FordHarrison

Executive Summary: Maintaining a diverse workforce is increasingly necessary for companies to be successful and competitive in the global marketplace. But what happens when diversity, equity and inclusion initiatives collide head on with an employer’s obligation to accommodate an employee’s religious beliefs? Employers are facing this and other dilemmas with increasing frequency, as they build and strengthen their efforts towards a diverse and equitable workplace, by supporting and celebrating all cultures, backgrounds, beliefs, and religions. In the wake of the U.S. Supreme Court’s decision in Bostock v. Clayton County recognizing that LGBTQ+ employees are protected by Title VII of the Civil Rights Act of 1964, employers are increasingly being placed in the difficult position of weighing often diametrically opposed rights. Religious freedom or LGBTQ+ rights; how do you choose? It’s simple; you don’t.

These rights – an employee’s “sincerely held religious beliefs” and an employee’s gender identity/transgender status and sexual orientation – are both protected by Title VII (and other state and local laws). For LGBTQ+ employees, Title VII prohibits discrimination and harassment on the basis of gender identity/transgender status and sexual orientation. Title VII also requires employers to reasonably accommodate their employees’ religious observances, practices and beliefs, unless doing so would be an “undue hardship” − not a high bar to clear. An “undue hardship” is defined as any accommodation that would impose more than a de minimus or trivial cost on the employer’s operations (a much lower standard than used for disability accommodation, even though similar terms are used). As a result, employers could, in many situations, deny religious accommodations on the basis of difficulty or expense. But that is not the solution. While some religions strongly oppose LGBTQ+ initiatives as being contrary to their faith, employers can satisfy both groups while building bridges and expanding knowledge in the process. When these situations are addressed correctly, religious and LGBTQ+ employees can not only co-exist, but thrive in an inclusive and diverse workplace.

Thankfully, employers are not left to operate in a vacuum. Courts have considered similar issues over the last few decades, most finding that even diversity initiatives can be subject to religious accommodation. For example, in a federal district court case in Colorado, a Christian employee refused to sign an anti-discrimination policy that required employees “to fully recognize, respect and value the differences . . .”. The employee claimed that some behavior was considered sinful by Christianity and he could not “value” such behavior. The employer terminated his employment. The court held that the employer could accommodate the employee without suffering an undue hardship by making a minor revision to the language of the policy to require employees to “fully recognize, respect and value that there are differences among all of us.” In another example, a former barista in New Jersey sued a coffee chain, claiming she was wrongfully terminated after refusing to wear a “PRIDE” T-shirt based on her religious beliefs. And, currently pending before the U.S. District Court for the Eastern District of Arkansas is a case brought by the EEOC against a grocery store on behalf of an employee who refused to wear a rainbow-colored heart emblem endorsing LGBTQ+ values, which is set for trial in March 2022.

But in EEOC v. Harris Funeral Homes (a decision also addressed by Bostock, albeit on other grounds), where a funeral home terminated the employment of its transgender funeral director, the Sixth Circuit rejected the funeral home’s reliance on religious beliefs as a defense to the employee’s Title VII discrimination claim. And recently a federal district court held that an employer did not violate Title VII by not accommodating an employee who opposed the employer’s practice of displaying a Pride flag during Pride month. The court noted that merely expecting the employee to attend work in the same location that a Pride flag was displayed did not amount to asking him to adhere to a conflicting employment requirement.

Despite these hurdles, employers should not shy away from their diversity initiatives. Instead, each request for accommodation should be considered independently, with an understanding of the unique facts of the specific situation, knowing there is no “one size fits all” response that will achieve the balance needed for a harmonious and cohesive workforce. When an employee requests a religious accommodation, an employer must consider it, but is not required to provide the specific accommodation requested, or even the employee’s ideal accommodation, so long as the accommodation provided is “reasonable.” Furthermore, an employer is never required to grant an accommodation that would eliminate one of the essential functions of an employee’s job. For example, an employee’s request to not actively participate in LGBTQ+ inclusion initiatives during PRIDE month may be reasonable, but transferring an employee to a role that does not require interaction with another employee because of their LGBTQ+ status is not. Employers faced with a clash between their diversity and inclusion initiatives and an employee’s request for religious accommodation should carefully consider whether both can be accomplished and may need to resort to inventive solutions to accommodate the needs of all employees.

Bottom Line for Employers: Employers should not be dissuaded from promoting diversity, equity, and inclusion in the workplace, or from supporting both LGBTQ+ and religious workers, vendors, and customers. Developing a training program that demystifies the underlying tenets and culture of different groups, whether religious or LGTBQ+, will go a long way to increasing understanding and bridging the perceptual chasm that will only increase unless employers continue to make efforts to bring people together. Such initiatives create and promote a diverse workforce, which, in turn, gives employees a sense of belonging and interconnection, and ultimately improves employee morale and performance. This includes accommodating an employee’s sincerely held religious beliefs that run contrary to the employers’ diversity and inclusion efforts. Even where a religious employee’s requested accommodation is not reasonable or is an “undue hardship,” employers who make the effort to explore the underlying concern, address the issue, and champion inclusivity for all will be rewarded with employee loyalty, longevity, and a benefit to the bottom line.

This alert is part of our Diversity Legal Alert Series – Diversity in the Works. Members of FordHarrison’s Diversity and Inclusion practice group publish Alerts in this series addressing a variety of legal topics that may impact employers’ diversity initiatives. For information on other diversity, equity, and inclusion training modules available to your organization, including details on our recent six-part webinar series, click here.

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