Bible Belted

On its face, the federal law safeguarding religious beliefs in the workplace is a simple one: Employers must make reasonable efforts to accommodate workers' "sincerely held religious beliefs."

Beyond that, though, there's really nothing simple about it. What's a reasonable effort? What does it mean to "accommodate"? And really, what's a "sincere religious belief," anyway? Back in the day, the Bible says, Abraham sincerely believed God was asking him to kill his son. Surely the feds wouldn't force an employer to accommodate that one.

No wonder the case of the Equal Employment Opportunity Commission v. Serrano's has proved so complicated. After all, this case -- like Abraham's -- involves a woman who believes she heard God's call.

By now, the facts have been hashed out in a courtroom and rehashed in the media, including the pages of this newspaper ("The Last Supper," July 21, 2005). Serrano's, a family-owned chain of Mexican restaurants based in Chandler, had a longstanding policy barring managers from socializing with subordinates. In 2001, a Serrano's manager named Terra Naeve admitted that she'd violated the policy by holding a Bible study with three employees under her supervision.

When she refused to stop, they fired her.

The EEOC sued on Naeve's behalf. Convinced their policy was fair, Serrano's refused to scrap it and wouldn't pony up lost wages.

This summer, the case went to trial. After three years and an estimated $250,000 in legal bills for the Serranos alone, the case finished in June with a climax worthy of John Grisham: The jury deliberated just one hour before ruling for Serrano's.

Only in novels and bad TV-movies, however, does a verdict automatically mean closure.

On August 31, in an extremely unusual action, U.S. District Judge Earl H. Carroll ruled that the jury's verdict was "against the clear weight of the evidence."

He tossed out the decision and ordered a new trial.

Lawyers on both sides of the courtroom were stunned. "In 15 years as an attorney, I've never seen anything like this," says J. Mark Ogden, who represents the Serranos.

What made Carroll's ruling so unusual is what he didn't do. He didn't issue a verdict for the EEOC. Instead, while stating that the jury's verdict was wrong, he sent the case back to trial for another jury -- who may well rule the same thing.

"It's like legal Groundhog Day," Ogden says. "We may have to wake up every few months and keep trying this case again until we lose! Under what circumstances will a verdict for the Serrano's be allowed to stand? I just don't know."

Judge Carroll was appointed to the bench by Jimmy Carter in 1980. He's now 85, but throughout the Serrano's trial, he appeared sharp as a tack. He'd occasionally voice questions on the evidence, questions that made it clear he was listening carefully.

And though he could be funny and warm when addressing the jurors, he was often harsh to the lawyers. Ogden, in particular, seemed to draw his scorn.

But in his ruling last month, Judge Carroll indicated that it was the jury who'd screwed up.

When the panel went into deliberations, Carroll gave them four questions to answer before reaching their verdict.

First, did the EEOC prove that Terra Naeve held a sincere religious belief that required her to teach the Bible to anyone who chose to attend? If the jurors said "yes," unanimously, they were supposed to move on to the second question: Did Serrano's offer an accommodation that would eliminate the conflict between her religious belief and the restaurants' code of conduct?

According to the worksheet that the jury later submitted to Judge Carroll, the jurors started by taking a quick vote on the first question. They were split.

So they moved on to Question 2.

This time, they were in agreement. Members of the Serrano family testified that they'd suggested Naeve find another person to teach the Bible study, offered to give her time to transition her employees to a different Bible class, and even suggested (tentatively) transferring her to a different restaurant.

To the jury, the Serranos made an effort, and a reasonable one at that. And since that was the case, it didn't seem to matter whether Naeve's belief was sincere. The restaurateurs were covered.

According to the worksheet, if their answer was "yes," they could proceed to the verdict. So they did; hence the ruling for Serrano's.

After Carroll dismissed the jury, the lawyers saw its answers for the first time. The EEOC lawyers, in particular, were stunned. How could the jury agree that Serrano's had accommodated Naeve's belief, they argued, when the jury hadn't decided what Naeve's belief was?

Had Carroll seen the jury's answers before letting them leave, he wrote in his August 31 ruling, he would have sent them back to deliberate. And if they couldn't agree on the first question, he would have ordered a mistrial.

By then, it was too late for that. So the judge ordered another trial -- and added his judgment that "the clear weight of the evidence" didn't match the jury's decision.

For the Serranos, it was the worst ruling imaginable. As their attorney, Ogden, explains, if Judge Carroll issued a verdict against them, at least they could appeal, which is what is likely to happen in this case after a final verdict anyway. Instead, they must now return to court and spend tens of thousands of dollars to argue their case -- in hopes of getting the same verdict they thought was in the bag in June.

Even then, Ogden notes, the judge could decide the jury is wrong. Despite Carroll's comment about the "clear weight" of the evidence, the jury in June hardly seemed conflicted. Other juries may not feel differently.

The EEOC knows that it'll be a tough case to win. For while the law tries to protect all sincere religious beliefs, juries can be skeptical.

After all, it's one thing to protect a Muslim's right to wear her headscarf. That belief is clearly delineated in the Koran and shared by millions. No matter what the law says, it's harder to argue that one lone woman has heard God's call to teach her subordinates.

Of the entire pool of prospective jurors in the June trial, only about half indicated that it was possible for someone to believe God was calling them to teach a Bible study, says Sandra Padegimas, an EEOC attorney.

"On the law, this has always been an easy case," she says, sighing. "But if we were pulling jurors from Kentucky or Texas or South Carolina, I'd be feeling a whole lot better!"

Still, Padegimas knows that publicity from the case has been a boon to the agency's efforts at education: "I'd like to think that other employers will look at this case and think, 'Do I want to pay my lawyers that amount of money? Or do I want to do something now to prevent ever going there?'"

Indeed, with so much money spent, it's ironic how easily -- and inexpensively -- the case might have settled. According to documents recently filed with the court, the EEOC made a written offer to settle for $90,000 in January.

A year prior, the Serranos had offered to settle for $5,000. This time, they didn't even respond.

Their attorney, Ogden, later told the judge that the biggest issue was the press release that the EEOC sends out when a case is closed -- an odd point, considering how much media attention the case has generated by going to trial.

But the Serranos have fought too hard to stop now. No matter what Judge Carroll does, it's clear that the family isn't likely to fold.

"This case will never settle," Ogden vows. "We will try this case forever. It doesn't matter how long it takes, how much money it takes, we will never settle this case. If it's five million dollars, we will never settle this.

"I would try this case for free before I'd let that happen."

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Sarah Fenske
Contact: Sarah Fenske