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We at the Witches' Voice are continually compiling a important reference documents, form letters that you can use in your local fight for YOUR freedom... Note: The Witches' Voice Inc. does not offer legal advice nor are we qualified to do so. This document does not constitute legal advice but is intended to be used in conjunction with the legal services of an attorney licensed to practice in your state. This document can be copied and distributed to your lawyer should you decide that you need the services of one.

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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 discrimination."

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 damages.

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 work place.

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.

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