When it comes to religious discrimination, employers face claims in part because compliance obligations are unintuitive to managers, an employment attorney said.
In contrast to other antidiscrimination laws requiring equal treatment, the religious bias protections under Title VII of the 1964 Civil Rights Act require employers to take the extra step of accommodating workers’ sincerely held beliefs.
As stated by Justice Scalia in EEOC v. Abercrombie & Fitch Stores Inc., “Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment.”
This can be a tricky proposition, according to R. Scott Oswald, managing principal at The Employment Law Group, P.C. During a recent Bloomberg Law webinar, Oswald and Kara M. Ariail, partner at Holland & Knight LLP, examined the question of what employees can and can’t refuse to do on religious grounds.
What Is Religion?
According to Ariail, religion doesn’t just include traditional, organized religions and religious beliefs, but also those that are new, uncommon, not part of a formal sect, or seem illogical or unreasonable to others.
She cited an example from a recent Fourth Circuit case, EEOC v. Consol Energy Inc., dealing with an employee’s belief that if he used a new biometric hand scanner that was implemented to track employees, it would be “a showing of allegiance to the Antichrist” and would brand him with the “Mark of the Beast.”
The court said it's neither the employer's nor the court's job “to question the correctness or even the plausibility of [an employee's] religious understandings.” Even if a belief appears new, inconsistent with mainstream religion, or illogical, the key question is whether the belief is sincerely held and can be accommodated without undue hardship.
The employee in the case retired under protest when he was forced to choose between his religious commitments and his continued employment. The Equal Employment Opportunity Commission sued on his behalf, and according to Ariail, the agency won $587,000 for him.
As an added twist, Title VII also protects atheism as the absence of belief, which can give rise to bias claims if employers favor religious employees or have meetings and events where atheists are excluded. Ariail said such a situation would be reminiscent of excluding women from golf outings where male employees conduct business and make deals.
Employers should make sure managers understand that favoritism must not color opportunities presented to employees, she said.
How to Accommodate
Ariail discussed a pair of common accommodations that demonstrate the necessity for case-by-case analysis when deciding how or whether to make allowances for employees’ religious beliefs.
One common accommodation is changing an employee’s job tasks. Take the example of a trucking company with a driver who requests to make no deliveries of alcohol because of his religion’s strict prohibition of alcohol. The company can easily accommodate the driver if it ships a variety of items, but if it only delivers alcohol, then the accommodation isn’t reasonable and can be rejected.
Another common accommodation is excusing an employee from attending employer-sponsored programs that conflict with religious beliefs or practices, but Ariail said this wouldn’t apply to job-related or legal trainings. For example, an employer has no obligation to accommodate an employee who asks to skip an anti-harassment training that includes discussion of sexual orientation and gender identity harassment.
Religion vs. LGBT Equality
The intersection of religion and LGBT equality represents a flashpoint of competing civil rights, according to Oswald. In December, the U.S. Supreme Court will hear arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case addressing whether a bakery owner could lawfully refuse, on religious grounds, to create a wedding cake for the celebration of a same-sex marriage. The outcome will send ripples across other contexts, including the employment arena.
Oswald said if the bakery owner wins, it will embolden employees who believe their religious views should trump their employers’ job requirements. For instance, employees at other bakeries might assert that their religious views must be accommodated, allowing them to refuse to make cakes for same-sex weddings.
Oswald also mentioned Kim Davis, the Kentucky clerk who refused to issue same-sex marriage licenses based on her religious beliefs. If the bakery owner wins the Masterpiece Cakeshop case, Davis and others like her might have a strong argument for accommodations allowing them to avoid issuing same-sex marriage licenses.
Companies With Religious Owners
Another open question is the extent to which employers can claim protection under federal law for actions rooted in religious beliefs. Oswald and Ariail said the Trump administration has taken a stance favoring religious expression, and they expect some employers to be emboldened, testing the limits of what they can and can’t do in the workplace.
In 2014, the Supreme Court decided in Burwell v. Hobby Lobby Stores Inc. that some relief from government regulation—in this instance, the Obamacare requirement to provide contraceptive coverage—could be claimed by a closely held corporation if the regulation burdens its religious beliefs. The Trump administration has been pushing the limits of the case, Oswald and Ariail said.
They pointed to an Oct. 6 memo from Attorney General Jeff Sessions stating that the Religious Freedom Restoration Act “protects the exercise of religion by individuals and by corporations, companies, associations, firms, partnerships, societies, and joint stock companies.”
The position staked out by Sessions raises the following question: Does the memo override the Title VII requirement for a closely held organization to be “primarily religious” before its managers may impose religiously motivated rules on employees?
Oswald and Ariail expressed the opinion that the Title VII requirement remains in place. Until the Supreme Court rules otherwise, an organization can only impose religious rules if it is considered “primarily religious,” utilizing the multifactor test from EEOC v. Townley Eng'g & Mfg. Co.
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