Star Collections Agency and required to
pay up his arrearages and one-year’s dues in advance be-
fore being readmitted. While Joe Williams was never re-
ferred to North Star Collections or made to pay cash “up
front” for advance dues, Owens’ testimony to the effect
that he gave the Charging Party a “break” by requiring
only that he become current and sign a note to pay the ad-
vance dues is both unchallenged on the record and
credible. While the Complainant proved that Williams did
bring his arrearages and dues up to date, there is no evi-
dence that he paid the required year in advance or signed
a note pledging himself to do so. Since the Charging Party
violated one of the conditions of continuing membership
by not signing a pledge to pay one-year’s advance dues, a
condition that is neutral on its face and has not been shown
to be related to his religious beliefs, no denial of the pro-
vision of public accommodations because of religion has
been proven. The proximity in time of these events to Wil-
liams’ interview with Crevier is coincidential, and a causal
relationship has not been shown by a preponderance of
the evidence.

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The Respondents also allege that Mr. Williams was
loud, abusive, used vulgar language (against Club rules)
and once threatened physical violence against Marc Cre-
vier, prompting a call to the police, when he was denied
admission to work out because he was unable to show
Club receptionists that they were in error in thinking that
his dues had not been paid. Some of the incidents may
have been caused, in part, by a breakdown in the Re-
spondents’ computerized records which should have
shown Williams to be current, but the fact that Williams
behaved inappropriately has still been proven. The testi-
mony of Owens, Crevier and Frances Raynes (Taylor)
regarding Williams’ temperamental outbursts has heen
accepted by the Hearing Examiner as factual. While
Williams denied these allegations, the Hearing Examiner
is unable to attach sufficient credibility to those denials
to overcome the credible testimony of Crevier and Raynes
regarding his temperamental tendencies. Counsel for the
Complainant has urged the Hearing Examiner to take
note of the Charging Party’s exemplary behavior dur-
ing the hearing, especially under cross-examination re-
garding his alleged illiteracy, that may have provoked a
temperamental outburst from someone with the tendencies
the Respondents allege Williams possesses. The Hearing
Examiner is unable to attach any meaningful weight to such
observations, however, because the style employed by
Respondents’ counsel during the cross-examination was
polite and non-provocative. Furthermore, the record shows
that Williams had many stresses in his life during the sum-
mer and fall of 1980, the general time of the events that
lead to his expulsion from membership. He had been re-
cently divorced, a circumstance that left him “broke”. He

A-143

had also just quit his job to concentrate on body-building
competitions and thus had no steady stream of income.
Using Sports and Health’s facilities had become extremely
important to him. These circumstances, admitted to by the
Charging Party, tend to diminish the credibility of his al-
legations that he was able to hold his temper upon being
denied entrance to the place around which his life was then
centered. For these reasons, and those outlined above, the
Complainant has failed to prove by a preponderance of the
evidence that Joseph Williams was denied the services
of or expelled from the Respondents’ facilities because of
religion.

The Complainant has failed to establish that Joe Wil-
liams was a victim of discrimination in the provision of a
public accommodation under the Minneapolis v. Richard-
son standard because (1) there is no evidence that the Re-
spondents treated Williams differently than anyone else
who was deliquent his dues; and (2) the Respondents’ treat-
ment of Williams was not at variance with what would
reasonably be anticipated as a way to treat persons who
fall into arrears. That portion of the Complaint alleging a
denial to Mr. Williams of the full and equal enjoyment of
the Sports and Health Clubs has, therefore, been dismissed.

Miriam Cameron

The Hearing Examiner has granted relief to Ms. Camer-
on under Minn. Stat. § 363.03, subd. 3 because he is per-
suaded that the interrogation to which she was subjected
by Marc Crevier regarding the religious opinions presented
in her book was a denial to her of the full and equal en-
joyment of the services, facilities and privileges of mem-
bership in the Sports and Health Clubs because of religion.

A-144

Miriam Cameron is Jewish, and she wrote a book that
the Respondents view as contradictory to two basic tenets
of their religious beliefs. The first contradiction is that the
book acknowledges a number of ways to reach God, in
contrast with the Respondents’ belief that there is only
one way. Secondly, the book omits any reference to homo-
sexuality, which the Respondents believe to be sinful. Marc
Crevier told Cameron, in the women’s office of the LaSalle
Sports and Health Club, that those two problems with her
book made her book “dangerous” and, therefore, the Club
would not take notice of her work in its newsletter. The
problem is not with what he said, but with how he said
it. The Hearing Examiner believes Cameron’s testimony
that Crevier, with Frances Raynes (Taylor) present and
contributing only a minor role, repeatedly went over and
over the differences that the Respondents had with Camer-
on’s religious views, and continued to do so to the point
of harassment and ridicule. Cameron testified that the ex-
perience “overwhelmed” her and was “very painful’. She
added that she was “wiped out” and “totally demoralized”.
The Hearing Examiner also believes Michael Ormond’s tes-
timony that, when he arrived at the office to pick up Ms.
Cameron, Marc Crevier was “aggressively grilling” his fi-
ancee, who waz “obviously extremely uncomfortable .. .
faint, teary-eyed”. Ormond aiso testified that Crevier was
leaning over the desk, his jaw was firm, and he was ques-
tioning Ms. Cameron with a raised voice and an angry
look (like an “angry patriarch”) on his face. The Hearing
Examiner concludes that such circumstances, wherein
Cameron was iutimated, humiliated. and ridiculed because
of her religious views, constitute treatment so at variance
with what would reasonably be anticipated absent dis-

ee eer nx

de Ak eS Bo ne ee ee aT We

A-145

crimination (against a person whose religious views differ
from theirs) that discrimination is the probable explana-
tion for the Respondents’ conduct under the Minneapolis
v. Richardson test noted above under the Joseph (Joe)
Wiiliams subheading.

The record establishes that Ms. Cameron was treated
the way she was by Crevier (and, to a lesser extent, by
Raynes) because of her religious views. And it establishes
that the way she was treated is at variance with the treat-
ment that could reasonably be anticipated in such a sit-
uation. The Respondents have the right to refuse to pub-
lish notice of Cameron’s book in the Club newsletter for the
reason they stated—the book is something they choose
not to promote because it was perceived as differing in
philosophy from the religious views of the Respondents.
However, the fashion in which the rejection decision was
expressed goes far beyond what a Sports and Health Club
member should reasonably be held to anticipate. That is,
the member cannot be held to reasonably anticipate a deva-
stating verbal assault against her by a person representing
the Club because her religious views differ from those of
Club management. In so concluding. the Hearing Examiner
is mindful of the fact that the Respondents’ witnesses
(Crevier and Raynes) testified that Cameron herself ini-
tiated the events leading to the conversation by requesting
that notice of her book be published. and that the con-
versation was polite and intellectually-oriented. The Hear-
ing Examiner finds the question of who initiated the con-
sideration by management of a decision to publish notice
of the book’s existence to be of little concern because, even
if Cameron initiated the Respondents’ consideration of
whether to recognize her work, the focus of this inquiry is

A-146

the Respondents’ conduct in letting her know that recog-
nition was being refused. As to the issue of how Crevier
behaved during the conversation, it is concluded that the
recollections of Cameron and Ormond are more credible
than those of Crevier and Raynes. As indicated above,
the Examiner found Cameron and Ormond to be complete-
ly believable witnesses. He feels the same way in general
about Marc Crevier, but concludes from a general analysis
of the record and from observing him during the course of
the 14-day hearing that Mr. Crevier is very defensive,
opinionated and doctrinaire regarding his particular reli-
gious beliefs. He reacts swiftly and in a heavy-handed man-
ner against any religious-based dissent or criticism—for
example, Robin Carnahan and Beverly Larsen were dealt
with swiftly and heavily when they raised religious-based
dissent to Club management. In addition, Mr. Crevier be-
lieves that his religion requires him to be fervently evan-
gelistic regarding his beliefs, and that it is important to
“witness” for Jesus Christ by attempting to convince others
to embrace “Born-Again” Christianity. Given these tenden-
cies of Mr. Crevier, it is not difficult to believe that he came
down upon Ms, Cameron in a heavy-handed fashion be-
cause of what he perceived her beliefs to be. The charging
Party came to the LaSalle Sports and Health Club for a
physical work out, and could not have reasonably antici-
pated that a ordeal of rigorous mental and emotional exer-
cises would follow. Frances Raynes’ testimony is the only
evidence regarding the conversation in question that comes
from a witness who has no financial stake in the outcome
of this case, but the Hearing Examiner is unable to assign
a great deal of weight to her recollections because she ad-
mitted in her testimony that she is a “Born-Again” Chris-

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tian because of Mr. Owens’ influence and that the Re-
spondents treated her very well during her employment
with them, ultimately promoting her to managership of
one of their Clubs. It is also concluded that Crevier and
Raynes are less likely to recall in detail a conversation
which, given their approach to “Born-Again” Christianity,
represents only one of many instances in which they have
attempted to convince persons of their religious views,
than Cameron and Ormond, who are likely to remember
vividly the details of a conversation that formed the basis
of their decision to resign from membership and file
charges of discrimination.

The fact that Cameron remained as a Club member for
approximately four or five months after her humiliating
experience presents a problem, however, because it tends
to establish that the treatment of her during the August,
1980 conversation may not have been as troublesome to
her as she has implied. However, the Hearing Examiner
has decided to accept the Charging Party's explanation to
the effect that she kept up her membership as long as she
did because she still desired to work out, the Respondents’
facilities were (and are) outstanding and the dues are rel-
atively inexpensive compared to those at other health clubs.
In addition, the trequency of her visits to the Club dropped
off after the incident in question. She decided to drop out
because the Respondents continued to post the signs to
which she had objected, leading her to conclude that the
Respondents really were anti-Semitic. This explanation is
reasonable and deserves credence, given the treatment she
received due to her religious views in August, 1980.

The Hearing Examiner has decided that a payment to
Cameron of $230, with interest. from the Respondents is

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appropriate compensation for Cameron because that figure
represents her initial membership fee. Although she de-
manded a $350 refund, it is appropriate to subtract her
monthly dues for the first year ($120) from the award be-
cause there is no evidence showing Cameron did not fully
use the clubs’ facilities during her first year of member-
ship.

Michael Ormond

The Complainant has not proven a case of discrimination
against Mr. Ormond, who is Jewish, in the provision of its
services and facilities as a public accommodation because
of religion under the Minneapolis v. Richardson standard
laid out under the Joseph (Joe) Williams subheading. Since *
there is no evidence suggesting that Mr. Ormond was hu-
miliated or intimidated because of his religious beliefs dur-
ing the brief time he was involved in the conversat:cit
that forms the basis for Miriam Cameron’s recovery, the
basis of his charge is that the “general atmosphere” of the
Sports and Health Clubs he used was anti-Semitic and,
because of this, he was denied the full and equal enjoy-
ment of the services, facilities and privileges of the public
accommodation because of his religion (Jewish). The evi-
dence supporting this charge is the increasing dissemination
of fundamentalist Christian literature in the lounge and
lobby areas during the time of Ormond’s membership and
the proliferation of signs at LaSalle «which caused offense
to him as a Jewish individual. The most offensive such
sign to him, the one that he asked, unsuccessfully, to be re-
moved, and the one which most directly attacks Judaism

seen ae

A-149

is the large poster at the entrance to the LaSalle Club’s ex-
ercise floor which branded Judaism as a “False Cult”.’
There is no evidence indicating that the Respondents
refused to allow Mr. Ormond to enter its Clubs and use
their exercise facilities and equipment, that any of the
services offered to members (such as a program of exercise
and diet) were denied to him, or that he was excluded from
any privileges that go along with being a member in
good standing. In addition, the recoru shows that he could
have gone elsewhere, and ultimately did so, if the literature
and signs bothered him to the point of making continued
membership in their Health Club impossible. The record
fails to show that the Respondents have a monopoly in the
Twin Cities area on exercise facilities and personal service
to persons who want to work out and improve their health
and dietary habits. Finally, Mr. Ormond’s and Ms. Camer-
on’s charges are the only ones which have been brought
to the attention of the Hearing Examiner ‘n an effort to
prove that the Respondents’ dissemination of literature and
posting of signs proclaiming their “Born-Again” Christian
beliefs is a practice that prevents anyone from the full and
equal enjovmenrt of the services and facilities of the Sports
and Health Clubs. Absent evidence indicating otherwise,
the Hearing Examiner assumes no similar grievances have
been made to the Human Rights Department. The implica-
tion that none of the thousards of other persons. drawn
from the general public, who used the Clubs took offense
sufficient to prompt them to complain to the Department
of Human Rights is extremely significant beccause it tends

*For purposes of this discussion. the Hearing Examiner assumes that Mr.
Ormond’s description of the sign, showing Judaism denominated as a
“False Cult” is accurate, even though the Respondents’ testimony is that
the sign may have had a different heading.

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to establish that the material which offended Mr. Ormond
and Ms. Cameron may not be offensive enough to cause a
reasonable person to feel that they are not able to freely use
the services and facilities which the Respondents offer. Or-
mond’s charge is also weakened by the fact that he retained
his membership for several months after the placement of
the literature and posting of the signs that offended him.
Under the Minneapolis v. Richardson standard, the Com-
plainant has failed to prove by a preponderance of the evi-
dence that either of the alternative methods of establishing
an unfair discriminatcry practice with respect to Michael
Ormond because of religion has been met. First, it has not
been shown that Ormond was treated adverselv or different-
ly from any other Club member due to his being Jewish
(or of any other persuasion with which the Respondents
disagree) because the signs and literature to which he took
offense are in the plain view of everyone who uses the
Club and the Charging Party was never denied the use of
any facilitv. service or privilege the Club offered to any-
one else. The second Minneapolis v. Richardson test,
treatment so at variance with what would reasonably be an-
ticipated absent discrimination that discrimination is the
probable explanation, has not been met because there is no
factual showing that the treatment of Ormond was at var-
lance with what would reasonably be anticipated by one
who joins a facility such as the Respondents’. A person
who joins a Sports and Health Club can reasonably antici-
pate the use of the exercise area and equipment provided,
personal service in developing a program of exercise and
diet, and the freedom to use the facilities which provide for
relaxation and hygiene such as saunas, whirlpools, showers
and the like. Nothing in the record indicates that the Charg-

A-151

ing Party was denied any of these things. There is also no
evidence that any of the Respondents’ employees or agents
intruded upon Ormond with an oral appeal to accept the
Respondents’ religious opinions. As implied in the preced-
ing paragraph, there are any number of persons who may
have used the facilities at the LaSalle Club, seeing the same
sign that caused Ormond to file a charge, and who belonged
to one of the religions the sign called a “False Cult’, but
none of them have been shown to have filed a charge alleg-
ing discriminatory treatment. None of the signs or literature
found offensive by the Charging Party were directed per-
sonally at him, or specificaliy at Judaism alone. And Ormon
continued to use the Club on an intermittent basis for
several months prior to requesting a refund of his member-
ship fee, during which time the signs and literature that
offended him were still on the premises. The Hearing Exam-
iner concludes that the essential element of the second
Minneapolis v. Richardson test, treatm2nt at variance
with what would reasonably be anticipated in a place of
public accommodation, has not been established. Absent
any evidence that Mr. Ormond was denied the use of
the Respondents’ facilities, the charge that he was discrimi-
nated against in using a place of public accommodation
due to his religion must be dismissed.

In arriving at this result, the Hearing Examiner has con-
sidered the content of the literature and signs which Mr.
Ormond found offensive and which the Complainant main-
tains denied the Cnarging Party the full and equai enjoyment
of the Sports and Health Clubs. The Hearing Examiner be-
lieves that the obvious purpose of the signs and pamphlets,
passive forms of speech. were to proselytize (or attempt
to convert) the readers, not to insult them. As such, they are

\ A-152

protected speech under the Minnesota and United States
Constitutions. See. Chaplinsky v. New Hampshire, 315 U.S.
568, 62 S.Ct. 766 (1942) and Terminiello v. Chicago,
337 US. 1, 69 S.Ct. 894 (1949), which protect the ex-
pression of an opinion that falls short of “fighting words”
and is not likely to produce a clear and present danger of a
serious substantive evil that rises far above public incon-
venience or annoyance, In Beaucharnais v. Illino’s, 343
U.S. 250, 72 S.Ct. 725 (1952), the Court was faced with a
“sroup libel” situation where persons were distributing
handbills that viciously attacked all black people. The
standard adopted by the Court was that such “speech”
was not protected if it was productive of breach of the
peace or riots. The “False Cults” sign, and others de-
scribed on this record, do not reach that level of intensity.

THE RELIGIOUS CORPORATION EXEMPTION

Minn. Stat. § 363.02, subd. 1, grants exemptions to
Minn. Stat. § 363.03, subd. 1, which enumerates unfair
discriminatory practices in employment. Section 363.02,
subd. 1(2) reads:

“The provisions of section 363.03, subd. 1, shall not
apply to...:

(2) A religious or fraternal corporation, association,
or society, with respect to qualifications based
on religion, when religion shall be a bona fide
occupational qualification for employment;”

On March 2, 1984, the Hearing Examiner issued a
Letter/Order to Counsel for the parties, ordering them
to file Supplementary Briefs on certain issues raised by the

A-153

Hearing Examiner. Among those Orders is a request that
Counsel for the Respondents explain “. . . why, in light
of the fact that the Respondents have never pleaded an
exemption under Minn. Stat. § 363.02, subd. 1(2) (for re-
ligious corporations), the Respondents have not violated
the applicable provisions of Minn. Stat. § 363.01, subd 1?”
This question was one of a series that was asked regarding
the Respondents’ practice of inquiry into a person’s re-
ligious beliefs prior to hire, in light of the Respondents’
stated defense based on bona fide occupaticnal qualifica-
tions (“b.f.o.q.”). The issue of b.f.o.q. exemptions in general
will be explored in greater detail under a subsequent
heading.

In his Supplemental Memorandum in Respoxse to the
Hearing Examiner’s Letter/Order, filed on March 26, 1984,
Counsel for the Respondents requested that the Hearing
Examiner waive the possible technical defect in pleading
that exists by the Respondents’ failure to plead the £ 263.02.
subd. 1(2) exemption if the Hearing Examiner is con-
vinced that the evidence shows that the Sports and Health
Club, Inc., otherwise fits the requirements of the exemp-
tion.

The Hearing Examiner is unable to grant Counsel's re-
quest, even if the Respondents Sports and Health Club,
Inc., qualifies as a “religious corporation” within the mean-
ing of the exemption, because the defense was not pleaded.
In addition, after careful consideration, the Hearing
Examiner has decided that Sports and Health does not
qualify for the exemption.

The Hearing Examiner concludes that the exemption
granted in § 363.02, subd. 1, app'ies only to corporations,
associations or societies whose primary purpose is ecclesi-

A-154

astical, which is defined as “of or relating to a church,
especially as a formal and established institution” or “of
or relating to the formal and established institutions or
government of any religion”. Webster’s Third New Inter-
national Dictionary (1971). Sports and Health Club, Inc.,
is not such an organization. The primary purpose of the
Clubs is to provide exercise and health services to its mem-
bers for a fee. The fact that the Respondents operate the
Clubs in a manner based on their religious convictions is
incidental to the primary purposes of the business. There-
fore, the Respondents do not qualify for the exemption ac-
corded religious corporations from the unfair discrimina-
tory practices in employment sections under Minn. Stat.
§ 363.01, subd. 1.

Several federal court cases have interpreted the exemp-
tion comparable to Minn. Stat. § 363.02, subd. 1(2)
granted at § 2002e.2 of 42 U.S.C. (Title VII of the Civil
Rights Act). A review of those cases, most of which deal
with organized churches and organizations that they own
or control, shows that the focus of the Courts’ inquiries
has been on whether the employment in question is con-
nected with the employer’s “religious activities” or is a
matter of “prime ecclesiastical concern”, as distinguished
from the performance of a “secular” function.

If an employer survives the threshold inquiry of whether
it is, in a general sense, a religious Organization. religion
must still be a bona fide occupational qualification for the
employment in question in order for the exemption to ap-
ply. In this case, the Hearing Examiner has concluded that
the primary thrust of the employer's organization is secular
and not grounded in religion because exercise and health
service facilities. such as the Sports and Health Clubs, do

A-155

not render a product or services primarily related to re-
ligion. However, two recent Federal Circuit Court de-
cisions are useful in analyzing how the Hearing Examiner
would rule on the issue if he had been convinced that the
Respondents operated a “religious” organization. The
first, EEOC v. Mississippi College, 626 F.2d 477, cert. de-
nied, 101 S.Ct. 3143 (1981), inv Ives teachers at a reli-
gious school. The Court states, at 626 F.2d 485:

“That faculty members are expected to serve as ex-
emplars of practicing Christians does not serve to
make the terms and conditions of this emp!oyment
matters of church administration and thus purely of
ecclesiastical concern”.

In the case of EEOC v. Pac’fic Press Publishing Associa-
tion, 676 F.2d 1272 (9th Cir. 1982), wherein a woman
who functioned as an editorial secretary for a non-profit
religious publishing house which was affiliated with the
Seventh-Day Adventist Church, the Court held that her
position, at its broadest, did not fulfill the function of a
minister, nor was her employment at the publishing house
the type of critically sensitive position within the church
such that Title VII’s religious organization exemption ap-
plied. The lower Court decision in the same case, reported
at 482 F.Supp. 1291 (No. D. Calif.), found it important,
as does the Hearing Examiner in a case like this matter,
to determine whether an institution has “segregable secular
components” and that “those are what are being regulated”.
482 F.Supp. at 1311. This inquirv becomes significant
again in analyzing the issue of whether enforcement of the
Minnesota Human Rights Act against the Respondents
constitutes an unconstitutionally impermissible “establish-

A-156

ment of a religicn”, or infringes on the Respondents’
“free exercise of religion”, which issues will be decided
under subsequent headings in this Memorandum. At
this point, it is enough to hold that the Respondents fail
to qualify for exemption from Minn. Stat. § 363.03, subd.
1, because the activities of the Respondents under scru-
tiny as a matter of the charges herein are primarily, if not
wholly secular.

BONA FIDE OCCUPATIONAL QUALIFICATIONS
(B.F.O.Q)

Minn. Stat. § 363.03, subd. 1, lists unfair discriminatory
practices in employment. The first words of that statute,
however, grant a blanket exception, as follows:

“Except when based on a bona fide occupational
qualification, it is an unfair employment practice:

”
.

The Respondents have interposed the bona fide oc-
cupational qualification (b.f.o gq.) defense throughout this
action with respect to hiring and/or promoting certain
persons because of religion or marital status. They admit
that they will not promote anyone into management who
is not a growing, “Born-Again” Christian. They admit that
it is their policy not to hire persons they reasonably believe
to oe fornicators, because their religious beliefs lead them
to conclude that such persons are immoral. They argue
that they should be able to inquire, prior to hiring. about
the personal or religious beliefs and life styles of prospec-
tive emplovees in order to determine “what kind of per-
son(s) they are”. They believe that such inquiries are the
only way to find out whether the applicants possess the

A-157

“teachable spirit” and “disciplined life style” they seek in
their employees. Their religious convictions forbid them
from elevating into management persons whose religious
beliefs and practices are different from theirs (which they
view as the only way to God) because such elevation
would constitute an “unequal yoking” of themselves and
“unbelievers” in defiance of God’s law. Even though they
enforce such practices, the Respondents allege that they do
not conflict with the unfair discriminatory practices listed
in the statute because their practices are based on b.f.o.q.s.
Those portions of the Respondents’ arguments noted above
which should be more properly discussed under the “free
exercise of religion” heading below will be analyzed in that
portion of this Memorandum.

In commenting on a case invoiving whether an em-
ployer’s anti-nepotism policy violated the marital status
provisions of § 363.03, subd. 1, the Minnesota Supreme
Court stated:

“Acknowledging the fundamental nature of the re-
lationship, the legislature in drafting the Minnesota
Human Rights Act intended that only where a bdus-
iness necessity is compelling and overriding may an
employer differentiate on the basis of marital status.
To justify such an employment policv. an employer
must advance a bona fide occupational qualification
which will withstand the strict scrutiny of a reviewing
court. Mere business conven‘ence is insufficient.”
Kraft, Inc. v. State, 284 N.W.2d 384. 386 (Minn.
1979) (emphasis supplied).

Justice Wahl, with Justice Yetka joining. recently ar-
ticulated the opinion that b.f.o.q.s. must be “inherently

A-158

required by the nature of the business” in a dissent from
an opinion that did not reach that issue but ruled on an-
other aspect of marital status discrimination. Cybyske vy.
1.D.S. #196, Case C9-83-539, Finance and Commerce, 4/
6/84.

The Eighth and Fifth United States Circuit Court have
adopted a two-pronged test which the Hearing Examiner
has found useful in analyzing the Respondents’ b.f.o.q.
claims with a view to determining whether they have shown
a “compelling and c-erriding business necessity” for the
exclusion from its employ of certain classes of workers.
The standard for analysis is: (1) the employer must demon-
strate that the job qualifications he invokes to justify his
discrimination are “reasonably necessary” to the essence of
his business;* see, Houghton v. McDonnell-Douglas Corp.,
573 F.2d 561 (8th Cir. 1977), and Usery v. Tamiami
Trail Tours, 531 F.2d 236 (Sth Cir. 1976) and (2) whether
the employer has a factual reason for believing that mem-
bers of a certain class are unable to perform the job; see,
Weeks v. Southern Bell Telephone and Telegraph Com-
pany, 408 F.2d 228, 235 (Sth Cir. i969). These cases al-
low an employer who has made such a demonstration to
inquire of or solicit the class information from an em-
ployee or prospective employee if that is the only way to
learn whether the employee possesses the trait (such as re-
ligion or marital status). See, Larson, Employment Discrim-
ination, Vol. 3, § 100.13.

The above-cited cases involve qualifications based on
age (Houghton and Usery} and sex (Weeks), and they rep-
resent a liberal (for employers who seek to invoke class-

‘This test closely parallels Justice Wahl’s opinion that a b.f.o.q. must relate
to an inherent requirement of the employer's business.

A-159

based qualifications for employment) departure from the
“extremely narrow” construction approach taken in later
(than Weeks) sex discrimination cases such as Rosenf eld
v. Southern Pacific Co., 444 F.2d 1219 (9th Cir. 1971)
and the United States Supreme Court’s opinion in Dothard
v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720 (1977). This
test, as articulated by the Rosenfieid Court at 444 F.2d
1224, is:

“Based on legislative intent and on the Commission’s
interpretation, sexual characteristics, rather than
characteristics that might, to one degree or another,
corrolate with a particular sex, must be the basis for
the application of the B.F.O.Q. exception.”

In other words, the “extremely narrow” view is that “sex”
in the b.f.o.g. exception refers to sexual characteristics
as such, rather than to non-sexual traits that are asso-
ciated with one sex either by widely prevelant sterotyped
views or even by statistically proved evidence. One obvious
example of permissible specification of sex would be an-
nouncing that only women need apply for a job of attend-
ant in a women’s toilet. A classic example of the more de-
batable specification found by the Rosenfield and Dothard
Courts would be the barring of all women from jobs re-
quiring the lifting of heavy weights, such as 50 or more
pounds. Larson, Employment D’scrimination, Vol. 1, 8§§
13.00-14.00. The prevailing view is that the Rosenfield-
Dothard “extremely narrow” test will not be applied in
areas other than discrimination because of sex, thus making
it easier for an employer to prove existence of a b.f.o.q. in
areas such as religion and marital status. Larson, Em-
ployment Discrimination, Vol. 3. § 100.12. One United

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States Circuit Court, the Seventh, has adopted a broader
view than the above-noted second prong (the Weeks
standard. In Hodgson v. Greyhound Lines, Inc., 499 F.
2d 859 (7th Cir. 1974), cert. denied, 419 U.S. 1112
(1974), the employer was allowed to invoke a b-f.o.a.
based on age if it could show that it had a “rational basis
in fact to believe that elimination of its maximum hiring
age will raise the likelihood of risks to passengers”. (Em-
phasis supplied.)

The Hearing Examiner will address below the various
types of employment practices invoked by the Respondents
against the Charging Parties herein, and against other per-
sons who testified at the hearing, in an attempt to de-
termine whether they meet the test for establishment of
b.f.0.q.s.

Religious-based questions before hiring

The Respondents routinely asked job applicants if they
pray regularly, whether they go to church, if they believe
religion is a private matter, if they and their spouses pray
and/or worship together, and whether they would be
“uncomfortable” in a work atmosphere of evangelistic
fervor on the part of their co-workers. On occasion, they
directly ask if an applicant is a Christian. They ask these
questions, because, among other reasons, they will not
knowingly hire anyone who is “antagnostic to the Gospei”.
They are also interested in finding out if the applicant
possesses the “teachable spirit” and “disciplined lifestyle”
they deem necessary in their employees in order for the
business to succeed (because the employees are constantly
undergoing training and the work rules are strict). They

A-lol

also do not want to hire persons wh» will not fit in with
their present employees.

The Hearing Examiner is unable to conclude that the
Respondents have shown that it is “1easonably necessary”
to the essence of their business to exclude persons who
they believe give the “wrong” answers to the above-noted
questions (and thus form a class which is discriminated
against because of religion). The essence of the employer's
business is not a “discipleship for Christ”, as Owens once
told Robin Carnahan, but rather the operation of an ex-
ercise emporium. The Respondents argue that everyone
has a religion. and that the person’s religion controls his
personality. This approach, a belief in itself, has not been
(and perhaps cannot be) demonstrated objectively. The
Hearing Examiner agrees that an employer who operates
a service-oriented business should be able to find out
“what kind of person(s)” the interviewees are, to ascertain
whether they possess a “teachable spirit” and/or a “dis-
ciplined lifestyle”, and to try to determine whether a pros-
pect for hire would be compatible with the rest of his staff.
But, he

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0276%3A2. Public record. Not legal advice.