Interplay of LGBT and Religious Rights in the Workplace

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September 28, 2018
Author: Douglas W. Desmarais
Organization: Smith & Downey, P.A.

A. Statutory Basis: Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of religion, as does the Maryland Fair Employment Practices Act.

B. Religion Defined: Title VII defines “religion” as including “all aspects of religious observance and practice as well as belief…” The Equal Employment Opportunity Commission (“EEOC”) emphasizes the broad definition of religion under Title VII:
1. Belief is religious if it is “’religious’ in the person’s own scheme of things”
2. Belief or practice is religious even if it is not affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few, or no other people adhere to it
3. Beliefs may be theistic or nontheistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with strength of traditional religious views”

Courts have expressed a reluctance to second-guess an employee’s claim that her/his beliefs are founded on religious principles. Moreover, courts do not limit Title VII protections to mainline religions. In a non-Title VII case (the case involved conscientious objectors), the Supreme Court ruled that a person’s religious beliefs “need not be confined in either source or content to traditional or parochial concepts of religion.” Moreover, the Supreme Court has ruled that “the resolution of [the question of what constitutes a religious belief] is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection…[I]t is not within the judicial function and judicial competence to inquire whether [someone]…correctly [perceives] the commands of [his/her] faith. Courts are not arbiters of scriptural interpretation.”

C. Challenging the Sincerity of an employee’s religious belief: In almost instances, both the EEOC and courts will accept as genuine an employee’s assertion of a sincerely-held religious belief. In rare instances, an employer can show a lack of sincerity by showing a pattern of behavior on the part of an employee that is contrary to the belief being asserted. For example, an employee who indicated that it was against his personal religious beliefs to work on Sundays, yet who routinely worked on Sundays when it suited his needs, was unsuccessful in asserting a Title VII claim against his employer.

D. Rise in Religious Discrimination Cases: Over the last 20 years the number of religious discrimination claims has increased dramatically. In 1992, there were less than 1,400 claims of religious discrimination cases filed with the EEOC. In 2012, there were close to 4,000 claims filed. In addition, the average amount of monetary awards levied against employers for religious discrimination claims increased almost seven-fold from 1992 to 2002.

II. Religious-Based Workplace Harassment
A. Overview: Title VII protects individuals from discrimination in every aspect of the employment relationship, including interviews, hiring, promotions, compensation, terminations, etc. Accordingly, employers may not harass an employee on the basis of her/his religion (or lack thereof) at any stage of the relationship.

B. The Two Most Common Religious Based Harassment cases. Generally, these types of cases focus on the motivation of the discriminating official, not the actual beliefs of the individual alleging discrimination. Courts tend to distinguish between two types of religious-based disparate treatment: harassment and proselytizing. Harassment cases involve the mistreatment/ridicule of an employee because of his/her religious views. The harassing party can be someone who has no deeply-held religious beliefs or whose religious beliefs differ from the harassed coworker.

Proselytizing cases involve the attempts by a supervisor or co-worker to persuade an employee to embrace his/her religious viewpoint. The target of religious proselytizing can be someone who has no religious beliefs and/or affiliation, or someone whose religious beliefs and/or affiliation differ from the proselytizing coworker. Again, these types of cases focus on the motivation of the discriminating official, not the actual beliefs of the individual alleging discrimination.

C. Harassment Standard: Courts follow the general standard set by the Supreme Court in Meritor Savings Bank v. Vinson to evaluate religious harassment cases. Most courts have held that an employee states a prima facie case for religious harassment if s/he can show the following:
1. Plaintiff belongs to a protected class;
2. Plaintiff was subjected to harassment;
3. The harassment was based on religion;
4. The harassment was sufficiently severe and pervasive to affect a term and condition of the plaintiff’s employment; and
5. The employer knew or should have known about the harassment but failed to take prompt remedial action.

Other courts have applied different variations on the above theme. In the case of Gibson v. Finish Line Inc. of Del., the Western District of Kentucky found that a claim of religious harassment must meet the following tests:
1. The plaintiff must be a member of a protected class (i.e., the employer must adhere to a religious belief system or engage/seek to engage in religious practices);
2. The plaintiff must be qualified to continue his/her job;
3. The Plaintiff must suffer some sort of adverse action by the employer;
4. The Plaintiff must be treated differently than similarly situated non-protected employees for the same or similar conduct.

Under both tests the harassment at issue must be both severe and pervasive. Stray comments alone are not enough to sustain a religious harassment claim. Although they certainly can be used as evidence in the event there is other adverse action taken against the employee. In every instance, the Plaintiff must be able to prove that the employer actually knew of his/her religious persuasion.

D. Quid Pro Quo/Hostile Work Environment.
In addition, religious harassment can take the form of both quid pro quo and hostile work environment claims. The EEOC’s guidelines on national origin harassment are illustrative of the standards of hostile work environment claims:

Discrimination relating to an individual’s national origin [or religion] constitute harassment when this conduct:
1. Has the purpose or effect of creating an intimidating, hostile or offensive work environment;
2. Has the purpose or effect of unreasonably interfering with an individual’s work performance; or
3. Otherwise adversely affects an individual’s employment opportunities.
4. The general guidelines and analysis for sexual harassment claims apply to religious harassment claims.

E. Proselytizing Cases:
The Tenth Circuit Court of Appeals applied a different standard when an employee is terminated because of a religious difference. In Shapolia v. Los Alamos National Lab, the Tenth Circuit found that in actions in which the plaintiff claims discrimination because s/he does not share a supervisor’s religious beliefs, the plaintiff must show:
1. Adverse Employment Action: S/he was subjected to some adverse employment action.
2. Satisfactory Performance: The employee’s job performance was satisfactory at the time the employment action was taken;
3. Additional Evidence: Some additional evidence exists to support the inference that the employment actions were taken because of a discriminatory motive based on the employee’s failure to hold or follow the employer’s (supervisor’s) religious beliefs.

According to the Seventh Circuit, an employee who suffers an adverse employment action for not being of the same faith as an employer/supervisor “need not put a label on her/his own religious beliefs . . . or demonstrate that s/he communicated her religious status and needs, as she would if she were complaining that the employer had failed to accommodate a particular religious practice. The employee needs only show that her/his perceived religious shortcomings played a motivating role in an adverse employment action.”

In addition to the types of tangible employment loss cases outline above, an employer can also be liable under Title VII when it tolerates evangelization and/or preaching that creates a hostile work environment for those employees who do not wish to engage in religious discourse in the workplace and/or do not wish to be converted to another employee’s faith. However, where occasional proselytizing or religious discussions occur in the workplace and there is no discernable adverse impact that results from these activities (i.e., no indication of a hostile work environment), court will generally allow such speech to proceed.

III. Religious-Based Accommodations
A. Overview: A distinct aspect of Title VII’s prohibition against discrimination on the basis of religion is the duty of employer’s to reasonably accommodate an employee’s religious beliefs and practices. Specifically, Title VII provides that “religion”. This includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.

B. Reasonable Accommodation & Undue Hardship: The concepts of “reasonable accommodation” and “undue hardship” are relatively unique to EEO law, and are shared only by the Americans with Disabilities Act’s comparable language with respect to disabilities in the workplace.

1. Undue Hardship: Note, however, that the legal definitions and requirements under “undue hardship” under Title VII compared to that under the ADA are very different.
2. Prima Facie Case for Failure to Provide Religious Accommodation: Courts have developed a three-prong test for evaluating accommodation cases:
a. The Plaintiff must show that s/he has a sincere religious belief that conflicts with an employment requirement;
b. The Plaintiff must prove that the employer had actual notice of both the religious belief and the conflict; and
c. The Plaintiff must prove that s/he was disciplined or would have been disciplined for the adherence to her/his religious beliefs.
d. In addition, an employee must show that s/he attempted to cooperate and work with the employer to reach an accommodation (a requirement applicable to employers as well).
3. Proposal of Reasonable Accommodation: Employer’s must propose a reasonable accommodation unless it can prove that all reasonable accommodations would entail an undue hardship. However, an employer is not required to provide the precise accommodation requested by the employee if other accommodations deemed more desirable to the employer eliminate the religious/workplace conflict at issue.
4. EEOC: The EEOC states in recent guidelines that while an employer is not required to hold a discussion prior to denying an employee’s request for reasonable accommodation, it may be a good idea as it could potentially help to illustrate a good faith attempt to resolve the conflict.

C. Undue Hardship: An employer can defend against a prima facie case of religious accommodation by offering proof that it was unable to provide an accommodation for the Plaintiff because such an accommodation would have inflicted an undue hardship upon the employer. An “undue hardship” is any cost to an employer that is more than de minimis. The EEOC has stated:
1. Costs associated with rearranging schedules and recording substitutions for payroll purposes or infrequent or temporary payment of premium wages (e.g. overtime rates) while a more permanent accommodation is sought will not constitute more than de minimis cost.
2. Whereas the regular payment of premium wages or the hiring of additional employees to provide an accommodation will generally cause an undue hardship to the employer.

D. Examples of Religious Accommodation: Workplace accommodations can take many forms. Some more common examples include:
1. Voluntary Substitutions: Voluntary substitutions or “swaps” of work assignments between employees;
2. Flexible Scheduling: Flexible scheduling of work hours, holidays, breaks, and holiday leave;
3. Lateral Transfers: Lateral transfers of employees with religious conflicts to different assignments and locations; and
4. Standards: Relaxation of grooming and dress standards.

E. Essential Job Functions: The ADA concept of “essential job functions” casts revealing light on the issue of undue hardship in that if the requested accommodation involves a non-essential aspect of the employee’s job, it will be more difficult for the employer to show that granting the accommodation poses an hardship (undue or otherwise). Accordingly, employers must take great care in crafting job descriptions.

F. Collective Bargaining Agreements: The Supreme Court has made it clear that employers are not required to violate a collective bargaining agreement in order to accommodate a religious conflict in the workplace.

G. Take Homes:
1. Definition of Religion: Remember that the definition of religion is expansive, not narrow. The key here is the perception of the individual holding the beliefs, not the employer’s perceptions of the beliefs the employee holds.
2. Handbooks: Review your policy handbooks as to your description under Title VII and your non-discrimination provisions found therein.
3. Job Descriptions: Ensure that when searching for new hires, take care when describing the essential functions of the position so that they are accurate. This will prevent unnecessary complications as well as provide protection in the long run in the event that something goes amiss. It eliminates the need to explain yourself in many respects.
4. Training – Reasonable Accommodations: Make sure that your supervisors are trained on how to appropriately deal with requests for accommodations.
5. Training – Avoid & Resolve Discriminatory Conduct: Ensure that your supervisors are not engaging in discriminatory conduct as the employer will be held liable. In addition, make sure that they are trained on how to appropriately report and potentially resolve these issues as well.

A. Overview. The growing trend towards acceptance of same-sex marriage in the United States continues its dramatic acceleration. Currently, seventeen jurisdictions allow same-sex marriage: Delaware, Hawaii, Illinois, Minnesota, New Hampshire, New York, Rhode Island, Vermont (all by State Legislature): California, Connecticut, Iowa, Massachusetts, New Jersey and New Mexico (all by Court decisions); and Maine, Maryland and Washington (all by popular vote).

Not surprisingly, this seismic societal shift has implications in the workplace, where employees with competing viewpoints regarding same-sex marriage gather together to work “shoulder-to-shoulder.” Employers must be prepared to protect fully the rights of their employees to both freedom from discrimination on the basis of sexual orientation and freedom from discrimination on the basis of religion. This is no small task, and careful employers provide workplace training to sensitize employees (and, in particular, supervisors) with respect to the implications of the increasingly complex anti-discrimination laws governing the workplace.

B. Protections for Transgender Employees. Maryland is one of 21 states (along with the District of Columbia) that prohibit workplace discrimination on the basis of sexual orientation. A lesser number of jurisdictions – 14 states (along with Maryland and the District of Columbia) – now prohibit and/or will imminently prohibit discrimination on the basis of gender identity/transgender status.
1. Definition. The term “transgender” encompasses transsexuals (individuals who seek to live as a member of the opposite sex), cross dressers, and others who engage in gender expression that is different from that associated with their biological sex. In general terms, a transgender person’s biological sex, or birth anatomy, conflicts with the person’s psychological view of his or her sex.
2. Other Important Terms: Transgender laws usually speak in terms of “gender identity” and “gender expression.”
(a) “Gender identity” is a person’s sense of self as being either male or female.
(b) “Gender expression” describes how a person communicates the person’s gender identity to the world through behavior, clothes, haircut, etc.
(c) A transgender person is one whose gender identity and/or gender expression is different from the person’s biological sex. This person may or may not pursue sex-reassignment surgery.
3. Transgender Rights; Nationwide: Washington, D.C., 13 states, and more than 100 cities and counties across the country outlaw discrimination based on gender identity.
4. Transgender Rights: Maryland: In 2014, Governor O’Malley signed the “Fairness for All Marylanders Act”, which, effective October 1, 2014, will afford State-wide protection to transgender employees. Currently, Baltimore City, Baltimore County, Howard County and Montgomery County provide workplace protections for transgender individuals.
C. Key Issues. There are several challenges that an employer may face as it works to establish a workplace that is free from discrimination against transgender employees.
1. Bathroom Facilities. In states or communities where transgender individuals are protected under anti-discrimination laws, the employer must allow the transgender employee to use whichever bathroom is consistent with the person’s expressed gender. The law requires the employer to allow the transgender employee to judge when it is time to switch bathrooms. Other employees may protest that allowing a transgender person to switch bathrooms, while retaining his or her birth anatomy, encroaches upon the other employees’ privacy rights. In jurisdictions where transgender employees are protected by law, courts are likely to find that employees do not have the right to protest the presence of the transgender individual in the same restroom. The best way to avoid conflict (and liability) is to designate a single occupant unisex bathroom that can be used by any employee, transgender or otherwise, who prefers increased privacy.
2. Shower Facilities.
(a) Some state discrimination laws, including D.C., require employers to make “reasonable accommodations” for transgender employees in shower facilities, locker rooms, or other areas where nudity is “unavoidable.”
(b) Nudity is only “unavoidable” if the shower room or locker facility does not contain private stalls, a curtained area, or other semi-private areas.
(c) Where the facility has some private areas, the employee may use the facility that corresponds to his or her gender identity.
(d) Baltimore County exempts from coverage facilities that are “distinctly private or personal.” However, the Montgomery County and Baltimore City Ordinances do not appear to provide for any exceptions for areas where nudity is unavoidable. Therefore, employers in those counties may not segregate transgender employees by requiring them to use facilities corresponding to their birth sex rather than corresponding to their gender expression.
(e) For the increased comfort and privacy of all employees, companies should consider providing for private spaces within locker or shower facilities.
3. Dress Codes. Even in jurisdictions where transgender people fall into a protected class, an employer is not prohibited from enforcing an otherwise valid dress code or policy, as long as the employer provides for reasonable accommodation of a transgender individual.
(a) Employers should decide on appropriate dress code enforcement based on the facts of each case with consideration for any harm that may occur to the employee as a result of enforcing the dress code or policy.
4. What it Means to Employers. Employers should consider the following general principles when presented with gender identity issues in the workplace:
(a) Respect the employee’s privacy, and refrain from asking questions that do not involve work-related issues
(b) Allow the transgender employee to be involved in planning how and when to advise and educate co-workers.
(c) Allow the transgender employee have a voice when considering how to present a change in gender identity to those clients with whom the employee may have a significant amount of client contact.
(d) Most likely, the transgender employee will change his or her name and want to be referred to by a new name. Employers may need to change employee records and identification documents.
(e) The employee will likely want others to use the pronoun that is appropriate to the person’s expressed gender. The employer should comply with this request and encourage co-workers to do the same.

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