Collision of religious and gay rights in the workplace

by Bob Ritter

IN THE CONSTITUTION, the free exercise of religion is an absolute right. However, the right must occasionally be tempered when the exercise of such freedom conflicts with other people's rights. Two bills pending in Congress, the Employment Non-Discrimination Act of 2007 (ENDA, H.R. 3685) and the Workplace Religious Freedom Act of 2007 (WRFA, H.R. 1431), shed light on this conflict in the workplace.

ENDA, passed in the House on November 7, 2007, would add "sexual orientation" to the list of protected groups (classified by race, religion, ethnicity, sex, age, disability, and pregnancy), thereby granting broad protections against discrimination in the workplace for gay men, lesbians, and bisexuals.

Specifically, the bill would make it illegal for an employer "to fail or refuse to hire or discharge any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation." Essentially this means that an employer cannot refuse to hire a person if he or she identifies as, or is perceived to be, a gay man, a lesbian, or bisexual. Nor may an employer terminate for the same reason. The Act exempts certain religious organizations and the military.

Senator Edward Kennedy (D-MA) has said he will soon introduce a similar measure in the Senate. The early reaction of Republican senators has been that a carefully worded bill that doesn't include protection for "gender identity" (transsexual and transgender individuals) and possibly a broader exemption for religious-oriented employers (like religious bookstores and faith-based organizations) might pass early next year.

The second bill pending involves accommodation of religious freedom in the workplace. Currently, under Title VII of the Civil Rights Act of 1964, an employer is required to make a reasonable accommodation for the sincerely held religious views of their employees, absent "undue hardship." The Supreme Court, in Trans World Airlines v. Hardison, interpreted undue hardship to mean anything more than a "de minimis cost." WRFA, pending before the House Subcommittee on Health, Employment, Labor, and Pensions, would raise the employer's burden to "an accommodation requiring significant difficulty or expense." Clearly, this would make it harder for an employer to successfully maintain an undue hardship defense.

From a humanist perspective, this change, if enacted, is worrisome because it would further elevate the rights of the religious over the nonreligious. Assuming both ENDA and WRFA become law (although neither is assured of passage), the potential for conflicts between the two abound.

In an October 31, 2007, New York Law Journal article titled "Employer's Dilemma: When Religious Expression and Gay Rights Cross," Judith Moldover, who specializes in labor and employment law, held that the conflict between sexual orientation discrimination (ENDA) and the duty of an employer to accommodate an employee's religious bias against homosexuals (WRFA) typically arises in three areas: "the refusal to service homosexual clients, refusal to participate in diversity programs and training, and supervisory conduct."

Three types of hypothetical conflicts thus arise. And because neither ENDA nor WRFA have been tested in the courts to determine their constitutionality or precisely how each will be applied, there is no single correct solution in each of the three types of cases. Each case depends upon the facts of the situation and requires a careful balance of the rights of those involved within the framework of applicable law.

Take an example in which a medical center employs three counselors who are required to rotate between offices in two cities. Under current law, a court would most likely find that an employer could terminate a counselor for refusing to provide counseling services to a homosexual patient because such an accommodation could only be accomplished by shifting responsibilities among the three counselors and therefore creates an undue hardship for the employer. (See Bruff v. North Mississippi Health Services.)

The outcome is less certain under WRFA. The result would probably be the same for a small medical center, however for a larger medical center, a religious accommodation may be difficult but not infeasible. Under this scenario, it would appear that WRFA would require the accommodation.

Consider a second situation in which an employer displays posters as part of a workplace diversity campaign. An employee, motivated by his religious belief that homosexual activities violate the commandments contained in the Bible and that he has a stated duty "to expose evil when confronted with sin" posts biblical scriptures on an overhead bin in his work cubicle condemning homosexuals to death. During several meetings with management the employee contends that his religious views can only be accommodated if he is permitted to post messages intended to demean and harass his co-workers (i.e., the status quo) or if the company excludes sexual orientation from its workforce diversity program.

These were the facts in Peterson v. Hewlett-Packard Co. In that case an appellate court found that the employee didn't have a bona fide religious belief, the practice of which conflicted with an employment duty. As a result, the court upheld the employer's firing of the employee for insubordination noting that either of the accommodations demanded by the employee "would have created undue hardship for [the employer] because it would have inhibited its efforts to attract and retain a qualified, diverse workforce, which the company reasonably views as vital to its commercial success."

The outcome would most likely be the same under WRFA because of the employee's lack of flexibility and the employers' interest in promoting its diversity program. However, suppose the employee was located in an area not frequently trafficked by other employees and the biblical passages were displayed in a manner intended solely for the employee's personal reflection. It's conceivable, under WRFA, that the employer would have to make a religious accommodation.

Regarding supervisory conduct, consider a scenario in which a supervisor repeatedly tells a lesbian subordinate of her religious objections to homosexuality, including during a performance review. The supervisor's actions violate the employer's rigidly enforced anti-discrimination and harassment policy that includes sexual orientation.

The courts would undoubtedly side with the employer's right to reprimand the supervisor under both current law and WRFA. However, Moldover suggests that under WRFA an employer may have to accommodate a supervisor's faith-based expression of anti-homosexual views if such views were expressed in a nonharrassing way, unaccompanied by any adverse action against homosexual subordinates.

If both the Employment Non-Discrimination Act and the Workplace Religious Freedom Act become law, the legal duty of employers to accommodate employees with sincerely held faith-based beliefs against homosexuality will be heightened, though not by as much as the change in the "undue hardship" standard would suggest. As Moldover counsels, most ENDA-WRFA conflicts can be avoided or resolved by good communication between an employer and its employees, flexibility on everyone's part, and an awareness of the rights of all concerned--with the onus on the employer to balance the right to religious accommodation with the right to be free from discrimination based on sexual orientation. In other words, a humanistic approach utilizing reason and compassion can see us through these dilemmas.