When Off-Duty Religious Practice Impacts the Workplace 16:31, March 13, 2017

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When Off-Duty Religious Practice Impacts the Workplace

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A worker’s religious practice outside of work is normally a private matter, which is also protected from employer interference by anti-discrimination laws. Sometimes, however, off-duty conduct, including a worker’s religious practice, can impact the workplace. From a compliance standpoint, it’s important to examine whether addressing any perceived impact on the workplace could lead to credible claims of religion discrimination.

Close Cases

According to the Atlanta Journal-Constitution (AJC), the Georgia Department of Public Health (DPH) recently settled a failure-to-hire lawsuit for $225,000 in favor of a job candidate who claimed that the agency had withdrawn his employment offer after videos surfaced showing the candidate giving sermons against homosexuality and evolution. The DPH reportedly stated that it had rescinded the employment offer because the candidate had failed to report that he moonlighted as a pastor at a California church. This reportedly violated agency policy requiring disclosure and pre-approval of outside employment.  A spokesperson for the DPH reportedly said that the candidate’s “religious beliefs had nothing to do with the decision to withdraw the offer.”

A similar case recently survived a motion to dismiss, this one involving the former fire chief of the Atlanta Fire and Rescue Department (AFRD), who was terminated from his job, allegedly in retaliation for writing a “non-work-related, faith-based book” in which he expressed his view that “homosexual acts” are “contrary to God’s will.”

The DPH’s decision to settle and the AFRD’s decision to continue to litigate their respective cases, show in each instance the risks associated with defending against such difficult claims. Both of these cases involved government employees whose religious expression is protected by the First Amendment of the US Constitution.

Although employees who work for private companies generally do not have First Amendment rights associated with religious expression affecting their work, they are protected by anti-discrimination laws. The DPH and AFRD cases could apply outside the public sector to illustrate the difficulty of determining whether an employee or job-seeker is engaging in questionable off-duty conduct (such as advocating sexual orientation discrimination) or exercising protected religious expression, which could also be protected by laws prohibiting religion discrimination. But most cases are not so close.

Unprotected Misconduct

So long as employers steer clear of discriminating against employees on the basis of religion or other protected characteristics or activities, they may generally discipline or even terminate employees who engage in off-duty activities that harm the employer’s reputation, provided that the employee’s actions are not otherwise protected by law.

In one recent instance, Andrew Shirvell, an assistant attorney general for the state of Michigan, was ineligible for unemployment benefits after being fired for off-duty homophobic remarks. These remarks, which Shirvell published in a blog, “created a media firestorm, which in turn created a public-relations crisis.” Although Shirvell stated that he was speaking as a private citizen, media outlets consistently identified him as an assistant attorney general. A representative of the Department of Attorney General ultimately appeared on national television to distance the Department from the employee’s views.

In this case, the employee did not claim that his opinions were protected forms of religious expression. Instead, Shirvell had argued that because he was a state employee, his comments were protected speech under the First Amendment. However, this argument failed. Although speech by public employees who are speaking as private citizens is usually protected by the First Amendment, the court ruled that in this case that the state’s “interests in the efficient provision of governmental services out-weighed Shirvell’s speech interests.”

In another recent example of unprotected off-duty conduct, an employee was terminated in response to ethics complaints regarding Facebook postings, including one post “depicting a person wearing a Ku Klux Klan-reminiscent white, hooded robe emblazoned with the Los Angeles Clippers logo and the number 42, and was captioned ‘Game 5 in LA is Free Sheet Night . . . Donald Sterling Bobble head doll night too!’” The former employee claimed that the posts had been intended to protest racial discrimination, which she claimed was a legally protected activity. However, the court disagreed, noting that the employee’s intent was irrelevant where the image was “objectively offensive” and had been shared on Facebook without comment indicating whether the employee condoned or condemned the racist symbol that was depicted.

Workplace Impact

Off-duty conduct that negatively impacts the workplace is not limited to reputational harm to the employer. By the same token, employers must reasonably accommodate religious practices of employees, but must not make participation in religious activities — even off-duty ones — a job requirement. The following two cases exemplify the two sides of this compliance coin.

Proselytizing to the Protected

Shortly after Ella Sun Martin, a Chinese immigrant, was hired by Stoops Buick as a payroll clerk, Office Manager Debra Trauner began to offer to read Bible passages to Martin to “help her understand American society.” Martin declined these offers, saying that she was a Buddhist and not interested in the Bible. One Friday, Martin refused Bible study for the last time. Trauner fired her the following Monday. Martin sued Stoops Buick for religion discrimination. The Court held that “a reasonable juror could find that [Martin’s] termination was motivated by her refusal to continue reading the Bible with Trauner . . . The last time Trauner asked [Martin] to participate in Bible Study was [a]Friday, [and Martin] was terminated the following Monday . . .”  Martin v. Stoops Buick, Inc.

Voluntary Prayer Meeting Permitted

On the other hand, off-duty religious studies or prayer meetings among co-workers may be permissible, so long as the choice to participate (or not to participate) does not impact any employee’s job. As a federal court in Illinois observed in a 2015 religion discrimination case:

allegations concerning off-duty prayer meetings and the overt religiosity of some … co-workers [do not] describe objectively offensive conduct. Title VII requires employers to make reasonable efforts to accommodate the religious practices of employees. It would put employers between Scylla and Charybdis, then, to conclude that accommodating the religious practices of some employees could be considered objectively offensive to employees who practice other religions, particularly in the absence of evidence that the employer engaged in conduct that coerced employees to participate in such activities. Footnote 9, Harris v. Electro-Motive Diesel, Inc. [internal quotes and citations omitted]

A Balancing Act

Addressing off-duty religious conduct with sensitivity to the rights of all workers to be free from discrimination requires a careful balancing act. Employees, including managers in charge of implementing policy, need effective, case-based training to learn how to apply complex policies and legal requirements to varied workplace situations involving religious practices. For further discussion about religion’s impact on work (which can be a boon if part of an overall diversity effort), please also see Chris Day’s article, Religious at Work: Discrimination or Diversity?

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Steve Treagus
Stephen Treagus, JD's, previous practice as an attorney specializing in employment litigation exposed him to the rough-and-tumble world of employment relationships gone awry. Today, this experience informs his articles and courses, helping employers avoid costly litigation and get employment law right. Stephen earned his JD from John F. Kennedy University School of Law and his BA from Sonoma State University.

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