Politics, religion and football . . . Are there ANY safe water cooler topics?

Q.     This week, the Pope arrived in the United States[1], presidential candidate Ben Carson made a statement regarding a Muslim president[2], Green Bay’s quarterback, Aaron Rodgers, made a dig at Seattle’s quarterback, Russell Wilson, by commenting that “God is a Packer’s fan”[3], and there is more news with the ACLU regarding the Kentucky clerk[4]. My business’ water cooler has become the middle[5] of religious debate and conflict. I would like all my employees to leave their religion at their church, temple, mosque, etc. Can I forbid my employees from discussing religion at the workplace?

A.     This is a difficult employment situation because both sides have rights – (1) those who wish to share their religious beliefs, and (2) those who are offended by those religious beliefs. In their Compliance Manual (Section 12: Religious Discrimination), the Equal Employment Opportunity Commission (“EEOC”) provides the following guidance for employers faced with religious expression in the workplace.

Permitting Prayer, Proselytizing, and Other Forms of Religious Expression

Some employees may seek to display religious icons or messages at their work stations.  Others may seek to proselytize by engaging in one-on-one discussions regarding religious beliefs, distributing literature, or using a particular religious phrase when greeting others.  Still others may seek to engage in prayer at their work stations or to use other areas of the workplace for either individual or group prayer or study.  In some of these situations, an employee might request accommodation in advance to permit such religious expression.  In other situations, the employer will not learn of the situation or be called upon to consider any action unless it receives complaints about the religious expression from either other employees or customers.  As noted in §§ II-A-3 and III-C of this document, prayer, proselytizing, and other forms of religious expression do not solely raise the issue of religious accommodation, but may also raise disparate treatment or harassment issues.

To determine whether allowing or continuing to permit an employee to pray, proselytize, or engage in other forms of religiously oriented expression in the workplace would pose an undue hardship, employers should consider the potential disruption, if any, that will be posed by permitting this expression of religious belief. As explained [in the manual], relevant considerations may include the effect such expression has had, or can reasonably be expected to have, if permitted to continue, on co-workers, customers, or business operations.

http://www.eeoc.gov/policy/docs/religion.html

While the EEOC’s Compliance Manual is not binding law, the EEOC is the agency charged with enforcing federal laws that pertain to religious discrimination. As such, their guidance and interpretation of legal authority should be heeded. That said, heeding this advice is difficult because it is rather subjective. And, preventing an employee from sharing his or her religious beliefs can result in a claim by the sharing employee. Meanwhile, permitting the employee to share can lead to a claim by an employee offended by the religious comments. As a result, the employer is potentially “damned if they do and damned if they don’t.”[6]

Employers faced with these types of religious accommodation questions should consider reviewing the EEOC link provided above. Then, they should call their employment lawyer, call their legislator and maybe, say a few prayers.

[1] http://www.foxnews.com/politics/2015/09/24/pope-francis-delivers-historic-address-to-congress/?intcmp=hpbt3

[2] http://www.nytimes.com/politics/first-draft/2015/09/22/ben-carson-cant-change-subject-after-contentious-muslim-remark/?_r=0

[3] http://bleacherreport.com/articles/2570096-aaron-rodgers-credits-god-after-packers-defeat-russell-wilson-seahawks

[4] http://www.washingtonpost.com/news/morning-mix/wp/2015/09/22/aclu-kentucky-clerk-kim-davis-is-meddling-with-countys-marriage-licenses/

[5] choose one: middle east, middle Kentucky, middle of the Meet the Press, middle of the Pope’s visit

[6] ironic

Are you ready for some football?? How do I deal with my employees’ fantasy football distractions?

Q.    Are you ready for some football?? I am not! I am getting ready for my business’ economic forecast to become deflated. All of my employees are obsessed with fantasy football. I understand that I am not in a league of my own. Fox News recently posted an article on a study concluding that Fantasy Football costs employers $16 billion per year (which is a 3 billion dollar increase from last year).[1] Is there anything I can do to tackle these gridiron fantasy fanatics besides hiring Terry Tate, the original office linebacker. [2]

A.     Perhaps. Interestingly, however, the study conducted by Challenger, Gray & Christmas (“CG&C”) noted that although Fantasy Football may cost employers billions and billions of dollars, cracking down would be so crushing to morale that it would actually cost businesses more. As a result, CG&C encourages companies to form their own fantasy football leagues to foster camaraderie. Of course, this also creates a host of other problems. Outside of the issues created by the improper use of a company resources, loss of company time, potential violations of an employer’s computer policies, and legality issues with respect to company-sponsored gambling, there is also the potential for harassment and discrimination claims. Indeed, there have been at least two cases in which fantasy football played a key role in employment-related lawsuits. In one suit, trash talk was the culprit when one fantasy football owner …er…employee made a comment referencing religion. The employee who the comment was directed at took offense. In another lawsuit, a female employee felt excluded because she was not invited to participate in the league (which was comprised of male employees).

So what is an employer to do? If you don’t mind losing more than the $16 billion already lost – crush morale and outlaw the leagues altogether. If, on the other hand, you want to utilize the opportunity to build camaraderie, make sure it is an all-inclusive camaraderie-building experience. For example, consider ways to ensure fantasy owners select work appropriate names and logos for their teams and remind employees/participants that workplace discrimination and harassment policies are not excused simply because it is fantasy football. Trust me, there is nothing fantastic about a lawsuit.

O.k……now that I am done drafting my blog, I need to set my line up. It should only take me a couple of hours…..My morning time entry will look something like this:  (Research player projections; inter office conference and talk trash with fellow owners; review league rules; review waiver wire; and set line up.  2.4 hours)

[1] http://www.foxbusiness.com/industries/2015/08/25/fantasy-football-will-cost-your-boss-16b/

[2]http://www.bing.com/videos/search?q=terry+tate+video+official&FORM=VIRE3#view=detail&mid=B975327C7106878F57ABB975327C7106878F57AB

I see the Kentucky clerk was arrested today for refusing to issue a same-sex marriage license. How do I respond if my employees refuse to follow laws based on their religious beliefs??

Q:     How do anti-discrimination laws that list sexual orientation also protect those with firmly held religious beliefs opposing such things as same-sex marriage?

A:    This week much has been made about a county clerk in Kentucky who is refusing to issue marriage certificates to same-sex couples.  She bases her refusal on her religious beliefs.  This is a reemerging theme across the United States, whether it be pizza parlors, bakeries, or government agencies wherein an individual refuses to provide a service that would otherwise validate, condone, or service an event or act (such as a gay marriage) that they feel is wrong.  This seemingly pits freedom of religion (and religious anti-discrimination laws) against equal protection (and sex anti-discrimination laws).  This blog post merely touches on the issue from an employment standpoint.  Ultimately, this is a complex issue that will certainly continue to play out in court rooms and legislatures for years to come.

As a threshold matter, sexual orientation is not specifically noted as a protected class in the federal anti-discrimination law (e.g. Title VII, The Civil Rights Act of 1964 section 7, 42 U.S.C. 2000e et seq.). However, the Equal Employment Opportunity Commission (“EEOC”) takes the position that “sex,” which is listed as a protected class in Title VII, encompasses sexual orientation.  Religion is specifically listed.  In California, sexual orientation, along with sex, gender identity, and gender expression are all specifically denoted in the state’s anti-discrimination laws (e.g. California Fair Employment and Housing Act, Government Code section 12900 et. seq (“FEHA”)).  Also protected in California is an employee’s ability to engage in political activity, which, in recent years and months, has involved participation in discussions surrounding gay marriage and faith-based business refusals.  (See California Labor Code section 1101 et. seq.)  This reemerging conflict is not surprising.  It is not hard to predict that some religious employees may not want to contribute to a gay marriage ceremony, particularly after supporting recent legislative efforts to keep the traditional definition of marriage.  Likewise, it is not hard to predict that those on the other side of the issue may also discriminate against those who identify and practice a religion that maintains social beliefs they find repressive.

So what should an employer do if, instead of the elected county clerk, it was an employee of the county clerk who refused to issue the marriage license?  The EEOC notes that an employer must reasonably accommodate an applicant’s or employee’s sincerely held religious beliefs or practices if an accommodation will not impose more than a de minimis cost or burden on business operations.  The EEOC also provides the following guidance as to what a proper accommodation might be.

“When an employee’s religious belief or practice conflicts with a particular task, appropriate accommodations may include relieving the employee of the task or transferring the employee to a different position or location that eliminates the conflict.  Whether such accommodations pose an undue hardship on the employer will depend on factors such as the nature or importance of the duty at issue, the availability of others to perform the function, the availability of other positions, and the applicability of a collective bargaining agreement.”

The above seemingly suggests that the right answer would be to simply move the refusing employee to a position that does not require him/her to issue same-sex marriage certificates, so long as the move does not create an undue hardship. That said, doing so, could seemingly violate the same protections for those employees who might be gay.  That makes sense because the employer could be seen as condoning discrimination and failing to eliminate the potential for future harassment by knowingly keeping and accommodating employees that have outwardly expressed an allegedly discriminatory view point.  This would be particularly true for supervisory employees for whom an employer is held strictly liable.

While this argument currently plays out in the context of sexual orientation, through analogy it is not difficult to imagine an employee with certain religious beliefs refusing to provide service to a member of another religion, race, opposite gender, etc., or simply refusing to supervise gay employees.  Put in those contexts, it is difficult to see a court requiring (or even permitting) an employer from accommodating even a sincerely held religious belief that results in discrimination of a protected class of individuals.

This is not the first time in our history these types of issues have come to the national forefront.  In the wake of the Supreme Court case of Loving v. Virginia, 388, U.S. 1 (1967), there were those who refused to marry mixed-race couples – some claiming religion.  Indeed, this type of refusal occurred as late as 2009 when a Louisiana Justice of the Peace refused to marry a mixed race couple.  However, what makes recent events even more complicated, is that unlike the time after Loving, there will likely be allegations of discrimination on both sides of the issue.  In other words, in today’s climate, it is likely we will also see cases brought by religious employees who claim they are being discriminated against by those who feel their views are out of step, as well as by gay employees/customers.

In the end, as noted above, forecasting is difficult where two protected classes have the potential for conflict.  It is an issue that will need to be continually monitored.   Employers facing issues of accommodating an employee’s refusal to service a specific group of individuals will need to very carefully consider the potential risks associated with taking such action before deciding to grant or deny the accommodation.