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Hurston v. Henderson, 2001 WL 65204|
A Case Analysis By Dana D. Eilers, J.D.
CASE ANALYSIS: Hurston v. Henderson, 2001 WL 65204|
This is an Equal Employment Opportunity Commission case filed by a U.S.
postal worker against the Postmaster General of the United States Postal
Service Agency (Midwest Area). It was issued January 19, 2001. the case
was brought under Title VII of the Civil Rights Acts of 1964, as amended,
42 U.S.C. sec. 2000e, et seq., and Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. sec. 791, et seq. Mr. Hurston essentially
alleged that he was harrassed at work due to his religion, Wicca, and
because of his physical handicap, which was a hearing loss.
This case was handled entirely within the confines of the Equal Employment
Opportunity Commission, and it is not a federal court case. This means
that Mr. Hurston appropriately and timely utilized his administrative
remedies before resorting to the filing a federal court case.
Mr. Hurston was a Wiccan who complained that he was harrassed by his
co-workers, and this allegation was substantiated by the evidence. The
hearing transcript indicated that one worker characterized Mr. Hurston's
religions as "'going out East to frolic with the nymphs.'" Various
supervisors warned Mr. Hurston about wearing religious tee shirts in the
workplace, while JudeoChristian employees were permitted to express
JudeoChristian themes on their clothing. A supervisor told Mr. Hurston
that one co-worker had characterized him as 'evil." Mr. Hurston was told
that he could not wear a pentagram to work while JudeoChristian workers
were allowed to wear crucifixes and Stars of David. Mr. Hurston was warned
about displaying a caudron while other workers were not warned about the
display of their religious messages and symbols. JudeoChristian workers
were told that they were offending others, but Mr. Hurston was told that he
offended others. These complaints were adquately supported by the record
on appeal, being the transcript of the underlying hearing where this
evidence was adduced.
Although the Administrative Law Judge at the hearing found in favor of Mr.
Henderson, the matter was taken to a Final Agency Decision (FAD) which
concluded that Mr. Hurston was not threatened or harrassed in violation of
the anti-discrimination laws. On appeal, the decision of the FAD was
reversed, and finding was again made in favor of Mr. Hurston.
Applying Title VII, which prohibits employment discrimination on the basis
of religion, it was found that Mr. Hurston had, indeed been discriminated
against in the workplace. Furthermore, reference was made to The
Guidelines on Religious Exercise and Religious Expression in the Federal
Workplace (2 Emp. Prac. Guide [CCH] 3903-10 [August 14, 1997]. It was stated: "As a general rule,
agencies may not suppress employees' private religious speech in the
workplace while leaving unregulated other private employee speech that has
a comparable effect on the efficiency of the workplace becasue to do wo
would be to engage in presumptively unlawful content or viewpoint
Ultimately, the EEOC determined that Mr. Hurston "was harrassed by
co-workers based on his religion and disability . . . In reaching this
conclusion, the Commission finds that the agency permitted complainant's
co-workers to subject him to a barrage of humiliating comments and that
management unreasonably restricted complainant's personal religious
expression. We further find that the treatment created an humiliating,
intimidating, hostile and offensive work environment."
The case was remanded to the Administrative Judge for a hearing as to
This case is important for several reasons. First, Mr. Hurston was an
openly practicing Wiccan within the employment of the United States
government. He was a postal worker. He experienced discriminatory
harrassment based on his religion from co-workers, and he reported it to
his supervisors who did nothing about it. Indeed, based on the record,
they, also, committed discriminatory harrassment.
Second, Mr. Hurston utilized the administrative remedies afforded by law in
a timely manner. Third, there is absolutely no discussion in this case
about the validity or propriety of Wicca as a religion. This means that
the EEOC treated Wicca as a religion. The case stands for the proposition
that a Wiccan is on equal footing with Jews and Christians in the federal
This case is a landmark for Wiccans, and ultimately for Pagans in general. It should be brought to the attention of attorneys representing Wiccans
and Pagans in legal matters. It should be utilized in legal briefs,
memoranda, and court documents involving Wiccans and Pagans.
Dana D. Eilers
Bio: Dana is a practicing Witch and for seventeen years, was a civil attorney
with trial firms and worked in the states of Missouri and Illinois. She is
a Smith College graduate and a 1981 cum laude graduate of The New England
School of Law. She is currently semi-retired from the active practice of
law, but she serves as a member of the AREN Legal Resource team, has an
active interest in Pagan civil rights, and has published articles both in
print and on the internet.
Paganism and The Law
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