I’ve been waiting for the lawsuits to come rolling in claiming religious discrimination for being fired for objecting to gay relationships. This one happened a year ago, before Obergfell, but we will see more in the wake of religious objections to gay marriage.
Thomas Banks is a Christian engineer who worked for Ford Motor Company. In 2014, Ford published an internal article celebrating the 20 year anniversary of its employee resource group for LBGT employees, called GLOBE. Banks wrote a comment on the post saying:
For this, Ford Motor Company should be thoroughly ashamed. Endorsing and promoting sodomy is of benefit to no one. This topic is disruptive to the workplace and is an assault on Christians and morality, as well as antithetical to our design and survival. Immoral sexual conduct should not be a topic for an automotive manufacturer to endorse or promote. And yes – this is historic – but not in a good way. Never in the history of man has a culture survived that promotes sodomy. Heterosexual behavior creates life. Homosexual behavior leads to death.
Ford evaluated the comment and fired Banks for violating its harassment policies, which includes zero tolerance for harassment based on sexual orientation. A version of the policy is here. (I don’t know if it is current.)
Banks claims he was fired because of his religion, which if true, would be illegal under both Federal and Michigan law, as well as every other state’s discrimination laws.
So we have a situation where the employee claims religious discrimination and the employer claims harassment based on sexual orientation in violation of its policies.
Generally employers are required to accommodate religious expression up to the point it is disruptive to the workplace or offensive or harassing to other employees. The EEOC guidelines say:
♦ Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
♦ Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.
♦ To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even asent a complaint.
So while employees can be any religion they want and an employer cannot discriminate because an employee practices a particular religion (or no religion), employees do not have a unlimited right to express their religious views however they want at work. When religious expression becomes disruptive or harassment, an employer is free to discipline or fire the person for that conduct, even if it is based on religious expression.
It’s also important to distinguish between practicing a religion and expressing religious views. An employer may be required to allow an employee to conduct personal prayer during work time by adjusting schedule or breaks, or simply allowing it. They may have to give certain religious holidays off- subject to the nature of the work and the employee’s general entitlement to take leave. But an employer is not required to allow an employee to turn off all electronics in the building or shut down the office for observance of a particular religious practice. The employee can observe those restrictions elsewhere.
Employees are free to practice their religion, but they cannot impose it on others at work, or demand that the employer see things their way just because they are expressing a religious belief.
Similarly, if an employee refuses to do her job duties because the work violates her religion, the question becomes whether making an accommodation would create an undue hardship on getting the work done. So if the employee is refusing to do one of her primary job duties, like issuing marriage licenses, it is quite likely that the employer does not have to hire another employee to do that work. It depends on what percentage of the work involves the objectionable duty, whether other employees can cover it and still get their own work done, the expense of hiring more employees or paying overtime to do the work, and the overall pain in the ass factor (my term). But each case is evaluated on its particular circumstances, the work involved, and how much the religious expression or practice interferes with the work, workplace, and other employees.
I do not expect to see great clarification by courts on this issue ever. Employers are generally given broad discretion to make decisions about what is disruptive to the workplace, and the competing rights can’t be generalized into a simple rule or test that can be applied in any situation. Instead, cases will be decided on their individual facts.
That said, I would not take Mr. Banks case. And I expect that employers will not be required to tolerate comments full of hate, vitriol, and complete misstatements of objective facts and reality.
If you want to read Mr. Bank’s complaint against Ford, it is included in this article by Kate Abbey-Lambertz, Detroit editor for the Huffington Post.