memorandum of law in support of motion for summary judgment

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Case: 5:09-cv-00244-KSF-REW Doc #: 41-1 Filed: 09/29/10 Page: 24 of 27 - Page ID#: 1647 In the end, the committee simply preferred Knauer. The personal interviews swung the race in his favor, and this happened before the committee even considered the UK biologists’ thoughts on Gaskell’s science. McDonnell Douglas requires the Court to dismiss Gaskell’s claims. II. UK IS NOT REQUIRED TO HIRE GASKELL MERELY BECAUSE HIS FLAWED SCIENTIFIC VIEWS ARE GROUNDED IN HIS RELIGIOUS BELIEFS. Title VII has built in to it a safe harbor for employers. In defining the term “religion,” the Act provides an out for employers that are unable to reasonably accommodate a prospective employee’s religious practices or beliefs without suffering undue hardship on the conduct of the employer’s business. 42 U.S.C. § 2000e(j). In other words, there are certain requirements so fundamental to a particular job that even if a person’s religion undermines those requirements, an employer may consider those religious views. In practice, courts have determined that once an employee meets his or her burden of proving a prima facie case of religious discrimination in employment by showing that the employee (1) holds a sincere religious belief that conflicts with an employment requirement, (2) has informed his employer of the conflict, and (3) was discharged or disciplined for failing to comply with the requirement. Smith v. Pyro Mining Co., 827 F.2d 1081, 1085 (6th Cir. 1987). The burden then shifts to the employer to show that it could not reasonably accommodate the employee without undue hardship. Cooper v Oak Rubber Co., 15 F3d 1375, 1378 (6th Cir. 1994). The reasonableness of an accommodation is decided on a case-by-case basis. If the employer's efforts fail to eliminate the religious conflict, then the employer has to establish that it is unable to reasonably accommodate the employee's practices without incurring undue hardship. Id. 24
Case: 5:09-cv-00244-KSF-REW Doc #: 41-1 Filed: 09/29/10 Page: 25 of 27 - Page ID#: 1648 First and foremost, UK was hiring a scientist to fill the role of its observatory director. It stands to reason that core knowledge of sound scientific theory is intrinsic to that role. If the candidate for a scientist’s position held views that are not scientifically valid, even if those erroneous views are grounded in that person’s religious beliefs, then the employer can disqualify such a candidate. As one of the biologists, Shelly Steiner, pointed out, the biology department would not have hired a biologist who believed that the Sun revolved around the Earth. 44 further example, if someone’s religious beliefs prevented him from driving a car, it seems reasonable for a taxi cab company to reject such a candidate’s application to drive a taxi cab. As noted, for many years, Gaskell has been giving a lecture on Modern Astronomy, the Bible, and Creation. In fact, he gave such a talk at UK in 1997. In addition, Gaskell published notes from that lecture on the internet. The majority of the advisory committee perceived basic flaws in Gaskell’s thinking and presentation on biologic evolution and intelligent design. Gaskell’s public statements led some of the advisory committee members to conclude that Gaskell rejected a well-established and scientifically-valid principle of evolution. (Cavagnero, p. 118). Professor Osborn who is a biologist, and therefore should be considered as someone with the expertise to evaluate Gaskell’s comments on evolution and intelligent design, was concerned with the manner in which Gaskell blended science and religion in his lecture notes. He thought that such an attitude would be counterproductive to the University’s outreach efforts. He found significant scientific errors in the lecture notes, taking issue with Gaskell’s statement that there were significant scientific problems with evolutionary theory and Gaskell’s suggestion that intelligent design was not a religious theory but instead was supported by empirical evidence. Osborn testified that bio-scientists have failed to find empirical evidence supporting the intelligent design theory. Overall, Osborn was concerned with how the community, and 44 Exhibit 35, Cavagnero e-mail dated 10/17/07 25 As a
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memorandum of law in support of motion for summary judgment

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