JEAN M. DEGUIRE, Complainant

SWISS COLONY, Respondent

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The decision of the administrative law judge (copy attached) is affirmed.

Dated and mailed August 17, 2001
deguije . rsd : 125 : 9 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

The complainant, who apparently does not have a social security number (SSN) due to her religious beliefs, filed a charge (1) alleging that the respondent discriminated against her on the basis of creed (i.e., religion), in violation of the Wisconsin Fair Employment Act, when it discharged her for not obtaining and providing a social security number to the respondent.

The complainant filed written objections to an initial determination of no probable cause and the Equal Rights Division issued a notice certifying the matter to hearing. Subsequently, the division issued a notice of hearing on the issue of probable cause and indicated that Allen Lawent was assigned as the ALJ. Prior to the scheduled hearing, however, the respondent filed a motion to dismiss, essentially arguing that the complaint failed to state a claim for relief under the Act.

Noting that the federal court cases cited by the respondent have rejected claims of religious discrimination where individuals did not provide a social security number to the employer, and that interpretations of Title VII by the federal courts have provided guidance in interpreting the WFEA, the ALJ concluded that a decision in favor of the respondent was required as a matter of law.

Under Title VII, in order to establish a prima facie case of religious discrimination with respect to discharge an individual must show that: (1) the individual holds a sincere/bona fide religious belief that conflicted with an employment requirement; (2) the individual informed the employer of her/his religious belief/or the conflict; and (3) the individual was discharged for not complying with the conflicting employment requirement. Seaworth v. Pearson, 203 F.3d 1056, 1057 (8th Cir. 2000), cert. denied, 121 S. Ct. 226 (2000); EEOC v. Allendale Nursing Ctr., 996 F. Supp. 712, 714 (DC W. Mich. 1998). Once a prima facie case is established, the burden shifts to the employer to demonstrate that it could not reasonably accommodate the individual's religious belief without undue hardship to its business. Seaworth, id., Allendale Nursing Ctr., id.

The ALJ determined that even assuming the complainant holds a sincere religious belief and that the respondent was aware of this, a decision in favor of the respondent was required because: (1) the respondent was required to obtain the information (SSN) from the complainant; and (2) it would cause undue hardship to the respondent to accommodate the complainant's religious belief.

The complainant argued before the ALJ, and continues to argue, that there is no requirement that she obtain a social security number. However, this argument has been considered by the courts and rejected. In Allendale Nursing Ctr., 996 F. Supp. at 717, the plaintiff made a similar claim, asserting that "(t)here is no requirement that an employee has a SSN in order to be employed for wages." Responding to this claim by plaintiff Stephanie Rhoads (and the EEOC), the court stated:

"The Plaintiff is correct that there are other TIN's (tax identification numbers) besides a SSN. However, these other TIN's, an EIN (an employer identification number) and an IRS-ITIN (an Internal Revenue Service individual taxpayer identification number), are not numbers for which Rhoads is eligible to apply (because she was not an employer engaged in a trade or business as a sole proprietor, nor an individual that was required to furnish a taxpayer identification but was not eligible to obtain a social security number).. Therefore, Rhoads' dispute is with the IRS or SSA, not with her employer. If the EEOC or Rhoads believes that the legal requirement that an individual in her situation must obtain a SSN is unconstitutional, they should challenge the constitutionality of the law in a suit against the IRS."

Likewise, the court in Seaworth, 203 F.3d at 1057 stated, "we agree with the District Court that the IRS, not defendants, imposed the requirement that Seaworth provide an SSN (citing 26 U.S.C. § 6109). 26 U.S.C. § 6109(a)(3), provides as follows:

"Any person required under the authority of this title to make a return, statement, or other document with respect to another person shall include in such return, statement, or other document, such identifying number as may be prescribed for securing proper identification of such other person."

(Emphasis added).

Citing 26 § CRF 6724(a), however, the complainant asserts that the respondent would incur no penalty or cost if she continued working for the respondent. Apparently the complainant contends that because this is a waiver provision for penalties, the respondent could have sought a waiver to accommodate her religious belief about SSN's. The complainant's assertions fail. First of all, 26 CFR § 6723 (Failure to comply with other information reporting requirements), provides as follows:

"In the case of a failure by any person to comply with a specified information reporting requirement on or before the time prescribed therefor, such person shall pay a penalty of $50 for each such failure, but the total amount imposed on such person for all such failures during any calendar year shall not exceed $100,000."

26 CFR § 6724(a), the provision cited by the complainant, states as follows:

"No penalty shall be imposed (for failure to include a SSN on an information return) if it is shown that such failure is due to reasonable cause and not to willful neglect."

The courts have rejected the complainant's accommodation argument. In Allendale Nursing Ctr., 996 F. Supp. at 718, the court stated:

"There is nothing that indicates that the waiver provision was put in place to benefit the employee who caused the penalties pursuant to section 6723 to be imposed. The Plaintiff has attempted to transform a section which allows an employer to likely avoid certain penalties if it takes certain steps into a requirement that the employer must take these steps in order to accommodate the employee who caused the penalty in the first place. The Plaintiff has not cited anything which supports such a reading of the waiver provision. This Court does not believe that such a reading is merited."

In Seaworth, 203 F.3d at 1057, the court stated:

"Even if a waiver could be obtained, we think that the expense and trouble incident to applying for it imposes a hardship that is more than de minimis, as a matter of law (citing Allendale Nursing Ctr.)."

The complainant appears to further assert that the respondent paid her, did not withhold taxes, and was not penalized. This argument was also addressed by the court in Allendale Nursing Ctr.:

"The Plaintiff claims that because the Defendant was not actually penalized by the IRS for Rhoads (sic) failure to provide a TIN, the Defendant cannot show that it could not reasonably accommodate Rhoads' belief that she is not required to obtain a SSN. This Court finds nothing that indicates that an employer is required to wait until it is actually penalized, or even investigated, by the IRS in order to demonstrate undue hardship."

Id. at 717.

Citing § 6654(e)(3)(C) of the Internal Revenue Code, the complainant apparently claims that this provision exempts her from paying income taxes and obtaining a SSN. However, as noted by the respondent, § 6654 of the Internal Revenue Code pertains to the regulation of an individual's payment of estimated income taxes and has nothing to do with an employer's obligation to withhold federal income tax. The employer's obligation to withhold federal income tax is governed by 26 U.S.C. 3402(a), which provides in relevant part that "every employer making payment of wages shall deduct and withhold upon such wages a tax in accordance with tables or computational procedures prescribed by the Secretary." (Emphasis added). Further, if the complainant believes for some reason that she does not have to pay income taxes she should file a lawsuit against the IRS.

Finally, citing 26 CFR § 1441, the complainant apparently contends that this provision (allowing payer of income to rely on an individual's written statement that he or she is a citizen or resident of the United States) somehow establishes that she does not need a SSN. This argument also fails. 26 CFR § 1441 relates to the "withholding of tax on nonresident aliens." Again, if the complainant believes that this provision somehow establishes that she does not need a SSN, she should file a lawsuit against the IRS.

cc: Rudolph F. Regez

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(1)( Back ) This charge was initially filed on January 13, 2000, and first processed by the Equal Employment Opportunity Commission. The EEOC dismissed the charge.

uploaded 2001/08/27