Is There Going to be a New Standard for Religion in the Workplace? - American Society of Employers - Anthony Kaylin

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Is There Going to be a New Standard for Religion in the Workplace?

religionAlthough there were a number of ancillary issues with the recent U.S. Supreme Court case of Kennedy v. Bremerton School District, No. 21-418 (June 27, 2022), a major question for employers is how to now regulate religion in the workplace.  At first blush, the Kennedy decision seemed to be about a public high school teacher leading a prayer with students at the 50-yard line after a football game, separation of church and state, but it has broader implications as to religion in the workplace.

Kennedy lost his job as a high school football coach in the Bremerton School District after he knelt at midfield after games to offer a quiet personal prayer. Mr. Kennedy sued in federal court, alleging that the district’s actions violated the First Amendment’s Free Speech and Free Exercise Clauses. Both the District Court and the U.S. 9th Circuit Court of Appeals affirmed the school district’s summary judgement motion.

However, the Supreme Court overturned the decision and reinstated the case.  The Supreme Court characterized the activities of Kennedy as follows: “Kennedy was not engaged in speech ordinarily within the scope of his coaching duties. His prayers occurred during the postgame period when coaches were free to attend to personal matters and students were engaged in other activities.”  This legal approach is questionable, given that students may feel compelled to join the coach after the game and engage in prayer, regardless of how voluntary it may seem. 

But this line of reasoning may be now applied to the general workplace.  Think of employee resource groups or ERGs.  The courts long held that employers do not have to recognize religious ERGS.  However, employee ERGs may be held on their own time, not company time, when the employees are able to attend to personal business.  Therefore, can employers deny the existence of a religious ERG if the employees meet on their own time? 

Which takes the situation to the next level – can employers discipline employees who because of their religious belief they refuse to work with someone or perform a duty that violates their religious belief?   There have been a long line of cases upholding the employer when the employee was denied their request for an accommodation because of their religious belief, for example, working on Sabbath.  There has to be an interactive discussion, like in any accommodation situation, but the bar is not as high as a disability case under the ADA as to final outcome.

As to Title VII of the Civil Rights Act of 1964, the law prohibits employers from discriminating against individuals because of their religion (or lack of religious belief) in hiring, firing, or any other terms and conditions of employment. The law also prohibits job segregation based on religion, such as assigning an employee to a non-customer contact position because of actual or feared customer preference.

Yet it doesn’t seem to apply in the religious institution situation.  Just a few years ago, the Supreme Court ruled in  In Our Lady of Guadalupe School v. Morressey-Berru, No. 19–348 (July 8, 2020),  that religious institutions can discriminate against its lay school teachers without any legal consequence.  The Supreme Court ruled that these groups have a right to decide matters of “church government” without government interference and interpreted employment decisions as the kind of “internal management decisions” that are protected under the First Amendment of the Constitution.

What about the for-profit employer?  In the Hobby Lobby case (Burwell v. Hobby Lobby, No. 13-354, 13-356 (June 30, 2014)), the U.S. Supreme Court stated that for-profit employers who have sincerely held beliefs could request accommodations from mandated requirements, as in the case of Hobby Lobby, the contraceptive aspect of the ACA. 

In an earlier administration, the Hobby Lobby case and other high-profile Religious Freedom Restoration Act rulings have been used to justify proactively protecting health care providers or faith-based adoption agencies that won't work with some members of the LGBTQ community.

Still, what if an employee in a nonreligious institution refuses to work with a woman who had an abortion or is cohabitating outside of marriage, or some other situation which would violate that employee’s sincerely held religious beliefs?  Or a situation where the male employee refuses to be alone with a woman in a situation for example, interviews, performance reviews, or simply discussing work?  Whose rights would predominate? 

For example, given the overturning of Roe, can a supervisor pressure a direct report not to have an abortion, in order to keep a position, receive a promotion, or abide by the supervisor's anti-abortion stance?  In earlier cases, that situation would violate the Pregnancy Discrimination Act, and presumably would still today.  However, a case could go before the Supreme Court in which it could rule otherwise. 

This area is evolving.  Interestingly enough, all these religious rights cases, including Kennedy, were written by Justice Alito, meaning that there is likely a long-term plan to the reasoning of these cases.  The takeaway is that employment decisions may get more complicated if a religious overtone is a part of any decision, whether by an employer or an employee.  It is recommended that HR discuss with their legal counsel what implications their current handbook policies may have, given the new protections of religious beliefs by the Supreme Court.

 

Source: Business Insider 6/29/22, Buchanan Law 7/23/22, Desert News 6/27/19

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