Suitable Work SW 90
This section discusses refusals of work due to a conscientious objection to some aspect of the prospective employment.
In most cases, it will not be necessary or appropriate to determine whether an individual’s personal beliefs constitute a bona fide conscientious objection since the matter of whether good cause exists for the refusal of referral or work can be evaluated by focusing on the precise reason for the refusal and by then consulting the applicable section of the BDG.
A. Conscientious Objection
Conscientious objection means an objection by an individual to performing an act that the individual sincerely believes is wrong. The objection may be based on ethical, moral, religious, or philosophical grounds. When directly related to working conditions, a conscientious objection is considered to be a compelling reason for restricting availability for work, voluntarily leaving work, or refusing a job offer or referral to work.
In determining whether the reason for a refusal is attributable to conscientious objection, an essential factor to be considered is whether the individual genuinely believes that the action or condition to which he or she objects conflicts with his or her convictions or whether the individual merely chooses, for other personal reasons, to place a limit on acceptable employment. The degree to which the claimant’s beliefs are commonly held or considered reasonable by others is immaterial.
A conscientious objection will constitute good cause for refusing a job offer or referral provided the objection is genuine AND a conflict actually exists.
B. Religious Beliefs
The First Amendment to the United States Constitution provides:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . "
First Amendment prohibitions apply to state and federal governments only, and do not apply to private employers. Private employers are, however, governed by the federal Civil Rights Act of 1964 if they have over 15 employees. That Act prohibits covered employers, government, and labor unions, from discriminating against persons because of their religion:
"The term "religion" includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business."
There are various cases from the United States Supreme Court that are applicable in the unemployment insurance context. While some of the cases do not deal specifically with the issue of refusing work or referrals, the principles are applicable.
In Thomas v. Review Board of the Indiana Employment Security Division (1981), the U.S. Supreme Court held that denying unemployment insurance benefits to a claimant for failing to modify his religious beliefs was improper, and the claimant’s beliefs do not have to be shared by all members of the religious sect.
Mr. Thomas was hired by a foundry to fabricate sheet steel for a variety of uses. On his application for employment he claimed his religious faith but not any limitations that his faith imposed upon conditions of employment. A year after his hire, the fabrication portion of the plant closed and he was reassigned to a department that made turrets for the military. There was no nonmilitary work available as all departments were manufacturing military weapons. A fellow employee, also a member of the same religious group to which Mr. Thomas belonged, advised Mr. Thomas that working on weapons was "not unscriptural," but Mr. Thomas contended that he could not, in good conscience, do the work. Mr. Thomas quit, contending that production of arms violated his religious beliefs. In its decision, the U.S. Supreme Court held:
"The guarantee of free exercise (of religion) is not limited to beliefs shared by all members of a religious sect. . . Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists."
The Supreme Court also found in Hobbie v. Unemployment Appeals Commission of Florida (1987), that the religious belief does not have to be held at the time the claimant starts the job. Ms. Hobbie was hired as a clerk in a jewelry store. Three years later she became a member of the Seventh Day Adventist church which forbid its members from doing work of this nature from sundown Friday to sundown Saturday. Her supervisor agreed to work her Friday evening and Saturday shifts if she would work his Sunday shift. This arrangement was mutually satisfactory during April and May. However, in June the general manager of the store learned of the arrangement and told Ms. Hobbie she would have to work her scheduled shifts or quit. When she refused to do either, she was discharged. Florida argued that Ms. Hobbie was the "agent of change" and was therefore responsible for the consequences; they contended it was "unfair for an employee to adopt religious beliefs that conflict with existing employment and expect the employment to continue without compromising those beliefs." The U.S. Supreme Court disagreed with the Unemployment Appeals Commission of Florida, and held:
"The First Amendment protects the free exercise rights of employees who either adopt religious belief pre-hire, or convert from one faith to another after they are hired. The timing of the burden upon her free exercise rights is immaterial; the test is the burden involved."
In Frazee v. Illinois Department of Employment Security (1989), the U.S. Supreme Court addressed the applicability of First Amendment rights to those who had religious convictions but were not members of an established sect or church. Mr. Frazee was offered a temporary retail position that would have required him to work Sundays. He refused the job offer on the basis of a "personal professed religious belief." He was not a member of a church and his belief did not stem from any tenet, belief, or teaching of an established religious body. The state contended that religious convictions must be attached to the body of belief of a church, sect, or denomination, and denied benefits, finding that the claimant’s personal beliefs, by virtue of being personal, were therefore noncompelling. In its decision, the Supreme Court found:
"Undoubtedly, membership in an organized religious denomination, especially one with a specific tenet forbidding members to work on Sunday, would simplify the problem of identifying sincerely held religious beliefs, but we reject the notion that to claim the protection of the Free Exercise Clause, one must be responding to the commands of a particular religious organization. Under our cases, he was entitled to invoke First Amendment protection."
The Court also held:
"Nor do we underestimate the difficulty of distinguishing between religious and secular convictions and in determining whether a professed belief is sincerely held. States are clearly entitled to assure themselves that there is an ample predicate for invoking the Free Exercise Clause."
Thus, for all cases involving religious conscientious objection, the following factors should be taken into consideration:
- The claimant does not have to modify his or her beliefs for work.
- The claimant’s beliefs do not have to be shared by all members of the religious group or sect.
- The work does not have to be forbidden by the religious group or sect.
- The claimant’s beliefs do not have to be held prior to the job.
- The beliefs do not have to be based on an established religion.
And, if the claimant can establish a "sincerely held religious belief, " his or her expression of that belief is entitled to protection even from a disqualification resulting from a refusal of work or referral.
C. Ethical, Moral, or Philosophical Beliefs
Objections to working conditions may also be based on personal beliefs which might be an integral part of an individual’s code of ethics, morals, or philosophy of life without being related to religious beliefs. It will generally be difficult to determine if the individual sincerely believes that performing a particular act would be wrong since ethical, moral, or philosophical beliefs are often unique to the individual and unrelated to the doctrine of any organization that might substantiate the sincerity of the person’s belief. Perhaps because of this difficulty, there are no precedent decisions of the Appeals Board or of the California courts which have directly addressed the question as to when ethical, moral, or philosophical beliefs constitute genuine conscientious objections.
However, it is recognized that there may be situations, that are not discussed elsewhere in the BDG, where the claimant’s eligibility is contingent on establishing whether a restriction based on ethical, moral, or philosophical beliefs can be attributed to a bona fide conscientious objection. For such cases, the following factors should be considered:
- Does the claimant contend that working under the objectionable conditions would conflict with his or her basic convictions or is the claimant’s objection based primarily on other personal reasons?
- Is the claimant’s conduct consistent with his or her alleged beliefs? For example, does the claimant object to selling alcohol, but not to the production of it? (Such a lack of consistency tends to cast doubt on the genuineness of the objection.)
- Does the claimant belong to or support any organization which advocates or opposes the principles upon which his or her restriction is based? (Such an affiliation is not required, but would indicate that the claimant’s beliefs are sincerely held.)
As with religious beliefs, a claimant will have good cause for refusing work that the individual sincerely conscientiously opposes on ethical, moral, or philosophical grounds.
D. A Conflict Must Actually Exist
The claimant has the obligation of making reasonably certain that the offered employment actually conflicts with his or her convictions. If the claimant fails to exercise diligence in investigating the objectionable condition and refuses a job offer or referral on the supposition that the work will conflict with his or her conscientious objection, whereas in fact it does not, good cause will generally not be established for the refusal.