Kentucky County Clerk Kim Davis was recently jailed due to her refusal to issue marriage licenses to same sex couples. In other news, a flight attendant refused to serve alcohol due to her religious beliefs. The public reaction to both situations was intense and the debate well-publicized. These events also highlight a new wave of confusion regarding the requirements facing employers with respect to religious accommodations. The answer for employers can differ widely depending upon the industry, jurisdiction, legislation and the specific interpretation of the laws at issue. Some states have enacted so-called religious freedom statutes and thus religious objectors have significant protections. Read on for tips to employers.
The First Amendment bars the government from discriminating based on religion. Likewise, Title VII of the Civil Rights Act prohibits employers from discriminating on the basis of religion. However, the government does not have a constitutional duty to give religious objectors special exemptions from generally applicable rules. That is where Congress stepped in. In 1972, Congress amended Title VII to make clear that employers are required to reasonably accommodate an employee’s religious observance or practice, as long as doing so would not result in an undue hardship on the business. Examples of such religious accommodations include a Muslim applicant being exempted from a retailer’s prohibition on wearing headscarves; a Christian nurse who was allowed to not participate in abortion procedures; and a Jewish employee who was excused from working on Saturdays.
Consider the following recent events:
Ex. A: Charee Stanley, a Muslim flight attendant, filed an EEOC complaint against her employer, ExpressJet Airways. Approximately two years into her employment, Stanley converted to Islam and claims to have a religious objection to serving alcohol. She alleges that this had not been a problem, as other flight attendants served the alcohol on her behalf. However, she claims that recently a co-worker complained about performing the extra work and she was placed on unpaid leave. She further alleges that she should have been provided a reasonable accommodation to not be required to serve alcohol. To prevail, ExpressJet will need to prove that requiring the other flight attendants to serve alcohol for her would result in an undue hardship on its business. As with all accommodation cases, this will be a highly fact-specific inquiry, but ExpressJet will have the burden to establish that this accommodation has an undue hardship on its business.
Ex. B: Kentucky County Clerk, Kim Davis, refuses to issue marriage licenses to same-sex couples, citing religious objections. Some argue that she should be fired if she is unwilling to do her job. But, the issue is not that simple. As stated above, there is no constitutional right to a religious accommodation, and Title VII does not apply to elected officials. However, Kentucky, like about 20 other states and the federal government, has a Religious Freedom Restoration Act which requires government agencies to exempt religious objectors from generally applicable laws. Some courts have held that the exemption must be provided as long as it does not result in an undue hardship and thus mirrors Title VII case law. However, other courts have taken a more expansive view and have held that the exemption must be granted unless denying it is the least restrictive means of serving a compelling government interest. It is unclear what standard will be applied in this case. In addition, the outcome will likely also hinge on the specific accommodation Davis is seeking.
On September 14, 2015, a same-sex couple entered the Rowan County Clerk’s Office and requested a marriage license. Davis never left her office and, instead, Deputy Clerk Brian Mason issued the license. Instead of Davis’ name appearing on the license, the license reflected that it was issued pursuant to a court order and under the authority of the city of Morehead, Kentucky. As Kentucky law currently requires that marriage licenses be issued by County Clerks, it remains to be seen whether these licenses will be deemed valid and enforceable. In addition, claims are still pending by and against Kim Davis. Thus, this case, like this area of law, will continue to evolve.
These examples of religion intersecting with the work-place represent many others facing employers. Employers should take heed of this developing line of precedent to ensure the employers do not encroach upon an employee’s protected rights.
Bottom line – Don’t be afraid to ask for help. This topic involves a delicate balancing of the rights of religious objectors and other employees, as well as business missions and beliefs. Further complicating matters is the fact that the law on this topic varies greatly based on federal, state, and local law, as well as how different courts interpret those laws. Thus, it can be challenging for employers to advance their own interests while still upholding the rights of all its employees.