Can Sexual Orientation Discrimination Equate to Religious Discrimination?

Posted on September 3, 2009 by Debra L. Reilly

Yesterday, a fellow employment law blogger, Jon Hyman of the Ohio Employer's Law Blog, made an interesting post.  Sexual orientation discrimination by an employer is still legal in Ohio, so some creative plaintiff's lawyers in Ohio have argued that the employers' actions constituted religious discrimination because the plaintiff employees' lifestyles did not comport with their employers' conservative religious views.  

For example, in Pedreira v. Kentucky Baptist Homes for Children, Inc. (6th Cir. 8/31/09) [PDF], the employer admitted that it fired the plaintiff because of her sexual orientation. The 6th Circuit found that because sexual orientation is not a protected class, Pedreira did not have a sex discrimination claim under Title VII.  However, Pedreira also sued for religious discrimination claiming that living openly as a lesbian was not in line with her employer’s religion and that she was terminated because she did not hold the employer's religious belief that homosexuality is sinful.  The 6th Circuit disallowed the employee's religious discrimination claim.

As another example, in Prowel v. Wise Business Forms, Inc. (3rd Cir. 8/28/09) [PDF], the 3rd Circuit allowed an effeminate gay man to bring a sexual harassment claim based on allegations that his co-workers called him names such as Princess and faggot.  However, Prowel also sued for religious discrimination claiming that his co-workers harassed him because his homosexuality was against their religious views.  The 3rd Circuit disallowed the religious discrimination / harassment claim.

As we know, sexual orientation harassment and discrimination are illegal under California state law, but according to Change.org, sexual orientation discrimination remains legal in 29 other states.   It also remains legal under federal law until Congress passes the proposed Employment Non-Discrimination Act of 2009 ("ENDA").  

So, what is the status of the ENDA?  It was introduced into the House on June 19, 2009, by Massachusett's Democrat Barney Frank, and on July 23, 2009, it was referred to the Subcommittee on the Constitution, Civil Rights, and Civil Liberties.  

Although sexual orientation discrimination and harassment is already illegal in California, awareness of the ENDA will be crucial for workplace investigators who handle EEO investigations for federal employers, agencies, and contractors.

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"Sincerely Held Religious Beliefs" in Religious Discrimination Cases

Posted on August 28, 2009 by Debra L. Reilly

What is “religion”? May an employer question the sincerity of an employee’s alleged religious beliefs? The U.S. Supreme Court has defined "religious belief" as a belief that is: "religious" in the employee's own scheme of things and sincerely held by the employee. Thus, the law's protection extends beyond "traditional" religions.

One of the best examples of an attempt at a broad interpretation of the “sincerely held belief” standard is that of Bruce Anderson, an Orange County bus driver who was suspended and later fired from his job with the Orange County Transit Authority (OCTA) in 1996. The OCTA was running a promotion in conjunction with Carl’s Jr., which required all bus drivers to pass out coupons for free burgers to passengers.  Anderson refused on the grounds that he was a vegetarian and “could not support the slaughtering of cows.”

The case eventually settled out of court, but according to at least one recent EEO attorney blogger, Ronda Higgins Thornton, Anderson’s “ethical beliefs would have been upheld as sincerely held” and the “OCTA should have attempted to make a reasonable accommodation before terminating him.”  Attorney Thornton opines that a “reasonable accommodation in this case could have been allowing Anderson to place the coupons in a manner that passengers could pick them up without Anderson having to pass them out or transferring him to [a] non-driver position during the promotion.”

However, on the issue of “sincerely held religious belief,” I believe the better reasoned opinion is that of employment attorney Alan J. Reinach, set forth in the California Labor & Employment Law Review (March 2009 issue), in the cover article titled Religious Accommodation in California: How the Fair Employment and Housing Act Protections Compare to Title VII.

Attorney Reinach wrote:

"Employers may also challenge the sincerity of a particular belief.  Sincerity questions rarely arise in actual litigation, since most cases involve terminations, and the willingness to suffer loss of a job is itself compelling evidence of sincerity.  Courts also understand that they are not competent to evaluate the content of religious belief and thus are deferential to religious claims — even claims well outside the mainstream — if they do not seriously burden the employer.  For example, in EEOC v. Red Robin, the court respected the plaintiff’s claim that his tattoos were religious, expressing service to the sun god Ra, notwithstanding how unorthodox and uncommon the practice.  However, in Friedman . . . the court did not find veganism sufficiently religious to require a pharmaceutical manufacturer to accommodate a job applicant’s refusal to receive a mumps vaccine derived from chicken embryos.  The court discussed federal cases extending conscience protections broadly, especially in the arena of conscientious objection to military service, but refused to regard veganism as providing the sort of comprehensive world view necessary to qualify as a religion."

Religious discrimination cases are very interesting to investigate and there is usually some way to bring the sides together at the end of the investigative process so as to avoid litigation.  Here are some of the main issues that an investigator must look into:

  • Does the complainant sincerely hold a religious belief that conflicts with employment requirements?
  • Has the complainant informed his/her supervisor of the conflict?
  • Has the complainant been penalized for failing to comply with employment requirements?
  • Is the complainant’s belief or practice of a religious nature?

According to Attorney Thornton, “factors that may undermine an assertion of sincerely held beliefs are whether the employee behaves in a manner inconsistent with the professed belief and whether the benefit is likely being sought for secular reasons.” Accordingly, it is important to also investigate factors, which might also undermine the complainant’s assertion that he/she sincerely holds the professed belief(s).

And finally, could the employer have accommodated the religious belief without imposing an undue hardship on the employer?

The Supreme Court has defined "undue hardship" as expending more than a minimal effort or expense. This is much more favorable for employers than the standard under the Americans with Disabilities Act (ADA). Since that ruling, however, the Equal Employment Opportunity Commission (EEOC) and many courts have applied a more stringent test.

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