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Nurse-midwife sues Tampa clinic for not hiring her for job she wouldn’t perform

Caperton

Tampa Family Health Centers is a Title X health care facility in Florida that found itself in need of certified nurse-midwives. Up-and-comer Sara Hellwege graduated from nursing school in June, took her boards in July, and is all about certified nurse-midwifery, except for the part where she would have to provide health care because that would violate her religiously held but not scientifically supported beliefs that hormonal contraceptives “have the potential to act in a manner potentially threatening the lives of embryos after their conception/fertilization.” (Hellwege just happens to be a member of the American Association of Pro-Life Obstetricians and Gynecologists, who themselves have said that the aforementioned belief is unfounded. But whatever, because now religious beliefs, no matter how bogus, are respected as fact.)

With that in mind, in April Hellwege applied for a job at Tampa Family Health Centers, which doesn’t respect said religious belief as fact because they deal in science. The human resource director asked if Hellwege really did want the job, in light of the fact that it would require her to do things she thought was a sin and that, in fact, the health center itself was chock-full of services that Sara might consider evil.

Specifically, the e-mail exchange (PDF there) went something like this. (Sics all around.)

Chad Lindsey:

To inform you, we are a Title X organization and I see that you are part of the American Association of Pro-Life Obstetricians and Gynecologists Society.

Would this be a reason for you to decline and interview if offered one?

Hellwege:

Yes, I am a member of AAPLOG. Due to religious guidelines, I am able to counsel women regarding all forms of contraception, however, cannot Rx it unless pathology exists- however have no issue with barrier methods & sterilization. If offered an interview, is there a position available for antepartum & laborist only, or do all CNMs perform postpartum & well woman/preventative care?

Lindsey:

Due to the fact we are a Title X organization and you are an member of AAPLOG, we would be unable to move forward in the interviewing process. An unfortunately, we do not have any positions for antepartum & laborist only.

Hellwege:

To clarify, I am not merely seeking a position that encompasses antepartum & laborist care only. I was asking about that option only so I would know if it was available. I would still desire to apply for a position that includes postpartum & well woman/preventative care as well as antepartum & laborist care, within the religious and moral parameters I stated previously. With that clarification, is it still possible for me to move forward in your application process?

He didn’t reply. It would have been nice for him to send a final e-mail saying, “Nope, thanks for your interest, but we’re going to move on with candidates who don’t have religious objections to performing the job they’re applying for.” Still, “We’re an organization that provides family planning services, and you belong to an organization that opposes family planning services, so we’d be a bad fit, but thanks for your interest in the position” seems fairly clearly implied in the e-mail exchange.

So she’s suing.

“No one deserves to suffer discrimination just because they’re pro-life,” said ADF Senior Legal Counsel Matt Bowman. “Federal and state law make it clear that being pro-abortion cannot be a prerequisite for employment, nor can federally funded facilities force nurses to assist with practices that could lead to abortion.”

Of course, Sara wouldn’t be assisting with practices that could lead to abortion (by nature of hormonal birth control not leading to abortion), and Tampa Family Health Centers wouldn’t be forcing her to do anything other than not start work at Tampa Family Health Centers.

This is no less ridiculous than any of the similar cases that have come up since the passage of “conscience clause” laws across the country. In any other situation — if a person was rejected as a FedEx driver because he believed internal combustion engines were ruining the environment — no company would receive guff for not hiring someone who stated up front that he or she wouldn’t perform the job for which he or she had been hired.

Did Lindsey reject Hellwege’s application based “solely [on] her religious and moral objection and her membership in an organization of people possessing such an objection”? He did do a pretty good job of making it sound that way in his e-mails. But she did a pretty good job of making it clear that her religion precluded her from performing duties that would be assigned her. I have a pretty good idea that TFHC would still be happy to consider her application if she belonged to AAPLOG but would nonetheless be willing to do the job she was hired to do.

And yet, according to the ADF, this unwarranted rejection has subjected Hellwege to lost wages, humiliation, and emotional distress and harm, and thus she is owed in excess of $400,000, plus attorneys’ fees, plus they have to let her apply for the job she has already told them she wouldn’t be willing to do and not discriminate against her on the grounds that she she wouldn’t be willing to do it. Because that makes tons of sense.

27 thoughts on Nurse-midwife sues Tampa clinic for not hiring her for job she wouldn’t perform

  1. “have the potential to act in a manner potentially threatening the lives of embryos after their conception/fertilization.”

    Wow, “potential” and “potentially” in the same sentence? That’s not just hedging your bets, that’s a lovingly-maintained hedge maze with a water feature in the centre.

  2. Mr. Lindsey would portray a lot more authority if he learned the difference between ‘an’ and ‘and.’ Quite frankly, his stupid emails are the sole reason this case is going forward. If you’re not going to interview someone, don’t interview them.

    1. It’s called a typo genius, man your level of analysis of these issues always astounds me (astounds me at how shallow and banal it is, just so we’re clear)

      1. To defend Steve, while I thought his first point was largely irrelevant, he is correct that the clinic official committed a large faux pas here. If the clinic has simply provided no reason for not interviewing this woman or provided a vague reason about “better candidates,” there would likely be no suit – simply because all she would have would be a suspicion and/or conjecture that her pro-life views were the cause. However, by coming out and basically stating this as the reason for their refusal to consider her, he did, sadly, hand her a golden opportunity to make hay of the situation and file suit.

        1. So, I’m obviously not a lawyer, but is that legitimate? If your religion prevents you from performing a job, can you honestly sue because you’re not selected on the basis that you can’t do the job?

        2. So, I’m obviously not a lawyer, but is that legitimate? If your religion prevents you from performing a job, can you honestly sue because you’re not selected on the basis that you can’t do the job?

          My point about the emails is that he didn’t stick to just asking her about whether or not she could do the job. He brought up her political affiliations, although to be fair, she may have listed that on her resume. Having said that, I wouldn’t want the fact that I volunteered for Hilary Clinton in the NY Senate race used against me in a potential job interview situation, though I would probably list it on my resume, if I was working in a field where cold calling was relevant.

        3. To be clear, I don’t think she should win the case. I’m merely saying that Mr. Lindsey handed her the ammo to take this thing to trial.

        4. PrettyAmiable: that depends. The current law provides that an employer should offer to “reasonably accommodate” religious beliefs. That could mean that a Jewish employee could be entitled to not work the hours of the Sabbath, or that a Muslim employee could be entitled to short prayer breaks, etc.

          But that is a really fact-based metric. What is “reasonable” depends upon the employer, the employee, and exactly how much accommodating them would involve. In this case, it would at least seem, facially, that the clinic simply could not reasonably accommodate this woman. Presumably, well woman/contraceptive care would be a fairly large part of the practice of any nurse-midwife. If she refused, how much work would there actually be for her? How would the work she refuses to do be dispersed among the other employees? A court would concern itself primarily with the question of whether accommodating this woman would be reasonable for the employer. Which, to a reasonable mind would seem like a resounding NO, but its a fact analysis each time.

        5. A court would concern itself primarily with the question of whether accommodating this woman would be reasonable for the employer. Which, to a reasonable mind would seem like a resounding NO, but its a fact analysis each time.

          Could she argue that she wasn’t given the opportunity to clarify her position? I have no idea if ‘Rx-ing’ contraception is vital to the job. If he said ‘we can’t hire anyone who won’t Rx Contraception.’ rather than ‘due to the fact that…you are an member of AAPLOG, we would be unable to move forward in the interviewing process’ do you think that would have prevented the lawsuit going to trial?

        6. I agree: for someone who is the head of HR that was a pretty stupid move.

          In particular, saying “we won’t hire you because you’re a member of a pro life group” was a mistake, as opposed to saying “we won’t hire you” or “we won’t hire you because we require all staff nurses to be willing and able to cover for all of our services” or whatever.

          Hopefully that mistake won’t lead to a lot of bad precedent.

      2. It’s called a humorous aside {comma}, genius. It’s funny that you call me shallow, when you can’t tell the difference between my opening jokey sentence and the actual analysis in the following two sentences.

        Also, one ‘an/and’ typo is acceptable, I suppose (though it’s still highly unprofessional in my opinion not to proof-read a 3 sentence email.) However two typos of the same ‘an/and’ variety indicates either extreme carelessness or an issue with this word which would make not proof reading a 3 sentence email also extremely careless.

    2. He should have just said. “I’ve decided not to move forward with your application” Though, I guess he was surprised she was applying at all and wanted more information.

    3. Err, I work in the same field this article is talking about, and standard practice is to ask ALL applicants if they have an issue with the fact that their employer does abortion-related stuff. I don’t know if wasting time with this applicant in the first place was a smart move, but these questions are hardly stupid.

      1. Err, I work in the same field this article is talking about, and standard practice is to ask ALL applicants if they have an issue with the fact that their employer does abortion-related stuff. I don’t know if wasting time with this applicant in the first place was a smart move, but these questions are hardly stupid.

        The stupid bit was saying ‘we can’t hire you because you’re a member of AAPLOG’ as opposed to saying ‘we can’t hire you because you refuse to Rx birth-control, which is vital to the job.’

      2. To be fair, Mr. Human Resources in essence implied both in his last email. “Hi, we can’t hire you because you belong to an association that refuses to comply with our job requirements… and also we don’t have positions for the job you actually want, genius.” But yes, this could have been handled much more intelligently, though I’ll change my mind if this results in a ruling which definitively asserts that requesting to discriminate against female patients isn’t a religious right.

        1. But yes, this could have been handled much more intelligently, though I’ll change my mind if this results in a ruling which definitively asserts that requesting to discriminate against female patients isn’t a religious right.

          I would be so, so incredibly happy if that’s how this ended. I would buy that HR person flowers.

  3. I feel sort of bad that I read the emails and thought “That was dumb.” Frankly, a part of me does sort of smell a set-up, because one thing that was always impressed upon me during law school was that it was always very smart to leave off of the resume any group affiliations that would reveal one’s political or moral leanings or feelings (unless one was applying to places where such memberships would be an asset). I can’t imagine other schools don’t also advise as such, simply because you never know who would see your resume.

    I can’t imagine that membership in a pro-life organization wouldn’t raise eyebrows at a family-planning clinic, so I am slightly curious as to why the clinic even reached out to the nurse in the first place. My presumption would be that such a resume would be simply tossed. Maybe she was persistent, but frankly, the less information they gave her, the better. I find myself sort of agreeing with Steve that the clinic did itself no favors by even enaging with her.

    1. It’s kinda sad that in the US trying to engage with an applicant who’s not quite perfect for the job is so dangerous.

      If you look at it ethically, his attempt to make it work out despite her religious objection is much better then a flat out “immediately reject all that don’t fit the mold.”

      These cases just accelerate the rejecting of people who are even a little bit outside of the 100% bland ideal.

      You’re a Feminist? Better not take the chance, just write a “Sorry, we have filled the position / We’ll keep your resume in mind, thank you” letter.

      1. It’s a sad comment on how the pro-life community has conducted itself, but really, the most prudent attitude that a provider of reproductive care should take toward one of them is that this is a person who is looking for a way to put your head on a stick.

    2. I definitely smell a set-up, and it’s really not much of a leap since the big pro-life legal groups have made it clear that they’re going to continue to aggressively pursue the test case strategy. I don’t get the sense that they’re quite ready to take on Roe yet, but they’re seeing a lot of success in stripping away layers of the protection afforded under Roe (e.g. the MA buffer zone ruling), as well as their wildly successful strategy of using state legislatures to impede access and shut down clinics (see Texas where the right to get an abortion is becoming largely academic). This is their time and they know it and they’re ready. I truly hope progressive groups are prepared to counter with more than angry blog posts, or one of feminism’s great triumphs will be totally dismantled.

  4. Ah, I should add that a few months ago, this case probably wouldn’t be nearly as potentially interesting, but since we are post-Hobby Lobby now and SCOTUS has made clear how it thinks about religious beliefs, this case might actually have the makings for some interesting (albeit depressing) precedent.

    And people want to know the consequences of what SCOTUS wrought? It’s starting now.

    1. I agree. A few months ago my mates and I would probably be like, “Ha, ha, this person has no brain if they think this will fly with anyone.” In a post-Hobby Lobby world though, we shouldn’t be surprised if in a few years the courts rule that Republican bosses can deny HIV medication to LGBT employees.

  5. Well, my religion is DEVO, and our Sacred Text is “Toil Is Stupid.” I will be shortly filing suit against any and all employers that attempt to make me work more than absolutely necessary. And I will apparently be able to sue employers who refuse to hire me based on my unwillingness to work more than 4hrs/day. This will be fun! Energy domes for everyone!

  6. IANAL, and correct me if I’m wrong, but isn’t “doesn’t have to actually do the job” pretty much the official example of an unreasonable accommodation not required by EEO?

  7. I have heard that there is a shortage of qualified nurses, at least in some geographic areas. I wonder if that is why the personnel guy took the risk of this extra communication, because they are really desperate for candidates.

    Usually any resume with any indication of a potential red-flag “issue” in it, like her membership in that organization, would immediately, but quietly, go on a reject pile. She and all the other applicants might get a letter after the successful candidate was on board, or at least signed an acceptance letter, something bland about “there were many excellent candidates, making our choice a hard one, but you weren’t it, we wish you luck in your future endeavors, etc., etc.” They might never get an acknowledgement of having applied at all. Employers are not required to so acknowledge applicants and many don’t.

    If they were so desperate that they still wanted to interview her and see if it might work out, they could have just invited her without comment. I’m guessing the process would have at least one portion that would involve a set of interview questions that would be the same for ALL applicants, worded the same and asked in a more or less “neutral” and identical manner for all and the answers noted without comment. They could have included a question something like, “This duties of this position require x, y and z [however many things it is]. Is there any reason that you would not be able to perform any of these duties, with or without reasonable accommodation?”

    If she then said, “My beliefs prohibit me from dispensing birth-control pills,” they would have dispassionately noted it and moved on without comment. At the end, when they hired somebody else, she would get the same, bland but pleasant letter. No explanation of why she wasn’t hired. If she called to ask, same thing. Vague generalities, have a nice day. Even if she filed a complaint with the state or feds, there are still plenty of ways to fend it off, as long as the person you did hire is qualified.

    So, yeah, the personnel guy was either kind of stupid or just wasn’t trained very well.

  8. Ugh. This is a blatant setup, and the HR person was really foolish for framing it as a question of affiliation instead of utter lack of qualification for the job.

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