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.

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