SALWA M RASHAD, Employee
MADISON AREA TECHNICAL COLLEGE DIST, Employer
An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter on April 22, 2003, concluding that the employee had not failed to accept an offer of suitable work, within the meaning of Wis. Stat. § 108.04(8)(a). A timely petition for review was filed.
On March 11, 2004, the commission issued a decision which reversed the decision of the ALJ and concluded that the employee had failed to accept an offer of suitable work and that her failure was without good cause, within the meaning of Wis. Stat. § 108.04(8)(a). The employee commenced a proceeding for judicial review of the commission's decision.
On October 8, 2004, the circuit court issued a decision affirming the commission. The employee appealed to the court of appeals.
On May 26, 2005, the court of appeals issued a decision reversing and remanding the matter to the commission for it to make further factual findings and conclusions related to application of the good cause standard in Wis. Stat. § 108.04(8), and to address the constitutional issues that might be raised by the commission's application of that standard.
The court of appeals left it to the commission to determine whether to have further hearing before re-deciding the matter. On August 4, 2005, the commission remanded the matter to the department for further hearing before an administrative law judge, acting on behalf of the commission, with respect to the issues described in the court of appeals' decision.
Further hearing was held before an ALJ for the Division of Unemployment Insurance on September 1, 2005, and the matter is now before the commission for its decision as required by the mandate of the court of appeals.
Based on its review of the evidence presented at the original hearing as well as the further hearing held on September 1, 2005, and having considered the positions of the parties and the decision of the court of appeals, the commission now makes the following:
The employee worked for one semester as a part-time instructor (eight hours a week) for the employer, a technical college. The employee's last day of work was on or about December 16, 2002 (week 51), when the semester ended.
In a memorandum dated November 26, 2002, the employer offered the employee a part-time instructor position (four hours a week) to start January 13, 2003 (week 3). The employer gave the employee ten days to accept its offer.
The employee is a follower of Islam. The most important elements of that faith, known as the Five Pillars of Islam, are that the believers acknowledge the sole divinity of Allah and the role of his messengers of whom the last was Mohammed, that they pray to Allah five times a day, that they pay charity, that they fast during the month of Ramadan, and that they make a pilgrimage (the Hajj) at least once during their life and as soon as they are able to do so. Making the Hajj requires the believer to travel to and pray at certain sacred sites in and around Mecca, in Saudi Arabia. The Hajj must be made at a particular time during the year; in 2003 the period during which the Hajj had to be made occurred beginning in late January. The employee, who is 57 years old, had not yet made the Hajj as of that time.
On December 4, 2002, several days before the deadline for responding to the offer of employment that had been extended, the employee notified the employer's part-time faculty coordinator of the possibility that she would be traveling on a religious pilgrimage for three to five weeks during the spring 2003 semester. The employee offered to provide a substitute during her absence. Later that day, the employer's coordinator informed the employee that the employer had offered the position to another individual who had accepted the teaching assignment.
The issue for review is whether the employee failed to accept an offer of suitable work and, if so, whether she had good cause for failing to accept that offer, within the meaning of Wis. Stat. § 108.04(8)(a).
The administrative law judge found that the employer withdrew its offer by offering the teaching assignment to another individual; consequently, he found that the employee did not fail to accept an offer of suitable work within the meaning of Wis. Stat. § 108.04(8)(a). The commission reverses this finding and conclusion as a matter of law.
A bona fide offer of work must be of such definite character that nothing more than a simple acceptance is necessary to form a contract of hire. The commission is satisfied that the employer met this burden by presenting the employee with an offer conveyed by a letter that specified the time, date, amount of pay and length of contract of hire, which the employee could either decline or accept. Here, the employee rejected the employer's offer when she offered to work except for the time needed to travel on her religious pilgrimage. The commission notes that this rejection and counteroffer by the employee occurred prior to the employer acting on such information and ultimately offering the teaching assignment to another instructor. Consequently, the commission finds that the employee failed to accept an offer of suitable work.
While the commission has considered the possibility that the employee was motivated to reject the job offer by dissatisfaction with the reduced number of hours offered her, and a desire to make a purely personal visit to her son in Egypt in conjunction with her trip to Mecca, it now finds that these were not in fact significant factors in her decision. The employee testified at the further hearing held in this matter, that she had no intent to end her employment because of the fact that her assignment had been reduced from 2 classes to one, and that it had been her intention, if allowed the weeks off to make the Hajj, to return and finish the semester. The employee also testified that she had intended to be absent only for the time required by the Hajj, and that she extended her trip to see her son in Egypt only after the assignment was given to another employee, meaning that she had no employment to return to. The commission credits this testimony. The employee's reason for effectively refusing the offered job (by proposing an extended period of absence from it) was her desire to make the Hajj.
The remaining inquiry is whether the employee had good cause for her failure to accept the work offered to her, within the meaning of Wis. Stat. § 108.04(8)(a).
The term good cause is not defined in the statutes nor does the Unemployment Insurance Act specify the criteria to be considered in determining what is and what is not good cause. Rather, good cause must be determined in light of the facts and circumstances in each particular case as they apply to the basic tenets of reason and good faith. Thus, when determining whether an employee has established good cause within the meaning of Wis. Stat. § 108.04(8)(a), the commission applies the reasonable person standard to determine whether the employee established good cause for failing to accept suitable work. Moore v. Scaife Daycare LLC, UI Hearing No. 01601625MW (LIRC July 13, 2001).
In Schmelling v. Kelly Services, Inc. (LIRC, February 4, 1998), the commission found good cause for a job refusal under § 108.04(8)(a) where the offered job conflicted with claimant's pre-existing appointment related to medical assistance recertification for her daughter. In Meirick v. Manpower (LIRC, July 9, 1998), the commission found good cause for a job refusal under § 108.04(8)(a) where the offered job conflicted with personal commitments by the claimant to assist his son-in-law in remodeling work on his house and to attend his grandson's first communion, the claimant already had other part-time work, and had told the offering employer that he did not want weekend work. In Teutsch v. Kenosha Public School (LIRC, July 26, 1990), the commission found good cause for a job refusal under § 108.04(8)(a) where the offered job conflicted with a previously schedule employment examination with another prospective employer.
The employee's conviction that her faith required her to make the Hajj, is at least as serious and compelling as the circumstances found in cases such as these. As noted, the obligation to make the Hajj is one of the Five Pillars of Islam. Its significance to followers of that faith must be understood to be as great as the significance attributed by believers in other faiths to the once-in-a-lifetime observances which are part of their religions. The requirement that it be done at a particular time -- in the employee's case, in January, 2003 -- is an integral part of its significance. Applying a "reasonable person" standard to the question, the commission believes that a reasonable person would understandably turn down an offer of employment when this was necessitated by something of such importance as the honoring of this kind of once-in-a lifetime religious observance. It is therefore appropriate to conclude, and the commission does conclude, that the employee had good cause, within the meaning of Wis. Stat. § 108.04(8)(a), to refuse the job offer in this case.
The commission finds this conclusion appropriate for another reason as well. It is a well-accepted principle of statutory interpretation, that a construction of a statute which gives rise to serious doubt as to its constitutionality should be avoided where a different construction, which will avoid such doubt, is permissible under the terms of the statute. Swanke v. Oneida County, 265 Wis. 92, 99, 60 N.W.2d 756, 62 N.W.2d 7 (1953). The commission believes that construing the "good cause" standard of Wis. Stat. § 108.04(8)(a) in such a way as to lead to the conclusion that good cause did not exist here, would raise serious questions about the constitutionality of that standard.
In Sherbert v. Verner, 374 U.S. 398, 10 L.Ed.2d 965, 83 S.Ct. 1790 (1963), a state unemployment insurance agency had denied benefits to a claimant based on a statute analogous to Wis. Stat. § 108.04 (8)(a), denying eligibility for failure to accept work without good cause. Sherbert, a Seventh-day Adventist, was unwilling to accept offers of work requiring her to work on Saturday, her faith's Sabbath Day. The U.S. Supreme Court held that the benefit disqualification impermissibly burdened the free exercise of Sherbert's religion. The principle articulated in Sherbert was reaffirmed in Thomas v. Review Board, 450 U.S. 707, 67 L. Ed. 2d 624, 101 S. Ct. 1425 (1981); Hobbie v. Unemployment Appeals Commission of Florida, 480 U.S. 136, 107 S. Ct. 1046, 94 L. Ed. 2d 190 (1987); and Frazee v. Illinois Department of Employment Security, 489 U.S. 829, 109 S.Ct. 1514, 103 L.Ed.2d 914 (1989). (1) The commission has recognized these decisions as standing for the general rule that states may not deny unemployment compensation to individuals who lose their employment due to sincere beliefs rooted in religion as such denial would violate the Free Exercise Clause of the First Amendment. See, Miller v. Stella Foods, Inc. (LIRC, May 24, 1996). Were the commission to interpret the "good cause" standard in such a way as to conclude that Rashad had no good cause for her decision which effectively turned down this job -- a decision which was plainly driven by her sincerely and deeply held religious convictions as to the necessity of making her pilgrimage at that time -- it would run contrary to that rule.
In its original decision in this matter, the commission stated that it was unwilling to conclude that the time conflict caused by the employee's religious pilgrimage during the spring 2003 semester provided the employee with good cause. It justified this by stating that while the employee testified that she was obligated to complete the pilgrimage at least once in her life if she was physically able, there was no requirement that it be made in 2003. As the court of appeals noted, Rashad had in fact testified that it was a tenet of her faith that the pilgrimage had to be made at the first opportunity and that this was the first time that she was financially and otherwise able to make that pilgrimage. The evidence presented at the further hearing in this matter now makes that point all the more clear. The employee testified clearly -- and, the commission does not doubt, sincerely -- that it was her faith and belief that she was required to make the Hajj at the first point in her life when she was able to, that this was the first point in her life when she was able to, that she could not postpone her Hajj until a subsequent year because she would have no assurance that at that time she would still be able to go, and that she had to make the Hajj at that particular time (January into February) because that was when the Hajj was being observed that year.
The employer examined the employee at length about the circumstances of her life and why she had not made the Hajj until she did. The employee is 57 years old. During the first 33 year of her life, she lived in Egypt. She did not make the Hajj during those years because she was poor and lacked the financial ability to do so, and because of her responsibility for raising and caring for her children. She also considered that she was not spiritually ready to do so at that time. At that point in her life, the employee moved to the United States, following her husband, who had moved here first. She continued raising and caring for her children, and also attended school and then worked in a number of capacities. Since she moved to the United States, she made regular visits to Egypt to see her mother. She had no physical disabilities which would have affected her ability to make the Hajj.
The commission has carefully considered the evidence elicited by the employer from the employee, bearing on the question of why she had not made the Hajj prior to 2003. The employer's effort seems to have been directed to establishing, that the employee could have made the Hajj before she did. However, under the well-established constitutional law in this area, tribunals are not to inquire into the truth, validity, or reasonableness of religious beliefs. See, e.g., United States v. Ballard, 322 U.S. 78, 87, S.Ct. 882, 886, 88 L.Ed. 1148 (1944). Thus, whatever the evidence on the question, the commission could not take it as proof that it is not really an element of the Islamic faith that its adherents make the Hajj as soon as they are able. Instead, the evidence could serve only to establish that this particular employee was not true to her faith, and did not in fact sincerely feel a religious conviction that she had to make the Hajj when she did.
Whether it was the purpose of the employer to take this tack, the commission cannot say, but it can say that it was not persuaded that there was anything insincere about the employee's testimony as to what her religious beliefs were and what she understood her faith required her to do at the time of the events of this case. The employee's explanation about how she came to have not made the Hajj before 2003, and why she came to believe she was required to make it that year, are credible. The commission specifically credits the employee's testimony, that "[p]rior to January 2003, I was never physically, financially and spiritually ready and able to take the religious pilgrimage to the Hajj".
More important, the question of whether the employee had been fully committed to her faith during her younger years when she did not make the Hajj, does not answer the question of whether she was acting on the basis of sincere religious beliefs when she made the decision at issue here. When or how late in a life a religious conviction arises or matures, does not justify doubting its sincerity. Whether the employee could or should have made the Hajj in her younger years, she had in fact not done so; the commission accepts that in 2003, she had come to sincerely believe that she should.
Because the employee's refusal of the job here was driven by her sincere desire to observe what she believed to be a requirement of her religious faith, a construction of Wis. Stat. § 108.04(8)(a) which found that she did not have "good cause" for that refusal would raise a problem of constitutional proportions under
Sherbert v. Verner and its progeny. This leads the commission to favor an interpretation of that standard which would find good cause under the facts and circumstances in this particular case.
The commission therefore finds that in week 3 of 2003, the employee failed to accept an offer of suitable work, but that her failure to do so was with good cause, within the meaning of Wis. Stat. § 108.04(8)(a).
The decision of the administrative law judge is modified to conform with the foregoing and, as modified, is affirmed. Accordingly, the employee is eligible for benefits, if she is otherwise qualified. She is not required to repay the sum of $3,750.00 to the Unemployment Reserve Fund.
Dated and mailed September 19, 2005
rashasa . urr : 110 : SW 800 SW 850
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
NOTE: As is indicated, the employee is determined herein to be eligible for benefits "if she is otherwise qualified". It is not disputed that as a result of her trip, the employee was physically outside of the United States for a number of weeks. The question of her availability for work during these weeks is a separate qualification question which will need to be separately determined by the department.
cc:
Attorney Michelle A. Peters
Attorney Josh Johanningmeier
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