By Colten Maertens-Pizzo

In episode 111 of Bioethics on Air, “Fighting for Conscience and Religious Liberty at CVS,” Joe Zalot interviews Jonathon Berry to discuss Strader v. CVS, the case of a nurse practitioner who was fired by CVS for refusing to prescribe abortifacients and contraceptives. Berry is a partner at Boyden Gray and Associates and represents the plaintiff, J. Robyn Strader. As an attorney with a special interest in the labor employment space, Berry is well suited for explaining how the challenges to conscience and religious liberty in this case testify to the looming problem of what Berry calls “‘woke’ capitalism.”

In August 2021, CVS announced that it would no longer honor religious accommodations for contraceptives. Shortly after, in October 2021, J. Strader was fired from a CVS MinuteClinic in Keller, Texas, for refusing to prescribe drugs that she believed violated her beliefs as a Christian. Strader claims that CVS violated her rights under Title VII of the Civil Rights Act, which requires employers to respect the religious exercise, belief, practices, and events of believers in the workplace. Berry explains that employers typically accommodate religious observances for their employees, because they are not permitted to “apply neutral rules that go across the board” that would effectively violate Title VII protections.

Importantly, Strader’s complaint exemplifies the growing problem of a “woke” capitalism that, according to Berry, “seeks to impose these increasingly narrow priorities and worldview on anyone in [its] reach” and would lead to increasing violations of Title VII rights. Moreover, the case draws attention to the metastatic nature of “woke” capitalism and demonstrates how “woke” ideology poses an interesting legal challenge for defenders of religious liberty, since “boutique law firms staffed by conservative attorneys” generally do not bring suits against private business. Specifically, the complaint brings five causes of action against CVS.

In its first cause, the complaint claims that CVS failed to accommodate Strader’s religious views in her employment. She spent six years at CVS working with the understanding that she would not be responsible for providing abortifacients or contraceptives. On the rare occasion when someone asked for one of these prescriptions, she had a longstanding arrangement where she would refer the person to a coworker. Then in August 2021, CVS imposed a sweeping rule upon all its employees, which it justified with the “woke” idea that freedom of religion exists only within a church setting. Berry counters that the idea of religion legally includes belief and exercise, and therefore it extends beyond a church setting to include the workplace. He explains that the federal government acknowledged this understanding when it amended Title VII in 1972.

In its second and third causes, the complaint claims that Strader suffers from both disparate treatment and disparate impact by her firing. As Berry defines them, disparate treatment refers to “mistreating or at least treating an employee differently because of his or her religion,” whereas disparate impact “refers to actions taken by employers that may or may not be done because of hostility … that have an adverse effect on them.” The essential difference, according to Berry, is that a disparate treatment claim has to prove wrongful intent, whereas a disparate impact claim leaves out intent. Understanding this distinction helps us to see that the duty of religious accommodations to employees codified by Title VII is not robust enough, because it permits employers too much leeway to challenge religious belief, even without actual malice. In the fourth and fifth causes, the complaint focuses on violations specific to Texas law regarding religious discrimination and protection for medical personnel against participating in abortion. According to Berry, “We’ve alleged that Ms. Strader was being made to participate in provision of drugs that she believes in her judgment are potential abortifacients.” At the heart of these claims, then, is the future of rights of conscience in the United States, because companies are increasingly pressing upon rights of religious freedom in the name of (arguably factitious) civil rights.

Despite these problems, Berry sees cause for optimism. First, the fact that the Supreme Court has decided to revisit the duty of religious accommodation in Groff v. DeJoy offers a glimmer of hope. Second, he explains that “there are increasing amounts of resources available to providers who are being put to crisis of conscience.” The Ethics and Public Policy Center’s HHS Accountability Project, for example, offers much needed resources to file federal conscience complaints, submit public comments on rulemaking, and set up meetings with rule makers, which will prove valuable for dealing with the expected spread of woke capitalism.

Colten Maertens-Pizzo works for the Archdiocese of Chicago Catholic School System.